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There’s yet another lawsuit challenging the constitutionality of the military’s COVID-19 vaccine mandate. The latest class action targets the Air Force’s religious accommodation process, arguing that process is set up in such a way that getting a religious exemption to the vaccine is almost impossible. The plaintiffs argue that violates the Religious Freedom Restoration Act and the First Amendment. Mike Barry is senior counsel at First Liberty Institute, a nonprofit legal group that focuses on religious liberty issues. He’s one of the attorneys representing the airmen challenging the mandate, and he spoke more to Jared Serbu on the Federal Drive with Tom Temin.

Interview transcript:

Jared Serbu: Mike, thanks for being here. And let’s start by talking a bit about your clients, where they are in the Air Force vaccine exemption process and what led you to file the suit?

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Mike Barry: Well, First Liberty Institute represents nine Air Force members who are challenging the Air Force’s enforcement of its vaccine mandate. And our clients are, they’re stationed in various locations, quite a few of them are here in Texas. And they have different ranks, different different job responsibilities in the Air Force, a number of them are actually pilots in the Air Force. And so all of them have requested religious accommodations from the vaccine mandate, which is, of course, something that DoD regulations and even federal law, clearly permit and allow. And, in fact, the Department of Defense allows medical exemptions and administrative exemptions from the vaccine. But although the Air Force has approved hundreds of medical and administrative exemptions, they have only approved a very small handful of religious exemptions and even the ones that they’ve approved by their own admission, they are only for Air Force members who are basically already separating or are already on their way out. So our lawsuit is really predicated on on the argument that this is all a sham, that the Air Force is not following the Constitution. They’re not following federal law. They’re not following their own regulations. And they’re discriminating against people in the military.

Jared Serbu: This case seems remarkably similar to another case that I think First Liberty was also counsel on with a group of Navy SEALs before the very same judge, I believe too. You got a preliminary injunction in that case and a favorable ruling from the Fifth Circuit. Are there major differences here? The story seems pretty similar to what’s going on with these airmen.

Mike Barry: No, really, I mean, this is happening across the entire Department of Defense. The only difference is really is that each branch of the military has their own internal regulations and policies for how they adjudicate these things. And so of course, that means you have to bring different lawsuits on behalf of people, depending on what branch of the military that they’re in. But in terms of the underlying legal issues that are raised, no, they’re exactly the same. The military across the board is discriminating discriminating against people of faith. They are, they’re ignoring the law, they’re ignoring the Constitution. And really, the greatest harm here is not just to our members of the military who are suffering under this, but it’s actually to our nation. Our military, I mean, you can open any news feed that you want. And you’ll see headline after headline talking about the recruiting and retention woes that plague our military right now. We are hemorrhaging people like crazy, and we’re having a really hard time recruiting capable people to join our military. That means that this is quickly becoming a national security concern. We are kicking out people by the thousands. And yet we’re short, we’re saying that we’re having a hard time recruiting people. And in one instance, I saw one of the head people for recruiting in the military said, “We’re having a really hard time identifying, basically people who are eligible to serve in the military. And one of the reasons for that is if they if they’re between the ages of 17 and 23, and they’re not vaccinated, we’re not even willing to talk to them.” And so they’re basically closing off an entire segment of society in a discriminatory manner. Because of those people’s religious beliefs and religious convictions. I mean, this is quickly becoming a national security issue for our nation.

Jared Serbu: I want to go back to what you said earlier about the process being a sham, because I want to try and draw how much of an issue that actually is, in these cases. In a hypothetical alternate universe where it were the Navy and the Air Force, the rest of the services had an exemption process or a waiver process that did look more credible to you and to the court, do you lose these cases?

Mike Barry: No, I think what happens is they become much smaller cases, right? They become the exception and not the norm. I think that a process that is not a sham looks a little bit something like the military regardless of what branch we’re talking about, takes an honest look and says okay, what is this person’s job or their function? And is there somewhere else we can assign them where maybe they’re at less risk of of COVID transmission or they start looking at the data, right, the actual CDC data and the COVID day they start look kicking it around and saying, You know what? Starbucks, for example, doesn’t have a vaccine requirement. And yet people who work and – I mean, you’re coming in very close proximity with thousands of people per day, hundreds of people per hour. And at least in the Starbucks is that I’ve been in recently where they’ve been packed in like sardines. And yet they say, you know what, we now believe that it’s okay, for our employees to not be vaccinated, it’s okay for our customers to not be vaccinated. And I haven’t heard of a single Starbucks shutting down. Same thing on airplanes, right? Commercial airlines has said, you know what, we’re gonna lift the mask mandate. Of course, that came because of a federal judge’s ruling. But nevertheless, how many, I fly almost on a weekly basis for my job. And I have yet to hear of a single flight being canceled because there was a COVID outbreak at 30,000 feet. So everywhere else in society has been able to figure this out, but our military hasn’t because they take such an iron fisted, draconian approach to everything. And to say, basically, no, you will do this because we said so and if you don’t, we’re gonna kick you out. And then if you come back and you say, oh, no, but my exemption is a medical exemption [see Contraindications and Precautions] not a religious exemption, then the military says, Oh, well, in that case, we welcome you with open arms. And that is textbook discrimination, right? When you treat people who have a medical exemption for more favorably than you treat somebody who has a religious exemption, that is textbook discrimination, and that’s what’s happening. And that’s why this is a sham.Jared Serbu: The Air Force case is a putative class action. If the court certifies the class does the class become all unvaccinated airmen or everyone who’s been denied a religious exemption? How large is the class?

