UNITED STATES DISTRICT COURT
- Date
- 2021-12-15
Summary
A brief amicus curiae of the Foundation for Moral Law in support of plaintiffs in U.S. Navy SEALs 1-26, et al. v. Joseph R. Biden, Jr., et al., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, filed December 15, 2021 as Document 49. The brief argues that the First Amendment applies to military personnel, that religious exemption requests should be liberally construed, and that offering exemptions while categorically denying them is bad faith. It also argues that the military has no compelling interest in requiring the plaintiffs to receive COVID-19 vaccinations and that Jacobson v. Massachusetts and Sambrano v. United Airlines do not support the defendants. The brief asks the Court to grant injunctive and declaratory relief and is signed by Special Counsel James J. S. Johnson.
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Case 4:21-cv-01236-O Document 49 Filed 12/15/21 Page 1 of 18 PageID 2112
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-26; Case No. 4:21-cv-01236-O
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1;
and District Judge Reed O’Connor
U.S. NAVY DIVERS 1-3;
Plaintiffs,
v.
JOSEPH R. BIDEN, JR., in his official
capacity, etc., et al.,
Defendants.
BRIEF AMICUS CURIAE OF THE FOUNDATION
FOR MORAL LAW, IN SUPPORT OF PLAINTIFFS
___________________________________________________
In accordance with N.D.Tex. Local Rule 7.2(b), the Foundation for Moral Law
("Foundation" or “the Foundation”), as amicus curiae, submits this Brief supporting
Plaintiffs. As noted below, the interest of the Foundation in the outcome of this litigation
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is the Foundation’s concern for the strict interpretation of the United States Constitution
as intended by its Framers, and to the defense of religious liberty.
TABLE OF CONTENTS
TABLE OF CONTENTS....................................................................................................2
TABLE OF AUTHORITIES...............................................................................................3
INTEREST OF THE AMICUS...........................................................................................4
ARGUMENT.......................................................................................................................6
I. The Constitution, including the First Amendment, clearly applies to military
personnel.....................................................................................................6
II. Religious exemption requests should be liberally construed in favor of the
persons making the requests.......................................................................8
III. Offering exemptions but categorically denying them is bad faith..................12
IV. The military has no compelling interest in requiring Plaintiffs to submit to the
COVID-19 vaccinations............................................................................14
V. Jacobson v. Massachusetts does not support Defendants' position ............... 14
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VI. Sambrano v. United Airlines is easily distinguished rom this case…………16
CONCLUSION..................................................................................................................17
TABLE OF AUTHORITIES
Cases
Adkins v. Rumsfeld, 389 F.Supp.2d 579 (2005) ………………..……………………….. 7
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ……………………………. 10
Carlson v. Schlesinger, 511F. 2d 1327 (D.C. Cir. 1975) ……..………………………… 7
Chappell v. Wallace, 462 U.S. 296 (1983) ……………………………………………… 7
Gateway City Church v. Newsom, 141 S.Ct. 1460 (2021) ……………..……………… 16
Greer v. Spock, 424 U.S. 828 (1976) …………………………………………………… 7
Jacobson v. Massachusetts, 197 U.S. 11 (1905) ………………………...……….. 14-15
