UNITED STATES DISTRICT COURT
- Date
- 2022-02-02
Summary
A motion for leave to file brief and brief amicus curiae of the Foundation for Moral Law in support of the plaintiff in Air Force Officer v. Lloyd J. Austin, III, et al., Case No. 5:22-cv-00009-TES, filed February 2, 2022 as Document 39 in the U.S. District Court for the Middle District of Georgia, Macon Division. The motion describes the foundation as a 501(c)(3) nonprofit and asks permission to file the brief. The brief argues that the First Amendment applies to military personnel, that religious exemption requests should be liberally construed, and that the Air Force has no compelling interest in requiring the COVID-19 vaccinations. It also argues that Jacobson v. Massachusetts, 197 U.S. 11 (1905), does not support the defendants' position. The 25-page filing closes by asking the court to grant injunctive and declaratory relief.
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Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 1 of 25
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA, MACON DIVISION
AIR FORCE OFFICER, )
)
Plaintiff, ) Case No.:
) 5-22-cv-0009-TES
v. )
)
LLOYD J. AUSTIN, III, individually )
and in his official capacity, as Secretary )
of Defense; FRANK KENDALL, III, )
individually and in his official capacity )
as Secretary of the Air Force; and )
ROBERT I. MILLER, individually )
and in his official capacity as Surgeon )
General of the Air Force, )
)
Defendants. )
MOTION FOR LEAVE TO FILE BRIEF AND
BRIEF AMICUS CURIAE OF THE FOUNDATION
FOR MORAL LAW, IN SUPPORT OF PLAINTIFFS
___________________________________________________
JOHN EIDSMOE JORDAN ALEX JOHNSON
TALMADGE BUTTS Jessica Swords Burton
FOUNDATION FOR MORAL LAW COUNSEL OF RECORD
One Dexter Avenue
Montgomery AL 36104
(334) 262-245
eidsmoeja@juno.com
Counsel for Amicus Curiae
1
Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 2 of 25
MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE FOUNDATION
FOR MORAL LAW IN SUPPORT OF PLAINTIFFS
COMES NOW Amicus Foundation for Moral Law, a 501(c)(3) nonprofit corporation
located in Montgomery, Alabama, dedicated to religious liberty and to the strict
construction of the Constitution as intended by its Framers, and hereby respectfully
moves that this Court grant Amicus permission to file an amicus brief in support of
Plaintiff Air Force Officer.
Amicus believes this brief will be helpful to the Court in deciding this case
because of the Foundation's dedication to religious liberty and because the brief's primary
author, Foundation Senior Counsel John Eidsmoe, is a retired U.S. Air Force Judge
Advocate and Professor of Constitutional Law at the Oak Brook College of Law and
Government Policy.
The brief explores Air Force directives pertaining to religious liberty, Air Force
and Navy policies concerning vaccination, religious vs. secular medical and
administrative exemption practices, the Religious Freedom Restoration Act, case law
concerning religious liberty, the constitutional rights of military personnel in light of the
need for military discipline, the applicability of the Jacobson v. Massachusetts precedent,
and the January 3 decision of the U.S. District Court for the Northern District of Texas in
the Navy SEALs v. Biden.
WHEREFORE Amicus respectfully moves and requests this Court's permission
to file this brief.