Mike Barry: It would be everyone who is requested and been denied a religious accommodation from the vaccine mandates, specifically the COVID vaccine mandate. So that, right now that number is several thousand. I know, off the top of my head, the number in the Navy is somewhere near 4,100. It’s just under 4,100. The Air Force number is probably in the same ballpark.

Jared Serbu: Got it. I think one of the military’s concerns is what’s the limiting principle here? Because how do you avoid getting to the point where anyone can deny or refuse any lawful order by claiming that they have a sincerely held religious belief that would be encumbered by it?

Mike Barry: Well, I mean, that’s the beauty of the way that the law works, right? The Religious Freedom Restoration Act (RFRA), it doesn’t, the sincerity issue is what everybody seems to be concerned with, right? Well, what if somebody’s not really sincere? And what if this is political ideology masquerading as as religious piety? Right? Well, the good news is the law is set up so that the government actually can win those cases, when all they have to do is demonstrate that they have a compelling interest. And the way that they are accomplishing their compelling interest is the least restrictive means on the person’s religious beliefs. So if you can find a way to accommodate somebody’s religious beliefs, in a less burdensome way right, a way that’s less obstructive or cumbersome on their religious exercise, then if the person is really sincere in their religious beliefs, they’ll usually accept that. They’ll accept that alternative and say, okay, you know, I’m willing to do that instead. So for example, in a different context, somebody who says that they’re a Sabbath observer, and they cannot work on the Sabbath, but that they’re willing to trade ships with somebody, most of the cases I’ve seen, they’re actually willing to take, what most people consider be a less favorable shift. Right? So if they work Sunday afternoon, or if they’re scheduled to work a particular Sunday afternoon, they say, “Well, I’m a Sabbath observer on Sundays. Hey you have the Friday night shift, right? I’m happy to take that one from you. If you want to swap with me,” and they do that through the employer, or their employer offers that. They’re usually willing to accept that and say, look, yeah, I’m happy to. Night shifts aren’t popular, especially on Friday night, and things like that. But I’m willing to do that. It’s really the same thing in the military context with this vaccine, where they’re saying, Look, teleworking or, doing a lot of these other measures, right, social distancing, masking, testing, whatever the case might be. They’re not pleasant. They’re burdensome, but the person says, “But you know what, at the end of the day, I’m not have to inject something in my body that violates my religious beliefs. I’m willing to go through that.” And usually when somebody is willing to go through those measures, that demonstrates a degree of sincerity. The problem here is that the government is simply unwilling to offer any compromises. They’re basically saying, “Nope, the vaccine is the only way that we’re going to allow you to continue to remain in the service.” And one of the things I forgot to mention was the whole concept of natural immunity. Why is the DoD ignoring natural immunity when the CDC and other epidemiologists and medical experts have all generally agreed natural immunity is a real thing. And in some cases, according to some reports, it’s even more durable than the vaccine and you don’t have to get boosters and things like that. But the DoD is just saying “Nope, we won’t even recognize that we won’t even consider it,” even though they consider natural immunity for other communicable diseases and infections and things like that.

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Jared Serbu: Last thing, there’s a lot of these vaccine cases, even just military vaccine cases floating around in various district courts and circuits the moment.

Mike Barry: I think there’s almost 30 now.

Jared Serbu: Yeah, there’s a ton. Assuming, maybe I’m assuming too much. But if they eventually get consolidated in the Supreme Court grants cert [writs of certiorari] on something that considers the issue more broadly, would you expect that we’ll get a case or a ruling that goes beyond the narrow issue of vaccines and gives the military some guidance as to how RFRA and broader religious accommodation issues apply to the military?

Mike Barry: Probably not at the Supreme Court level. The Supreme Court is historically, they only address the legal issues that are brought before them, right. They don’t offer what are, in the legal speak, we call advisory opinions. In other words, it’s usually ill-advised to take an opinion on one subject or one issue, and then try to extrapolate and say and that and say, Well, that should apply across the board to all issues. So that’s usually unwise, and so practitioners who are in front of the Supreme Court frequently like us, we usually know not to do that. So I think that if one of these cases does end up in front of the Supreme Court, it will probably be addressed just on the narrow vaccine issue. And now people will be able to take the analysis Supreme Court used and say, “Okay, the way that they analyzed this issue, that might give us some indication of how they would analyze other issues,” right. But what we can’t do is say, well, because they ruled this way, in this case, this is how they’re going to rule in all cases.

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