Little Sisters of the Poor, etc., v. Pennsylvania, 140 S.Ct. 2367 (2020) ……………….. 10
United States v. Macintosh, 283 U.S. 605 (1931) ……………………………...………. 12
Prince v. Massachusetts, 321 U.S. 158 (1944) ……………………………………..…. 15
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020) …………..…….. 16
Sambrano v. United Airlines, No. 4:21-cv-1074-P (N.D.Tex., Nov. 8, 2021) ….….. 16-17
South Bay United Pentecostal Church v. Newsom, 141 S.Ct. 716 (2021) ……..……… 16
Thomas v. Review Board, 450 U.S. 707 at 715-16 (1980) ………………………..…. 9-10
United States v. Ballard, 322 U.S. 78 (1944) ……………………………………….….. 8
Whole Woman’s Health v. Paxton, 10 F.4th 430 (5th Cir. 2021) ……………………. 10-11
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Statutes
Religious Freedom Restoration Act of 1993, codified at 42 U.S.C. § 2000bb ……….…. 8
Other Authorities
Holy Bible, Genesis 2:7 & 9:1-7; Exodus 20:13 & 21:22-25; Leviticus 24:17;
Deuteronomy 23:18; Jeremiah 32:35; Matthew 27:1-10; Acts 15:20, 39 & 21:25; Romans
13:1-7 & 14:23; 1st Corinthians 6:19-20; Revelation 13:15-17 ….……………….… 10-11
U.S. Constitution, First Amendment ……………………….………...…………… passim
U.S. Constitution, Fifth Amendment ………………………………………...………… 10
Executive Order 13798 (President Donald J. Trump, May 4th, 2017) ………………… 7-8
DODI 1300.17 ……………………………………………..…………………………….. 8
SECNAVINST 1730.8B ……………………………………...…………………………..8
Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188 (1962) ….....….. 7
https://academic.oup.com/jlb/article/7/1/lsaa058/5878809 (Gunnarsdottir, Journal of Law
& the Biosciences, Applying the Proportionality Principle to COVID-19 ...................... 10
https://catholic-factchecking.com/2021/07/vaccine-exemption-resource-for-individuals
(The National Catholic Bioethics Center, Vaccine Exemption Resource …) …………. 10
https://federalnewsnetwork.com/defense-main/2021/...("The Marine Corps has not
granted any religious exemptions", November 30,2021) …………………………….... 12
https://news.usni.org/2021/11/01/navy-approves...("Navy Approves Five Permanent
Medical, No Religious...") …………………………………………………………...… 13
https://www.defenseone.com/threats/2021/11/zero-religious-exemptions-granted-covid-
vaccines-air-force-deadline-passes/186601/ ("Zero Religious Exemptions Granted for
COVID Vaccines in Air Force, As Deadline Passes: Nearly 5,000 religious exemptions
are still pending approval," November 3, 2021) ………………………………………. 13
https://www.lifenews.com/2021/12/10/biden-ignores-federal-law-denies ("Biden Ignores
Federal Law, Denies 17,000 Requests for Religious Exemptions to COVID Vaccine
Mandate", December 10, 2021) …………………………………………………...…… 13
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https://www.msn.com/en-us/news/us/air-force-discharges-27-service-members-in-first-
apparent-dismissals-over-vaccine-refusal/ar-AARNRji?ocid=uxbndlbing ("Air Force
discharges 27 service members in first apparent dismissals …" Dec 14, 2021) …... 13-14
https://www.navytimes.com › your-navy › 2021/12/02 ("The Navy hasn't approved any
religious exemptions for sailors" December 2, 2021) …………………………….….. 12
INTEREST OF THE AMICUS1
The Foundation for Moral Law ("Foundation") is a 501(c)(3) non-profit, non-
partisan organization dedicated to religious liberty and to the strict interpretation of the
Constitution as intended by its Framers. The Foundation is especially concerned about
religious freedom for military personnel. The founder of the Foundation, Judge Roy
Moore, is a graduate of the U.S. Military Academy and a Vietnam veteran. The
Foundation's Senior Counsel and primary author of this brief, John Eidsmoe, served
twenty-three years as a U.S. Air Force Judge Advocate retiring at the rank of Lt. Colonel,
and subsequently served as a Chaplain with the Mississippi State Guard, retiring at the
rank of Colonel (MS); he is also Professor of Constitutional Law with the Oak Brook
College of Law and Government Policy.
