Vaccine Mandate Enforcement Against Air Force Officer Blocked

U.S. military leaders may not enforce a Covid-19 vaccine mandate against a reserve officer over her religious objections because their actions likely violate the First Amendment and the Religious Freedom Restoration Act, a federal court in Georgia said.

Secretary of Defense Lloyd Austin III, Secretary of the Air Force Frank Kendall III, and Surgeon General of the Air Force Robert Miller are blocked, for now, from requiring the unnamed officer to take the vaccine or “lose her livelihood,” the U.S. District Court for the Middle District of Georgia said.

“Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was ‘by all accounts, ... theater,’” Judge Tilman E. Self III wrote in the order granting the officer a preliminary injunction.

The officer, who has served in the U.S. Air Force for more than 25 years and is now on reserve status, applied for a religious exemption to the mandate. Her request was denied, the court said.

She sued to block the mandate, arguing the Air Force left her with no choice other than to take the shot against her religious objections or lose her job.

Military matters normally should be resolved by the military, the court said. But this suit fell within an exception to that rule and belonged in a courtroom, as the officer alleged the deprivation of a constitutional right, Self said.

RFRA provides that the government may not substantially burden a person’s religious exercise through a neutral law of general applicability unless the burden furthers a compelling government interest and the law is the least restrictive means of serving that interest.

The officer stated a “classic case” of substantial pressure, as she was forced to choose between violating her religious beliefs and losing her job, the court said.

There is no doubt the government has a compelling interest in stopping the spread of Covid-19, the court said. But the military leaders didn’t show how requiring this officer to be vaccinated would serve that interest when the Air Force has granted over 3,000 secular exemptions to other members, it said.

Additionally, there was no showing that vaccines are the least restrictive means of serving the Air Force’s interests, the court said. The service requires members to practice social distancing, wear masks, and undergo regular testing, it said. There’s no proof those measures haven’t worked, it said.

The officer also is likely to prevail on her First Amendment claim, as the Air Force hasn’t applied its vaccine requirement uniformly, the court said. It has exempted members based on medical or administrative reasons, but has uniformly denied requests for religious accommodations, it said.

“With such a marked record disfavoring religious accommodation requests, the Court easily finds that the Air Force’s process to protect religious rights is both illusory and insincere,” Self wrote in Tuesday’s opinion.

Hirsch Law Office LLC, Hochschild Law Firm LLC, and the Thomas More Society represent the officer. The U.S. Department of Justice represents the military leaders.

The case is Air Force Officer v. Austin, M.D. Ga., No. 22-cv-9, 2/15/22.