• Attorneys for unvaccinated Navy SEALs in a class action lawsuit against the Biden administration say their clients continue to suffer religious discrimination from the Navy even though the vaccine mandate has been withdrawn.
• New Navy guidance allows commanders to make career-altering decisions based on a person’s vaccination status.
• “It’s just a backdoor way for them to continue to harass, intimidate and punish servicemembers because of their faith,” Mike Berry, military affairs counsel at First Liberty Institute, told the Daily Caller News Foundation.

Navy SEALs in a court battle with the Biden administration over its alleged failure to consider their religious exemption requests to the COVID-19 vaccine mandate still suffer religious discrimination, according to a brief filed Friday.

The Department of Justice’s (DOJ) position is that now the Department of Defense (DOD) has complied with Congress’ order to rescind the mandate and servicemembers no longer face possible discharge for refusing the vaccine, courts should drop the case, Mike Berry, military affairs counsel at First Liberty Institute, told the Daily Caller News Foundation. However, the new policy leaves the door open to continued discrimination and treating unvaccinated members like “second-class citizens,” attorneys for the class action lawsuit that includes 26 Navy SEALs said in the brief.

“It’s important to keep in mind that since the very beginning, our position was never one way in which we challenged the authority to issue the mandate or or the existence of the mandate, or its or even its lawfulness,” Berry told the DCNF. “We only challenged the way that it was being discriminatorily enforced against service members of faith.”

The case centers around 26 Navy SEALs who filed a complaint in November 2021 alleging the Navy did not follow procedures for granting religious exemptions to the vaccine mandate, thereby violating the Religious Freedom Restoration Act, court documents show. The case was granted class action status in March and the entire Navy placed under an indefinite ban against discharging unvaccinated members.

The Navy published official guidance overturning the COVID-19 vaccine mandate on Jan. 11, following the Secretary of Defense’s order on Jan. 10, meaning members of the Navy are no longer required to be fully vaccinated against COVID-19 or subject to formal punishment for refusing the vaccine, and the court’s injunction no longer protects sailors.

“Voluntary cessation of challenged conduct, even by the government, does not deprive this Court of the power to determine its legality,” the brief states, referring to alleged violations of servicemembers’ first amendment rights.

In addition, the DOD memo and subsequent Navy guidance, NAVADMIN 005/23, offer commanders wide berth to make deployment decisions based on vaccination status, citing the need to minimize health risks to troops.

“To defend the nation, we need a healthy and ready force, this means a Navy and Marine Corps that is ready to deploy,” Secretary of the Navy Carlos Del Toro said in a memo titled ALNAV 009/23.

“We will continue to consider medical readiness, of which vaccination plays a key role, in all appropriate settings. All commanders have the responsibility and authority to maintain military readiness, unit cohesion, good order and discipline, and the health and safety of their commands,” Del Toro continued.

However, NAVADMIN 005/23 stipulates that no additional religious accommodations will be granted.

#NavyPartnerships keep the waters safe!

#USNavy, @uscoastguard, and @USArmy conducted an expertise exchange on forensics collection, combat defensive tactics, and first aid with partners during exercise #ObangameExpress23.

Read the full story here: https://t.co/X6PtKDanOD pic.twitter.com/U89yi3hYTZ

— U.S. Navy (@USNavy) January 29, 2023

Neither do they nullify other department-level rules regarding treatment of unvaccinated servicemembers, resulting in de facto opportunities for discrimination against servicemembers, the attorneys explain in Friday’s brief.

For example, Naval officer Lt. Levi Beaird filed for a religious accommodation to the vaccine that he never received, and the Navy is blocking him from deploying and completing other activities due to his unvaccinated status, Berry told the DCNF. If he doesn’t achieve certain career milestones, the Navy will require he repay a $75,000 retention bonus.

“It’s just a backdoor way for them to continue to harass, intimidate and punish servicemembers because of their faith,” Berry said.

Some of his Navy SEAL clients say their superiors are mulling the possibility of “rerating” the SEALs, or removing their Naval Special Warfare designation and placing them alongside “regular” sailors, he explained.

“Most of these guys, they joined the Navy to be Navy SEALs, and they didn’t become Navy SEALs by accident,” said Berry. Not only would the change in status rob the members of pride in serving in special operations, but it would also cut them off from financial bonuses.

The Fifth Circuit Court in New Orleans will hold oral arguments for the case on Feb. 6, First Liberty said in a press release on Monday.

“This religious discrimination must stop,” Berry said, according to the release.

DOD referred the DCNF to the DOJ. DOJ and the Navy did not immediately respond to the DCNF’s requests for comment.

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