The Foundation has received more requests for assistance on the issue of religious
exemptions from COVID vaccination requirements than on any other issue since we were
founded in 2004. Within the last six months, most of these requests have come from
military personnel and/or civilian employees of the military. These include a guardsman
who has served nineteen years with an unblemished record and is now uncertain whether
he will be allowed to retire, cadets and midshipmen at military academies who are going
1
No party or party's counsel authored this brief in whole or in part, or contributed money that was intended
to fund its preparation or submission; and no person other than the amicus curiae, its members, or its
counsel, contributed money that was intended to fund the preparation or submission of this brief.
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home for Christmas vacation uncertain whether they will be allowed to return, a military
academy instructor who may not be allowed to retire in lieu of court-martial even though
he has given outstanding service for well over twenty years, and many others who serve
in the Air Force, Army, Navy, Marines, Coast Guard, Space Force, and Special
Operations Command (special operations forces), as well as in various guard and reserve
units. These fine patriotic personnel desire nothing but to serve their country honorably,
but now they and their families face career disruption, loss of salary and benefits,
disciplinary action, disparagement of their reputations, and untold emotional distress.
The Foundation believes these and countless other military personnel should not
have to sacrifice their careers because of a religious conviction that in no way prevents
them from being good soldiers and sailors. The Foundation further believes and
advocates that the U.S. military should not lose the valuable services of such outstanding
and conscientious military personnel.
ARGUMENT
The Foundation fully supports the arguments of Plaintiffs in their Complaint and
of the America First Policy Institute in their amicus brief and will not duplicate those
arguments. Rather, the Foundation raises the following points:
I. The Constitution, including the First Amendment, clearly applies to
military personnel.
The courts have never given any credence to the notion that soldiers and sailors
give up their constitutional rights when they join the military. Rather, the courts have
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recognized that military personnel who swear and oath to support and defend the
Constitution of the United States are entitled to the protection that the Constitution
provides to all.
Servicemen and women are entitled to protection of free speech and free exercise
of religion under the First Amendment, which states,
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances. [emphasis added]
Servicemen and women are also entitled to exercise these rights; they are not stripped
away when they serve in the United States military. “The military enclave is kept free of
partisan influence, but individual servicemen are not isolated from participation as
citizens in our democratic process.” Greer v. Spock, 424 U.S. 828, (1976). As the
Supreme Court unanimously stated, “Our citizens in uniform may not be stripped of basic
rights simply because they have doffed their civilian clothes.” Chappell v. Wallace, 462
U.S. 296, 304, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983) (quoting Warren, The Bill of
Rights and the Military, 37 N.Y.U.L.Rev. 181, 188 [1962]). See also, Adkins v.
Rumsfeld, 389 F.Supp.2d 579 (2005); Carlson v. Schlesinger, 511F. 2d 1327 (D.C. Cir.
1975). The First Amendment applies to all servicemen and servicewomen without
exception. They all deserve “free exercise” of their sincerely held religious beliefs.
Furthermore, On May 4, 2017, the President of the United States issued Executive
Order 13798, "Promoting Free Speech and Religious Liberty," which states in part:
Section 1. Policy. It shall be the policy of the executive branch to
vigorously enforce Federal law's robust protections for religious freedom.
The Founders envisioned a Nation in which religious voices and views
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were integral to a vibrant public square, and in which religious people and
institutions were free to practice their faith without fear of discrimination
or retaliation by the Federal Government. For that reason, the United
States Constitution enshrines and protects the fundamental right to
religious liberty as Americans' first freedom. Federal law protects the
freedom of Americans and their organizations to exercise religion and
participate fully in civic life without undue interference by the Federal
Government. The executive branch will honor and enforce those
protections.
Sec. 2. Respecting Religious and Political Speech. All executive
departments and agencies (agencies) shall, to the greatest extent
practicable and to the extent permitted by law, respect and protect the
freedom of persons and organizations to engage in religious and political
speech.
"All executive departments and agencies" clearly includes the Department of Defense.