Respectfully submitted,
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Jordan Alex Johnson
Jessica Swords Burton
3
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TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
TABLE OF AUTHORITIES .............................................................................................. ii
INTEREST OF THE AMICUS ...........................................................................................1
ARGUMENT .......................................................................................................................1
I. The Constitution, including the First Amendment, clearly applies to
military personnel ....................................................................................................1
II. Religious exemption requests should be liberally construed in favor
of the persons making the requests ..........................................................................5
III. Offering exemptions but categorically denying them is bad faith ...........................8
IV. The Air Force has no compelling interest in requiring Plaintiffs to
submit to the COVID-19 vaccinations ...................................................................10
V. Jacobson v. Massachusetts, 197 U.S. 11 (1905), does not support
Defendants' position ...............................................................................................13
VI. U.S. Navy SEALs v. Biden deserves this Court's consideration ..............................14
VII. The Sambrano v. United Airlines ruling is easily distinguished
from the present case .............................................................................................16
CONCLUSION ..................................................................................................................17
i
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TABLE OF AUTHORITIES
Cases
Adkins v. Rumsfeld,
389 F.Supp.2d 579 (2005) .............................................................................................3
BST Holdings, LLC v. Occupational Safety & Health Admin,
17 F.4th 604 (5th Cir. 2021) ........................................................................................16
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) .......................................................................................................6
Carlson v. Schlesinger,
511F. 2d 1327 (D.C. Cir. 1975) .....................................................................................3
Chappell v. Wallace,
462 U.S. 296 (1983) .......................................................................................................3
Gateway City Church v. Newsom,
141 S.Ct. 1460 (2021) ..................................................................................................14
Greer v. Spock,
424 U.S. 828 (1976) .......................................................................................................3
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ............................................................................................... passim
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,
140 S.Ct. 2367, (2020) ..................................................................................................6
United States v. Macintosh,
283 U.S. 605 (1931) .......................................................................................................8
Prince v. Massachusetts,
321 U.S. 158 (1944) .....................................................................................................13
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S.Ct. 63 (2020) ......................................................................................................14
Sambrano v. United Airlines,
No. 4:21-cv-1074-P (November 8, 2021) .............................................................. 16-17
South Bay United Pentecostal Church v. Newsom,
141 S.Ct. 716 (2021) ....................................................................................................14
ii
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Stanley v. Illinois,
405 U.S. 645 (1972) .....................................................................................................12
Tandon v. Newsom,
141 S. Sct. 1294 (2021) (per curiam) ...........................................................................15
Thomas v. Review Board,
450 U.S. 707 (1980) ................................................................................................... 5-6
United States v. Ballard,
322 U.S. 78 (1944) .........................................................................................................5
U.S. Navy SEALs v. Biden,
Civil Action No. 4:21-cv-01236-O,
Order on Preliminary Injunction, January 3, 2022 ................................................ 14-15
Whole Woman’s Health v. Paxton,
10 F.4th 430 (5th Cir. 2021) ..........................................................................................7
Statutes
Religious Freedom Restoration Act of 1993, Public Law No. 103-141, 107
Stat. 1488, 42 U.S.C. § 2000bb......................................................................................4, 11
Other Authorities
DAF (Department of the Air Force) COVID-19 Statistics -- Jan. 24, 2022,
published January 25, 2022 by Secretary of the Air Force Public Affairs,
https://www.af.mil/News/Article-Display/Article/2831845/daf-covid-19-statistics-
jan-25-2022/ .....................................................................................................................4, 9
Department of the Air Force Instruction 52-201 .................................................................4
DODI 1300.17......................................................................................................................4
Executive Order 13798, May 4, 2017 ..................................................................................3
Frontline Doctors Amicus Brief filed December 30, 2021, in In Re: MCP No. 165,
Occupational Safety and Health Administration, U.S. Supreme Court Case No.
21A243...............................................................................................................................10
Holy Bible, Genesis 2:7, 9:1-7; Exodus 20:13; Exodus 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; I Corinthians 6:19-20; Revelation 13 .............................................7
iii
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https://academic.oup.com/jlb/article/7/1/lsaa058/5878809 .................................................7
https://catholic-factchecking.com/2021/07/vaccine-exemption-resource-for-
individuals/...........................................................................................................................7
https://federalnewsnetwork.com/defense-main/2021/...("The Marine Corps has
not granted any religious exemptions", November 30,2021) ..............................................9
https://news.usni.org/2021/11/01/navy-approves...("Navy Approves Five
Permanent Medical, No Religious...") .................................................................................9
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) ...............................9
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) ...............................................................9
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) ............................................................................................9
https://www.navytimes.com › your-navy › 2021/12/02 ("The Navy hasn't
approved any religious exemptions for sailors" December 2, 2021) ...................................9
SECNAVINST 1730.8B ......................................................................................................4
Study: COVID recovery gave Israelis longer-lasting Delta defense than vaccines;
Nathan Jeffay, The Times of Israel, September 2, 2021,
https://www.timesofisrael.com/study-covid-recovery-gave-israelis-longer-lasting-
delta-defense-than-vaccines/ ..............................................................................................11
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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
uncertain whether they will be allowed to graduate, 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,
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.
1
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Navy, Marines, Coast Guard, and 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 the United
States military and the people of the United States should not lose the services of such
outstanding military personnel.
ARGUMENT
The Foundation fully supports the arguments of the Plaintiff in her Complaint 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
recognized that military personnel who swear and oath to support and defend the
Constitution of the United States are entitled to the protection 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
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the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances.
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.
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
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
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freedom of persons and organizations to engage in religious and political
speech.
"All executive departments and agencies" clearly includes the Department of Defense.
