Amicus Curiae Brief — Lynn Brown, as Appointed Successor and Representative of Now Deceased Howard M. Berry, Petitioner v. Christine E. Wormuth, Secretary of the Army, et al.

No. 22-1

IN THE

LYNN BROWN, as appointed successor and

representative of now-deceased Howard M. Berry,

Petitioner,

v.

CHRISTINE E. WORMUTH, Secretary of the Army and

LLOYD J. AUSTIN, III, Secretary of Defense,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

MOTION FOR LEAVE TO FILE BRIEF OF AMICI

CURIAE AND BRIEF OF AMICI CURIAE AMERICA

FIRST POLICY INSTITUTE, LT. GEN. (RET.) KEITH

KELLOGG, AND HON. ROBERT WILKIE IN

SUPPORT OF PETITIONER

Pam Bondi

Jessica Hart Steinmann

Craig Trainor

Rachel Jag

AMERICA FIRST POLICY INSTITUTE

1001 Pennsylvania Ave. NW

Suite 530

Washington, D.C. 20004

(571) 348-1802

Kassandra L. Dulin

Kayla A. Toney

FIRST LIBERTY INSTITUTE

227 Pennsylvania Ave SE

Washington, D.C. 20003

(202) 921-4105

Kelly J. Shackleford

Counsel of Record

Jeffrey C. Mateer

Michael D. Berry

David J. Hacker

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway

Suite 1600

Plano, TX 75075

(972) 941-4444

kshackleford@firstliberty.org

Counsel for Amici Curiae

No. 22-1

IN THE

LYNN BROWN, as appointed successor and

representative of now-deceased Howard M. Berry,

Petitioner,

v.

CHRISTINE E. WORMUTH, Secretary of the Army and

LLOYD J. AUSTIN, III, Secretary of Defense,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

MOTION FOR LEAVE TO FILE BRIEF OF AMICI

CURIAE

Pursuant to subparagraph 2(b) of Rule 37, U.S.

Supreme Court Rules, America First Policy Institute,

Lt. Gen. (Ret.) Keith Kellogg, and Hon. Robert Wilkie

hereby move the Court for leave to file an amicus

curiae brief in support of the petition for certiorari.

This brief is being filed timely, “within 30 days

after the case is placed on the docket or a response is

called for by the Court, whichever is later.” Rule 37(2).

The petition was docketed on June 30, 2022. This

amicus brief is being filed on August 1, 2022, which is

within 30 days after docketing. In support of their

motion, these amici state:

2

Identity and Experience of Amici Curiae

The America First Policy Institute (“AFPI”) is a

501(c)(3) non-profit, non-partisan research institute.

AFPI exists to conduct research and develop policies

that put the American people first. AFPI’s “guiding

principles are liberty, free enterprise, national

greatness, American military superiority, foreignpolicy engagement in the American interest, and the

primacy of American workers, families, and

communities in all we do.” AFPI, About,

https://americafirstpolicy.com/about/ (last visited July

13, 2022). AFPI consists of many former senior leaders

of the United States government.

Lieutenant General Keith Kellogg, United States

Army (Retired), serves as AFPI’s Co-Chairman of the

Center for American Security and previously served as

National Security Advisor to former Vice President

Mike Pence and Chief of Staff and Executive Secretary

of the National Security Council.

The Honorable Robert Wilkie, Colonel in the

United States Air Force Reserve, serves as AFPI’s

Distinguished Fellow for the Center for American

Security and previously served as Secretary of

Veterans Affairs in the Trump Administration.

Relevance of Amicus Brief to Petition for

Certiorari

According to Rule 37, “An amicus curiae brief that

brings to the attention of the Court relevant matter

not already brought to its attention by the parties may

be of considerable help to the Court.” Amici believe

that this brief will assist the Court in resolving

whether the military should receive “unusual

deference” in judicial decisions regarding statutory

3

and constitutional rights. Amici offer their extensive

expertise on national security issues to assist the

Court with these difficult issues.

In this case, the brief submitted by amici provides

authorities and arguments on important issues

presented which are not addressed fully by Petitioner.

These include the negative effects of the “unusual

deference”

standard

on

service

members’

constitutional rights.

The Positions of the Parties

These amici obtained the consent of counsel for

Petitioner. Counsel for Respondents did not respond to

multiple requests for consent by amici.

Conclusion

For the foregoing reasons, these amici respectfully

request the Court to grant them leave to file their brief

amicus curiae, which is appended hereto.