The Religious Freedom Restoration Act of 1993, Public Law No. 103-141, 107
Stat. 1488, 42 U.S.C. § 2000bb, also applies to the Department of Defense (see DODI
1300.17 and SECNAVINST 1730.8B) and provides that the government may not
substantially burden one's free exercise of religion without a compelling interest that
cannot be achieved by less restrictive means. Defendants fail this “least restrictive” test.
II. Religious exemption requests should be liberally construed in favor of the
persons making the requests.
A government official may not refuse to honor a person’s religious beliefs and
practices simply because he disagrees with them, finds them unpersuasive, or even finds
them inconsistent and therefore indefensible. Rather, government officials and courts
may consider whether or not beliefs are religious and sincere. As the Supreme Court said
in United States v. Ballard, 322 U.S. 78 at 87 (1944), a case involving a man convicted of
mail fraud because he claimed to be in communication with angels,
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Men may believe what they cannot prove. They may not be put to the
proof of their religious doctrines or beliefs. Religious experiences which
are as real as life to some may be incomprehensible to others. Yet the fact
that they may be beyond the ken of mere mortals does not mean they can
be made suspect before the law.
Nor must one's religious beliefs be part of the official doctrine of a church or shared by
all members of a denomination. As the Court said in Thomas v. Review Board, 450 U.S.
707 at 715-16 (1980),
In reaching its conclusion, the Indiana court seems to have placed considerable
reliance on the facts that Thomas was "struggling" with his beliefs and that he was
not able to "articulate" his belief precisely. It noted, for example, that Thomas
admitted before the referee that he would not object to "working for United States
Steel or Inland Steel . . . produc[ing] the raw product necessary for the production
of any kind of tank . . . [because I] would not be a direct party to whoever they
shipped it to [and] would not be . . . chargeable in . . . conscience. . . ." Ind., 391
N.E.2d, at 1131.
The court found this position inconsistent with Thomas' stated opposition to
participation in the production of armaments. But Thomas' statements reveal no
more than that he found work in the roll foundry sufficiently insulated from
producing weapons of war. We see, therefore, that Thomas drew a line, and it is
not for us to say that the line he drew was an unreasonable one. Courts should not
undertake to dissect religious beliefs because the believer admits that he is
"struggling" with his position or because his beliefs are not articulated with the
clarity and precision that a more sophisticated person might employ.
The Indiana court also appears to have given significant weight to the fact that
another Jehovah's Witness had no scruples about working on tank turrets; for that
other Witness, at least, such work was "scripturally" acceptable. Intrafaith
differences of that kind are not uncommon among followers of a particular creed,
and the judicial process is singularly ill equipped to resolve such differences in
relation to the Religion Clauses. One can, of course, imagine an asserted claim so
bizarre, so clearly nonreligious in motivation, as not to be entitled to protection
under the Free Exercise Clause; but that is not the case here, and the guarantee of
free exercise is not limited to beliefs which are shared by all of the members of a
religious sect. Particularly in this sensitive area, it is not within the judicial
function and judicial competence to inquire whether the petitioner or his fellow
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worker more correctly perceived the commands of their common faith. Courts are
not arbiters of scriptural interpretation.
See also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724, 134 S.Ct. 2751, 189
L.Ed.2d 675 (2014), recognizing religious liberty exemption rights, rooted in sincerely
held religious beliefs, as well as First Amendment-anchored analysis within Little Sisters
of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S.Ct. 2367, 207 L.Ed.2d
819 (2020), recognizing the propriety of, if not also the need for, a religious exemption to
federal healthcare-regulating statutes. As a matter of Due Process (under the Fifth
Amendment) Plaintiffs deserve constitutionally satisfactory protection of their religious
exercise rights, yet Plaintiffs’ religious liberties (which deserve protection via
recognizing exemptions) are not being recognized by Defendants. Plaintiffs’ evidences
(as summarized in their Complaint) show that these Defendants have failed to show good
faith in how they are mistreating the religious rights of these Plaintiffs.