In keeping with the President's Executive Order, on 23 June 2021 the Secretary of
the Air Force issued Department of the Air Force Instruction 52-201, "Religious Freedom
in the Department of the Air Force," with the boldface statement at the top of the
Instruction, "COMPLIANCE WITH THIS PUBLICATION IS MANDATORY."
The Instruction states, "It is Department of the Air Force (DAF) policy to place a high
value on the rights of Airmen and Guardians to observe the tenets of their religions. ..."
(1,1). The Instruction continues,
2.3. The Department of the Air Force will approve a member's request for
religious accommodation unless the request would have a real (not
theoretical) adverse impact on military readiness, unit cohesion, good
order, discipline, health or safety.
2.4. Commanders will approve the religious accommodation request
unless a compelling governmental interest exists for the policy, practice,
or duty from which the member is seeking religious accommodation. (T-
0). Any restriction on the expression of sincerely held religious beliefs
must use the least restrictive means with respect to the applicant to achieve
the compelling governmental interest. (T-0). Using the least restrictive
means necessary may include partial approval, approval with specified
conditions, or other means that are less burdensome on the member's
religious beliefs. With the advice of a chaplain, alternative ways (i.e.,
partial approval) to satisfy the requested accommodation can also be
considered.
Also, the Religious Freedom Restoration Act of 1993, Public Law No. 103-141,
107 Stat. 1488, 42 U.S.C. § 2000bb, applies to the Department of Defense (see DODI
1300.17 and SECNAVINST 1730.8B) and provides that government may not
substantially burden one's free exercise of religion without a compelling interest that
cannot be achieved by less restrictive means.
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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,
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
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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 worker more correctly perceived the commands of
their common faith. Courts are not arbiters of scriptural interpretation.
The Thomas Court further stated, citing Sherbert v. Verner, 374 U.S. 398 (1963), that
forcing a person into a "Hobson's choice" dilemma of having to either (1) compromise a
sincerely-held religious belief or (2) give up a substantial government benefit, is a Free
Exercise violation. See also Burwell v. Hobby Lobby Stores, Inc., 573 U.A. 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.
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
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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
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 taking the vaccine 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 what some believe is
the “mark of the beast” of Revelation 13 (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-
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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.
Plaintiffs' religious exemption requests should be construed liberally in their
favor; the First Amendment protects not just belief, but “free exercise” of religion.
Whether one agrees with them or not, Plaintiff's beliefs are religious and she sincerely
holds them. Res ipsa loquitur; the thing speaks for itself. The very fact that Plaintiff is
willing to jeopardize her livelihood, her reputation, and a career that she loves because of
their beliefs, is of itself proof of her 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
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situated Service Member who has." Likewise, the Foundation for Moral Law is unaware
of any service member who has been granted a religious exemption.2
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 take the position that they cannot grant any exemptions because
of military necessity. However, as Plaintiff has observed in Paragraph 198 (page 25) of
her Complaint, and as Amicus has demonstrated above, Defendants have granted medical
exemptions from the vaccination. In fact, as of January 24, 2022, the Air Force has
granted a total of 1,570 medical exemptions, 2,211 administrative exemptions, and zero
(0) religious exemptions (2,683 religious accommodation requests have been disapproved
and 2,119 are pending; 282 appeals have been disapproved, and 222 are pending; none
have been granted),3 There appears to be no reason the military must deny religious
exemptions but may grant medical exemptions. There appears to be no reason why
2
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," November 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", December
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).
3
DAF (Department of the Air Force) COVID-19 Statistics -- Jan. 24, 2022, published January 25, 2022 by
Secretary of the Air Force Public Affairs, https://www.af.mil/News/Article-Display/Article/2831845/daf-
covid-19-statistics-jan-25-2022/
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granting religious exemptions would pose a danger to the overall health and fitness of
military personnel, but granting medical and administrative exemptions would pose no
such danger.
By granting medical exemptions, Defendants have in effect forfeited any
argument that they must deny all exemptions for the health and safety of military
personnel.
IV. The Air Force has no compelling interest in requiring Plaintiff to submit to
the COVID-19 vaccinations.
Amicus defers to the arguments presented and evidence cited by Plaintiff in
Paragraph 34 (p. 5) and other portions of her Complaint. Amicus also invites the Court's
attention to the amicus brief filed by Frontline Doctors in In Re: MCP No. 165,
Occupational Safety and Health Administration, U.S. Supreme Court Case No. 21A243,
filed December 30, 2021, in which Frontline Doctors provide voluminous evidence that
the vaccines at most reduce the symptoms of COVID.