Respectfully submitted,

Pam Bondi

Jessica Hart Steinmann

Craig Trainor

Rachel Jag

AMERICA FIRST POLICY INSTITUTE

1001 Pennsylvania Ave. NW

Suite 530

Washington, D.C. 20004

(571) 348-1802

Kassandra L. Dulin

Kayla A. Toney

FIRST LIBERTY INSTITUTE

227 Pennsylvania Ave SE

Washington, D.C. 20003

(202) 921-4105

Kelly J. Shackleford

Counsel of Record

Jeffrey C. Mateer

Michael D. Berry

David J. Hacker

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway

Suite 1600

Plano, TX 75075

(972) 941-4444

kshackleford@firstliberty.org

Counsel for Amici Curiae

August 1, 2022

QUESTION PRESENTED

Whether the Administrative Procedure Act (“APA”)

incorporates a presumption of “unusual deference” in

all cases involving the military.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................2

ARGUMENT ................................................................4

I.

The D.C. Circuit’s “unusual deference”

standard

invades

service

members’

constitutional rights..............................................4

A.

Courts should not apply “unusual

deference” when the agency is violating a

clear statutory or constitutional provision ....5

B. Some deference is due given the military’s

unique responsibilities, but this deference

must not be unfettered ...................................7

C. RFRA and the First Amendment provide

robust protection for the religious freedom

of service members .......................................10

II.

National security suffers when service

members’ constitutional rights are violated ......17

III. This Court has recently cautioned against

undue deference and should apply that

analysis here to protect the rights of service

members ..............................................................22

CONCLUSION ..........................................................24

iii

TABLE OF AUTHORITIES

Cases

Austin v. U.S. Navy Seals 1-26,

146 S. Ct. 1301 (2022) ........................................ 4, 24

Bostock v. Clayton Cty., Ga.,

140 S. Ct. 1731 (2020) ............................................ 17

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ................................................ 16

Chappell v. Wallace,

462 U.S. 296 (1983) ................................................ 13

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) .................................................. 5

Coburn v. Murphy,

827 F.3d 1122 (D.C. Cir. 2016) ................................ 8

Coe v. McHugh,

968 F. Supp. 2d 237 (D.D.C. 2013) .......................... 5

Creaghan v. Austin,

No. 22-0981, 2022 WL 1500544 (D.D.C. May 12,

2022) ................................................................. 13, 14

Di Liscia v. Austin, No. 1:21-cv-01047 (D.D.C.

Apr. 15, 2021) ......................................................... 19

Dickson v. Secretary of Defense,

68 F.3d 1396 (D.C. Cir. 1995) .................................. 8

Downen v. Warner,

481 F.2d 642 (9th Cir. 1973) .............................. 6, 10

Employment Div., Dep't of Hum. Res. v. Smith,

484 U.S. 782 (1990) ................................................ 11

Frizelle v. Slater,

111 F.3d 172 (D.C. Cir. 1997) .................................. 5

iv

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal, 546 U.S. 418 (2006) ....................... 16, 17

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995) .......................... 9, 10, 13

Holt v. Hobbs,

574 U.S. 352 (2015) ........................................ passim

Katcoff v. Marsh,

755 F.2d 223 (2d Cir. 1985) ............................. 10, 20

Korematsu v. United States,

323 U.S. 214 (1944) .............................................. 2, 7

Kreis v. Sec'y of Air Force,

406 F.3d 684 (D.C. Cir. 2005) .......................... 2, 3, 7

Maneely v. Donley,

967 F. Supp. 2d 393 (D.C. Cir. 2013) ...................... 9

NeSmith v. Fulton,

615 F.2d 196 (5th Cir. 1980) .................................... 6

Nieto v. Flatau,

715 F. Supp. 2d 650 (E.D.N.C. 2010) ................ 6, 13

Parker v. Levy,

417 U.S. 733 (1974) ................................................ 14

Ramirez v. Collier,

142 S. Ct. 1264 (2022) ...................................... 23, 24

Rigdon v. Perry,

962 F. Supp. 150 (D.D.C. 1997) ............................. 11

Roberts v. United States,

883 F. Supp. 2d 56 (D.C. Cir. 2012) ........................ 9

Roth v. Austin,

No. 8:22-CV-03038, 2022 WL 1568830

(D. Neb. May 18, 2022) ...................................... 6, 14

v

Singh v. Carter,

168 F. Supp. 3d 216 (D.D.C. 2016) .............. 6, 11, 20

Singh v. McHugh,

185 F. Supp. 3d 201 (D.D.C. 2016) .................. 11, 17

Toor v. Berger, No. 1:22-cv-01004-RJL (D.D.C.