Religious beliefs raised by persons who have sought assistance from Amicus
Foundation include the following:
(1) That the body is the temple of the Holy Spirit and therefore should not be
defiled with an experimental drug that could be dangerous. Some Roman Catholic
theologians have articulated an ethical position called “therapeutic proportionality” which
means that because the human body is God’s creation (Genesis 2:7) and the temple of the
Holy Spirit (1st Corinthians 6:19-20), a person has a duty to God to weigh the possible
benefits of medicine against possible risks and adverse consequences, and to refuse
medical treatment if risks and adverse consequences outweigh the benefits. See
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https://catholic-factchecking.com/2021/07/vaccine-exemption-resource-for-individuals/;
https://academic.oup.com/jlb/article/7/1/lsaa058/5878809.
(2) That some COVID vaccines are made from, or were developed from, cells or
cell lines from aborted human fetuses, and accepting the vaccine(s) makes the recipient
an accessory to abortion, which many believe to be against God's laws. See Whole
Woman’s Health v. Paxton, 10 F.4th 430 (5th Cir. 2021), illustrating tragic aspects of
abortion. Thus, those servicemen and servicewomen who sincerely hold pro-life Bible-
based beliefs that abortion is wrong and sinful (see Genesis 9:1-7; Exodus 21:22-25; Acts
15:20,29 & 21:25; etc. – see also, accord, Romans 14:23; Matthew 27:1-10; Exodus
20:13; Leviticus 24:17; Deuteronomy 23:18; Jeremiah 32:35; etc.) should be exempted
from being required or coërced to accept any such COVID-19 vaccines.
(3) That when the COVID-19 vaccine is imposed so strongly that a vaccination
passport or the equivalent becomes necessary for being allowed to fly, enter stores, obtain
food or other necessities, or participate in public events, it becomes a type of what some
believe is the “mark of the beast” of Revelation 13:15-17 (or that it serves as a prototype
thereof, such that accepting it is aiding and abetting the anticipated Revelation 13’s
“mark of the beast”).
(4) That God has established civil government and has given civil government
certain limited authority (Romans 13:1-7), but that when government exceeds its God-
given (i.e., legitimate) authority, it becomes tyrannical, and the individual has a duty
before God to resist the unlawful mandates of a tyrannical government.
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Plaintiffs' religious exemption requests should be construed liberally in their
favor; the law protects not just “exercise”, but “free exercise” of religion. Whether one
agrees with them or not, these beliefs are religious and those who hold them are sincere.
Res ipsa loquitur; the thing speaks for itself. The very fact that Plaintiffs are willing to
jeopardize their livelihoods, careers, and reputations because of their beliefs, is of itself
proof of their sincerity. As the Supreme Court recognized in United States v. Macintosh,
283 U.S. 605,633-634 (1931):
...in the forum of conscience, duty to a moral power higher than the state has
always been maintained. The reservation of that supreme obligation, as a matter
of principle, would unquestionably be made by many of our conscientious and
law-abiding citizens.
...
The battle for religious liberty has been fought and won with respect to religious
beliefs and practices, which are not in conflict with good order, upon the very
ground of the supremacy of conscience within its proper field. What that field is,
under our system of government, presents in part a question of constitutional law,
and also, in part, one of legislative policy in avoiding unnecessary clashes with
the dictates of conscience.