The evidence presented by Frontline Doctors cited above demonstrates that those
who have not been vaccinated are, at most, a threat only to themselves and not to anyone
else. For that reason, the interest of the Air Force in forcing all personnel to be
vaccinated is far less than compelling.
The evidence presented by Plaintiff cited above demonstrates that, because she
has tested positive for antibodies, she is not a threat to anyone. An Israeli study of 46,036
persons by the Maccabi Healthcare Service found that those who tested positive for
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antibodies were twenty-seven times less likely to contract COVID than persons who had
received two injections of the Pfizer vaccine.4
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. None has involved such serious and divisive
questions as to the vaccine's origin, its effectiveness, or its likelihood to produce adverse
reactions, and none has engendered the serious religious and other objections that have
arisen from the COVID vaccines.
Moreover, even if a compelling interest was shown, under the Religious Freedom
Restoration Act the burden is on Defendants to prove that less restrictive means (e.g.,
masking) would not fulfill that compelling interest. Less restrictive means are definitely
available:
(1) The Air Force could exempt those who have tested positive for antibodies.
While this would not solve the problem for everyone, it would solve the problem for
Plaintiff, who has tested positive for antibodies (Complaint paras. 57-61, p. 8).
(2) The Air Force could allow those who are not vaccinated to wear masks and/or
be tested periodically.
(3) The Air Force could limit the vaccine requirement to those whose AFSCs
require them to deploy or who otherwise might have need of the vaccine, and not apply
the requirement to those who are not subject to deployment. This would not help
4
Study: COVID recovery gave Israelis longer-lasting Delta defense than vaccines; Nathan Jeffay, The
Times of Israel, September 2, 2021, https://www.timesofisrael.com/study-covid-recovery-gave-israelis-
longer-lasting-delta-defense-than-vaccines/
11
Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 19 of 25
everyone, but it would help some including Plaintiff and therefore constitutes a less
restrictive means.
(4) A combination of these less restrictive means, or other means, may be
employed, and the burden is on the Air Force to demonstrate that these less restrictive
means would not achieve the compelling interest.
Stanley v. Illinois, 405 U.S. 645 (1972), requires that fundamental rights are at
stake, government must make an individualized determination before infringing a
person's fundamental rights.5 The Air Force has made no individualized determinations
concerning religious exemptions from the vaccination requirement. Had individualized
determinations taken place, out of more than 4,000 exemption requests, at least one
would have been granted. But the Air Force has granted exactly zero (0) religious
exemptions. This leads to the likely conclusion that evaluators simply rubber-stamped
the applications with the word "Denied" (possibly because they were instructed to do so)
rather than giving any of the applications objective individualized consideration.
As noted earlier, the Air Force might respond that military necessity requires
universal vaccination and can allow for no exceptions. But the Air Force has forfeited
that argument by granting 1,570 medical exemptions and 2,211 administrative
exemptions. The Air Force has utterly failed to demonstrate any reason, let alone a
compelling reason, to suggest that military necessity allows medical and administrative
5
Stanley involved the father of an illegitimate child whose parental rights had been terminated without
notice because Illinois law conclusively presumed that the father of an illegitimate child was unfit. The
Supreme Court held that, although some such fathers are unfit, not all are unfit, and Stanley was therefore
entitled to an individualized determination as to whether he was unfit.
12
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exemptions but not religious exemptions. Absent any such demonstration, the Air Force
policy must give way to an Air Force officer's constitutional rights.
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.6 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.
6
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.”
13
Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 21 of 25
(4) Jacobson was a 1905 case, decided before the courts developed the “strict
scrutiny” doctrine that government can infringe fundamental rights only by
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. U.S. NAVY SEALs v. Biden deserves this Court’s consideration.
On January 3, 2022, the United States District Court for the Northern District of
Texas issued a preliminary injunction enjoining the Navy from forcing a group of Navy
SEALs and other Navy personnel to undergo vaccination and enjoining the Navy from
taking any adverse actions against them.7 Like the present case, the Navy case also
involved the denial of religious exemptions, and the District Court’s citation of Elrod v.
Burns, 427 U.S. 347, 373 (1976), “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury” equally applies to
other constitutional rights.
7
U.S. Navy SEALs v. Biden, Civil Action No. 4:21-cv-01236-O, Order on Preliminary Injunction,
January 3, 2022
14
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The District Court observed: "The Navy provides a religious accommodation
process, but by all accounts, it is theater. The Navy has not granted a religious exemption
to any vaccine in recent memory. It merely rubber stamps each denial." (Order, p. 1).8
The Court further stated, "There is no COVID-19 exception to the First Amendment.
