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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER, AIR FORCE NCO,
)
AIR FORCE SPECIAL AGENT, and
)
AIR FORCE ENGINEER, on behalf of
)
themselves and all others similarly situated,
)
)
Case No. 5:22-cv-00009-TES
Plaintiffs,
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v.
)
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LLOYD J. AUSTIN, III, in his
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official capacity as Secretary of Defense;
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FRANK KENDALL, III, in his
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official capacity as Secretary of the Air Force; and
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ROBERT I. MILLER, in his
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official capacity as Surgeon General of the
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Air Force,
)
)
Defendants.
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PLAINTIFFS’ NOTICE OF ADDITIONAL AUTHORITY
Plaintiffs hereby give notice of two recent United States Supreme Court opinions relevant to
their religious liberty claims and a recent Fifth Circuit Court of Appeals order relevant to Plaintiff
Air Force Officer’s federal civilian employee mandate claims:
1. Carson v. Makin, No. 20-1088, — S.Ct. —, 2022 WL 2203333 (U.S. June 21, 2022).
2. Kennedy v. Bremerton Sch. Dist., No. 21-418, — S.Ct. —, 2022 WL 2295034 (U.S. June 27, 2022).
3. Feds for Med. Freedom v. Biden, No. 22-40043, 2022 WL 2301458 (5th Cir. June 27, 2022).
In Carson, the Supreme Court stated:
“The Free Exercise Clause of the First Amendment protects against indirect coercion or
penalties on the free exercise of religion, not just outright prohibitions…. In particular, we
have repeatedly held that a State violates the Free Exercise Clause when it excludes religious
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observers from otherwise available public benefits.” Carson, 2022 WL 2203333, at *5 (internal
quotation marks and citations omitted).
“To satisfy strict scrutiny, government action must advance interests of the highest order and
must be narrowly tailored in pursuit of those interests…. A law that targets religious conduct
for distinctive treatment ... will survive strict scrutiny only in rare cases.” Id. at *7 (internal
quotation marks and citations omitted).
In Kennedy, the Supreme Court stated:
“The Free Exercise Clause provides that ‘Congress shall make no law . . . prohibiting the free
exercise’ of religion. Amdt. 1. … The Clause protects not only the right to harbor religious
beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability
of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the
performance of (or abstention from) physical acts.’ Employment Div., Dept. of Human Resources of
Ore. v. Smith, 494 U. S. 872, 877 (1990).” Kennedy, 2022 WL 2295034, at *9.
“A government policy will fail the general applicability requirement if it ‘prohibits religious
conduct while permitting secular conduct that undermines the government’s asserted interests
in a similar way,’ or if it provides ‘a mechanism for individualized exemptions.’ Fulton [v.
Philadelphia], 593 U. S. [2021], at ___ (slip op., at 6).” Id.
“Respect for religious expressions is indispensable to life in a free and diverse Republic….”
Id. at *17.
“Government ‘justification[s]’ for interfering with First Amendment rights ‘must be genuine,
not hypothesized or invented post hoc in response to litigation.’ United States v. Virginia, 518 U.
S. 515, 533 (1996).” Id. at *17 n.8.
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In Feds for Med. Freedom, the Fifth Circuit stated:
“IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument
on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of
supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion dated April 7, 2022,
is VACATED.” Feds for Med. Freedom, 2022 WL 2301458, at *1.
Therefore, pursuant to this Fifth Circuit order, the nationwide injunction against enforcement of the
federal civilian employee mandate (Feds for Med. Freedom v. Biden, No. 3:21-CV-356, 2022 WL 188329
(S.D. Tex. Jan. 21, 2022)) remains in effect.
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Dated: June 29, 2022
Respectfully submitted,
/s/ Adam S. Hochschild
Stephen Crampton, pro hac vice
Michael R. Hirsh, GA #357220
THOMAS MORE SOCIETY – Senior Counsel
Hirsh Law Office, LLC
PO Box 4506
2295 Towne Lake Parkway
Tupelo, MS 38803
Suite 116-181
(662)255-9439
Woodstock, GA 30189
scrampton@thomasmoresociety.org
(678)653-9907
michael@hirsh.law
Adam S. Hochschild, pro hac vice
Hochschild Law Firm
THOMAS MORE SOCIETY – Special Counsel
PO Box 401
Plainfield, VT 05667
(314)503-0326
adam@hochschildlaw.com
Mary Catherine Hodes, pro hac vice
THOMAS MORE SOCIETY – Special Counsel
112 S. Hanley Rd., Second Floor
Clayton, MO 63105
(314)825-5725
mchodes@thomasmoresociety.org
Michael McHale, pro hac vice
THOMAS MORE SOCIETY – Counsel
10506 Burt Circle, Ste. 110
Omaha, NE 63114
(402)501-8586
mmchale@thomasmoresociety.org
Paul M. Jonna, pro hac vice
LiMandri & Jonna LLP
THOMAS MORE SOCIETY – Special Counsel
P.O. Box 9120
Rancho Santa Fe, CA 92067
(858)759-994
pjonna@limandri.com
Counsel for Plaintiffs
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