III. Offering exemptions but categorically denying them is bad faith.
As Plaintiffs have alleged in paragraphs 44 and 45 (pages 7-8) of their Complaint,
the Navy and other branches of the armed forces have established forms and policies for
the granting of religious exemptions from the vaccination requirement. However, as
Plaintiffs state in paragraph 96 (page 17) of their Complaint, "No Plaintiff has received
an approved religious accommodation request, and they are unaware of any similarly
situated Service Member who has." Likewise, the Foundation for Moral Law is unaware
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of any service member who has been granted a religious exemption; see
https://federalnewsnetwork.com/defense-main/2021/...("The Marine Corps has not
granted any religious exemptions", November 30,2021); https://www.navytimes.com ›
your-navy › 2021/12/02 ("The Navy hasn't approved any religious exemptions for sailors"
December 2, 2021); https://www.defenseone.com/threats/2021/11/zero-religious-
exemptions-granted-covid-vaccines-air-force-deadline-passes/186601/ ("Zero Religious
Exemptions Granted for COVID Vaccines in Air Force, As Deadline Passes: Nearly
5,000 religious exemptions are still pending approval," Nov. 3, 2021);
https://news.usni.org/2021/11/01/navy-approves...("Navy Approves Five Permanent
Medical, No Religious..."); https://www.lifenews.com/2021/12/10/biden-ignores-federal-
law-denies ("Biden Ignores Federal Law, Denies 17,000 Requests for Religious
Exemptions to COVID Vaccine Mandate", Dec. 10, 2021); https://www.msn.com/en-
us/news/us/air-force-discharges-27-service-members-in-first-apparent-dismissals-over-
vaccine-refusal/ar-AARNRji?ocid=uxbndlbing ("Air Force discharges 27 service
members in first apparent dismissals over vaccine refusal" Dec 14, 2021).
It is wrong to deny exemptions to those who have sincere religious objections to
vaccination. But to offer religious exemptions and create forms and procedures to apply
for and process exemption requests, and then routinely deny all exemption requests, is
more than wrong, it is duplicitous and evidence of bad faith.
Defendants may argue that they cannot grant any exemptions because of military
necessity. However, as Plaintiffs have observed in Paragraph 99 (page 17) of their
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Complaint, and as Amicus has demonstrated above, Defendants have granted medical
exemptions from the vaccination.
There appears to be no reason why the military must deny religious exemptions
but may grant medical exemptions. There appears to be no reason why granting religious
exemptions would pose a danger to the overall health and fitness of military personnel,
but granting medical exemptions would pose no such danger. According to the MSN
article cited above, "The Air Force ... has granted roughly 1,200 total medical and
administrative exemptions to active-duty service members."
By granting medical exemptions, Defendants have in effect waived any argument
that they must deny all exemptions for the health and safety of military personnel.
IV. The military has no compelling interest in requiring Plaintiffs to submit
to the COVID-19 vaccinations.
Amicus defers to the arguments presented and evidence cited by Plaintiffs in
Paragraphs 67, 68, 69, 70, 71, and other portions of their Complaint, and that presented in
the brief of Amicus America First Policy Institute, to establish that the military has no
compelling interest in requiring Plaintiffs to submit to the COVID-19 vaccinations.
Although the military has utilized vaccinations in the past, none has involved the
complex and controversial medical, scientific, religious, sociological, and religious issues
triggered by the COVID-19 vaccine.
Moreover, even if a compelling interest was shown, the burden is on Defendants
to show less restrictive means (e.g., masking) would not fulfill that compelling interest.
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V. Jacobson v. Massachusetts, 197 U.S. 11 (1905), does not support
Defendants' position.
Defendants may rely upon Jacobson v Massachusetts to support their authority to
require vaccination. However, the juristic logic of Jacobson does not support their
position, for the following reasons:
(1) Jacobson involved a state law that empowered health departments to
compel vaccinations to prevent the spread of smallpox, based on the State's inherent
police power. However, under constitutional federalism, the federal government does not
have such a police power.
(2) Mr. Jacobson simply argued that the law violated his right to decline
vaccination; he did not raise a religious objection to vaccination. 2 Plaintiffs herein raise
First Amendment-protected rights that were not raised in Jacobson, so Jacobson is thus
distinguishable beyond relevance herein.
(3) Jacobson did restrict state authority to regulate in ways that are “beyond
all question, a plain, palpable invasion of rights secured by the fundamental law,” e.g.,
constitutional guarantees in our Bill of Rights.