There is no military exclusion from our Constitution," citing George Washington's words
carved into the marble of the memorial Amphitheater of Arlington National Cemetery,
"When we assumed the Soldier, we did not lay aside the Citizen." (Order, p. 1).
The Court also observed that the Navy had refused to grant religious exemptions
from the vaccination requirement but had rather freely granted medical exemptions from
the requirement. By granting medical exemptions, the Court said, the Navy had
effectively forfeited the argument that military necessity prohibited the granting of
religious exemptions.
The mandate treats comparable secular activity (e.g., medical exemptions)
more favorably than religious activity. First, the Navy has granted only
secular exemptions -- it has never granted a religious exemption from the
vaccine. Second, even if the Navy were to grant a religious exemption,
that exemption would still receive less favorable treatment than its secular
counterparts. those who receive religious exemptions are medically
disqualified. Those who receive medical exemptions are not. But the
activity itself -- foregoing the vaccine -- is identical. Given the
irrationality of the mandate, "[i]t is unsurprising that such litigants are
entitled to relief." Tandon v. Newsom, 141 S. Sct. 1294, 1298 (2021) (per
curiam).
Order, p. 14 (emphasis original).
The Court also noted that the Navy had achieved its goal of herd immunity, and
the few with religious objections were "unlikely to undermine the Navy's efforts." (Order,
8
The Court added on p. 7, "...the record indicates the denial of each request is predetermined. As a result,
Plaintiffs need not wait for the Navy to engage in an empty formality," meaning Plaintiffs need not exhaust
administrative remedies.
15
Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 23 of 25
p. 20). "Moreover, the Navy is willing to grant exemptions for non-religious reasons. ,,,
As a result, the mandate is underinclusive. 'Indeed, underinclusiveness ... is often
regarded as a telltale sign that the government's interest in enacting a liberty-restraining
pronouncement is not in fact "compelling."' BST Holdings, LLC v. Occupational Safety
& Health Admin, 17 F.4th 604, 616 (5th Cir. 2021),'"
The Foundation had filed an amicus brief in support of the Navy SEALs in this
case, and the Foundation respectfully invites this Court’s attention to the January 3 ruling
in the SEALs case, which on all relevant points is very similar to this case.
VII. The Sambrano v. United Airlines ruling is easily distinguished from the
present case.
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 Plaintiff's case herein, for at
least the following reasons:
1. This case involves a federal agency, the Department of Defense; Sambano
involved a nonpublic entity, United Airlines.
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.
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.
16
Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 24 of 25
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 Plaintiff is faced with permanent discharge that could injure
her reputation. There is, therefore, in the instant case a much greater need to preserve the
status quo by a preliminary injunction that will preserve Plaintiff's status until this matter
has been fully adjudicated.
CONCLUSION
With great discipline and at great sacrifice, Plaintiff Air Force Officer has pledged
her life to the service of her country. And now the leadership of her country appears to be
making war upon her, threatening her livelihood, her career, and her reputation, simply
for obeying God in a land dedicated to religious liberty. And the Air Force appears to be
making war upon its own regulation, "Religious Freedom in the Department of the Air
Force."
In her defense, she places her trust the Constitution she has 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 her in her hour of need.
This Court should grant Plaintiff prompt and comprehensive relief, including
injunctive and declaratory relief.
February 2, A.D.2022.
Respectfully submitted,
John A. Eidsmoe
/s/ John A. Eidsmoe
Iowa Bar # 1002456
Senior Counsel, Foundation for Moral Law
One Dexter Avenue
17
Case 5:22-cv-00009-TES Document 39 Filed 02/02/22 Page 25 of 25
Montgomery, AL 36104
334-262-1245 telephone
eidsmoeja@juno.com
CERTIFICATE REGARDING SERVICE
I certify that on February 2, A.D. 2022, a true copy of this document is being filed
electronically (via CM/ECF) and will thereby be served on all counsel of record.
/s/ Jordan Alex Johnson
Local Counsel, Foundation for Moral Law
Georgia Bar Number 673643
5 Dunwoody Park, Suite 100
Atlanta, GA 30338
alex@justice.law
/s/ Jessica Swords Burton
Local Counsel, Foundation for Moral Law
Georgia Bar Number 196253
5 Dunwoody Park, Suite 100
Atlanta, GA 30338
Jessica@justicice.law
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