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'Clear Policy of Discrimination' Against Religious Objectors: 6th Circuit Protects Air Force Personnel in Vaccine Fight

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The U.S. Court of Appeals for the Sixth Circuit has denied the U.S. Air Force's attempt to block a class-wide preliminary injunction that protects all Air Force personnel who filed for religious exemption against the Pentagon's COVID shot mandate. 

The court denied the Air Force's emergency motion against the class certification and injunction granted by District Judge Matthew W. McFarland, of the Southern District of Ohio, in July. 

In that case, Hunter Doster, et al. v. Hon Frank Kendall, et al., Judge McFarland had ordered the Air Force to not take any disciplinary or separation measures against a class of some 10,000 unvaccinated service members. 

McFarland's ruling prevents anyone from taking any adverse action against any Air Force service members regarding their request for religious accommodation from the COVID-19 shot.

The service members had alleged that the Department applied a general, discriminatory policy of denying their requests for religious exemptions from the Secretary of Defense's vaccine mandate. 

The plaintiffs argued that the Department's policy violated their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause. 

Last week, the Sixth Circuit rejected the Air Force's argument that the plaintiffs were unable to satisfy the requirements for class certification. 

"From the very first paragraph of their Complaint, to their briefing in opposition to the Department's motion now, the plaintiffs have alleged the existence of a 'systematic effort' by the Department to deny service members' requests for religious exemptions categorically, while granting thousands of medical and administrative exemptions," the court wrote in its ruling. "The district court recognized as much when it thrice referenced what it called 'Defendants' clear policy of discrimination against religious accommodation requests' in finding the commonality requirement met. And we think the district court was likely correct when it held that, on this record, that contention supports litigation of both a RFRA claim and a First Amendment free-exercise claim class-wide." 

The Sixth Circuit further wrote, "We differ with the district court, however, as to what that relief might look like. The court appeared to assume that such relief would broadly enjoin the Department to provide a class-wide 'religious accommodation relating to the COVID-19 vaccine mandate.' But an appropriate remedy might more narrowly enjoin the Department to abolish the discriminatory policy, root and branch, and to enjoin any adverse action against the class members on the basis of denials of religious exemptions pursuant to that policy." 

Liberty Counsel Founder and Chairman Mat Staver said, "This order by the Court of Appeals affirms that the Department of Defense and the Air Force violated religious free exercise rights of service members which are protected under the Religious Freedom Restoration Act and the First Amendment. This is a great victory for religious freedom, especially for these Air Force service members who love God and love America." 

"These mandates will continue to crumble one by one in the courts," Staver added. 

Air Force No Longer Publicly Posts Stats About Religious Accommodation Requests

When CBN News accessed the Air Force's latest COVID-19 statistics webpage published on Sept. 7, we found the department no longer posts religious accommodation requests – including cases pending, approved, and disapproved – to its website as the department has done previously. 

Instead, there's a statement about the department complying with the court order. 

"The Department of the Air Force is complying with the court order to pause all disciplinary and adverse actions for those refusing the COVID-19 vaccine who submitted a timely religious accommodation request," the statement said. "This includes the Air Force Reserve Command processing Airmen to the Individual Ready Reserve (IRR)."

The last update of these statistics was posted by the Air Force on July 11 when there were 2,847 cases pending. Only 104 cases had been approved for religious accommodation, while 6,803 applications had been disapproved with 3,685 of those cases being appealed. 

The news of the Sixth Circuit Court's decision is the latest in a series of lawsuits against branches of the U.S. military challenging the Biden administration's COVID vaccine mandate. As CBN News reported in August of 2021, Secretary Austin announced all U.S. troops would be required to get a COVID vaccine or be forced out of their careers in the military – a move supported by President Joe Biden.

As CBN News reported last month, a federal judge in Tampa, Florida ordered class action relief and granted a classwide preliminary injunction against the federal government's COVID shot mandate for all U.S. Marines whether they are active or in reserve service.

Liberty Counsel, a Christian religious rights law firm, sued Secretary of Defense Lloyd Austin and pursued this class action relief on behalf of all U.S. Marines who were denied religious accommodations from the COVID shots. Some religious objectors refuse the vaccines citing research and development that may have involved aborted fetal cells. 

As CBN News reported in July, the U.S. Army announced unvaccinated soldiers in the U.S. Army National Guard and Reserve who have not received an exemption may no longer participate in federally funded drills and training and will not receive pay or retirement credit. 

The Army's order dated July 1 ended pay and benefits for 62,000 of those guardsmen and reservists. 

To date, more than 8,300 soldiers (active, guard, and reserve) have reportedly sought religious exemptions. According to the Army's latest statistics released on Sept. 8, only 32 of these religious accommodations have been approved and only for active-duty personnel.  So far, no exemptions have been approved for Guardsmen or Reservists. 

Religious Objectors Punished with Deplorable Living Conditions

Meanwhile, Sen. James Lankford (R-OK) asked U.S. Defense Secretary Lloyd Austin late last month to take action after reports surfaced revealing deplorable living conditions for service members who have made religious objections to the COVID vaccine. 

Lankford, a member of the Senate Homeland Security and Governmental Affairs Committee, has written to Austin several times before to raise concerns about how the Department of Defense has handled requests for religious accommodations to the COVID vaccine. According to the senator's office, his letters to the Defense secretary have mostly gone unanswered. 

"The news reports that surfaced on August 24 detailing the horrific living conditions of sailors with religious objections to the vaccine warrant immediate attention," the Oklahoma senator wrote. "At best, these reports demonstrate your lack of care for the service members you lead. At worst, it demonstrates an active disdain for and hostility toward them."

"I urge you in the strongest possible terms to immediately take action to ensure that no service member is subjected to deplorable, illegal retribution for exercising their sincerely held religious beliefs," the senator wrote. "I demand your swift action in auditing and remedying the working and living conditions of these sailors."

Lankford scolded the secretary saying "the Navy's treatment of religious service members is unconscionable."

CBN News reached out to the Department of Defense for comment about Lankford's letter to Secretary Austin. In an emailed response, DOD spokesperson Major Charlie Dietz said even though the department doesn't comment on direct correspondence to the secretary, they will respond once Sen. Lankford's letter has been reviewed.

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