(4) Jacobson was a 1905 case, decided before the courts developed the “strict
scrutiny” doctrine that government can infringe fundamental rights only by
2
A subsequent case, Prince v. Massachusetts, 321 U.S. 158 (1944), said that “The right
to practice religion freely does not include liberty to expose the community or the child to
communicable disease or the latter to ill health or death.” But that was dicta, not holding.
Prince involved a Jehovah's Witness who had her child with her while preaching in
public, and no issue of disease or epidemic was present in the case. And as the Court
expressly said in Prince, “Our ruling does not extend beyond the facts the case presents.”
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demonstrating a compelling state interest that cannot be achieved by less restrictive
means, and before the enactment of RFRA.
Furthermore, in three recent decisions the Supreme Court has upheld religious
liberty against state COVID restrictions: Roman Catholic Diocese of Brooklyn v. Cuomo,
592 U.S. ___, 141 S.Ct. 63 (2020) (note concurring opinion by Gorsuch, J., re application
of Jacobson); South Bay United Pentecostal Church v. Newsom, 592 U.S.___, 141 S.Ct.
716 (2021); Gateway City Church v. Newsom, ___ U.S. ___, 141 S.Ct. 1460 (2021).
Though these cases don’t address vaccination, the Court clarified that our basic civil
liberties, especially our religious liberties, are not suspended during a pandemic.
VI. The Sambrano v. United Airlines ruling is easily distinguished herefrom.
Amicus is aware that on November 8, 2021, Judge Mark L. Pittman of this District
recently denied a motion for preliminary injunction in Sambrano v. United Airlines, No.
4:21-cv-1074-P. However, that case is far different from Plaintiffs’ case herein, for at
least the following reasons:
1. This case involves the U.S. Department of Defense, unlike Sambrano, which
involves United Airlines a private entity. Thus, the U.S. Government, as an employer,
has no private sector liberties to limit its Due Process obligations to U.S. Navy personnel.
2. Military authorities can threaten or punish resistance with orders which, if not
followed, can result in courts-martial and other forms of discipline. United Airlines can
only threaten economic consequences. Unique to the Government is power to use force.
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3. United Airlines had granted employees with religious objections the
accommodation of unpaid leave. The issue was whether this was sufficient
accommodation. Defendants in this case have not granted any accommodation at all.
4. Because United Airlines had "only" placed employees on unpaid leave rather
than firing them, the irreparable injury in Sambrano was far less than the irreparable
injury in this case in which Plaintiffs are faced with permanent discharge that could injure
their reputations. There is, therefore, in the instant case a much greater need to preserve
the status quo by a preliminary injunction that will preserve Plaintiffs' status until this
matter has been fully adjudicated.
CONCLUSION
With great discipline and at great sacrifice, Plaintiff Navy SEALS (as well as the
other Navy plaintiffs herein) have pledged their lives to the defense of their country.
And now the leadership of their country appears to be making war upon them,
threatening their livelihoods, their careers, and their reputations, simply for obeying God
in a land dedicated to religious liberty.
In their defense, they place their trust the Constitution they have taken an oath to
support and defend, and the courts who have the duty of enforcing the Constitution.
We pray the courts will not fail them in their hour of need.
This Court should grant all Plaintiffs prompt and comprehensive relief, including
injunctive and declaratory relief.
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Case 4:21-cv-01236-O Document 49 Filed 12/15/21 Page 18 of 18 PageID 2129
DATED: December 15th, A.D.2021.
Respectfully submitted,
JAMES J. S. JOHNSON
/s/ James J. S. Johnson
Texas Bar # 10741520
Special Counsel
FOUNDATION FOR MORAL LAW
P.O. Box 29112, Dallas, Texas 75229
214-615-8314 telephone; 214-615-8295 FAX
Email: profjjsj@aol.com
CERTIFICATE REGARDING SERVICE
I certify that on December 15th of A.D.2021, a true copy of this document is being filed
electronically (via CM/ECF) and thus will be served upon all counsel of record.
/s/ James J. S. Johnson
Certifying attorney
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