Apr. 13, 2022) ......................................................... 19

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .............................................. 2

U.S. Navy Seals 1-26 v. Biden,

No. 4:21-cv-01236-O, 2022 WL 34443 (N.D. Tex.

Jan. 3, 2022) ....................................................... 3, 21

U.S. Navy Seals 1-26 v. Biden,

No. 4:21-cv-01236-O, 2022 WL 1025144

(N.D. Tex. Mar. 28, 2022) ...................................... 18

U.S. Navy Seals 1-26 v. Biden,

27 F.4th 336 (5th Cir. 2022)............................. passim

United States v. Sterling,

75 M.J. 407 (C.A.A.F. 2016)............................. 10, 14

United States v. Webster,

65 M.J. 936 (A. Ct. Crim. App. 2008) .................... 14

Webster v. Doe,

486 U.S. 592 (1988) .................................................. 9

Wilhelmus v. Geren,

796 F. Supp. 2d 157 (D.D.C. 2011) .......................... 8

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................................ 12

Constitution and Statutes

U.S. Const. art. I, § 8, cl. 14 ...................................... 15

5 U.S.C. § 706(2)(B)-(C) ............................................... 6

vi

42 U.S.C. § 2000bb-1(b) ............................................... 8

National Defense Authorization Act for Fiscal Year

2013, Pub. L. No. 112-239...................................... 12

National Defense Authorization Act for Fiscal Year

2014, Pub. L. No. 113-66........................................ 12

Other Authorities

Army Directive 2017-03 (Jan. 3, 2017) ..................... 15

Philip Athey, Here’s Where Ponytails Stand for

Women in the Marine Corps, MARINE CORPS

TIMES (Nov. 4, 2021) .............................................. 19

Lolita C. Baldor, Army Guard Troops Risk

Dismissal as Vaccine Deadline Looms,

DEFENSENEWS (June 26, 2022) ............................. 18

Michael Berry & Antony Barone Kolenc, BornAgain RFRA: Will the Military Backslide on its

Religious Conversion? 87 MO. L. REV. 463

(2022) ................................................................ 10, 13

Carlos Del Toro, One Navy-Marine Corps Team:

Strategic Guidance From The Secretary of the

Navy (Oct. 2021)..................................................... 19

Department of Defense, Coronavirus: DOD

Response (July 13, 2022) ........................................ 18

DoD INSTRUCTION 1300.17, Accommodation of

Religious Practices Within the Military Services

(Feb. 10, 2009) ........................................................ 11

DoD INSTRUCTION 1300.17, Religious Liberty in

the Military Services (Sept. 1, 2020) ..................... 13

Department of Veterans Affairs, Address Moral

Injury to Reduce Veteran Suicide Risk (2021) ...... 21

vii

H.R. Rep. No. 103-888 (1993) .................................... 17

Alex Horton, Air Force is First to Face Troops’

Rejection of Vaccine Mandate as Thousands

Avoid Shots, WASHINGTON POST (Oct. 28, 2021) ... 19

Shareda Hosein, Muslims in the U.S. Military:

Moral Injury and Eroding Rights, PASTORAL

PSYCHOLOGY, 68: 77-92 (Nov. 12, 2018) ................ 21

Kathryn E. Kovacs, A History of the Military

Authority Exception in the Administrative

Procedure Act, 62 ADMIN. L. REV. 673 (2010) .......... 6

Courtney Kube & Molly Boigon, Every Branch of

the Military is Struggling to Make its 2022

Recruiting Goals, Officials Say, NBC NEWS

(June 27, 2022) ....................................................... 20

James Madison, The Federalist Papers, No. 48

(Feb. 1, 1788) .......................................................... 12

Dave Philipps, The Marines Reluctantly Let a

Sikh Officer Wear a Turban. He Says It’s Not

Enough, N.Y. TIMES (Sept. 26, 2021) .............. 15, 16

Secretary of the Air Force, Air Force Instruction

36-2903, Dress and Personal Appearance of Air

Force Personnel (Feb. 7, 2020) ............................... 16

Secretary of the Air Force, Department of the Air

Force Instruction 52-201, Religious Freedom in

the Department of the Air Force (June 23, 2021) .. 16

S. Rep. No. 103-111 (1993) ........................................ 17

Wendy S. Whitbeck, Restoring Rites and

Rejecting Wrongs: The Religious Freedom

Restoration Act,

18 SETON HALL LEGIS. J. 821 (1994) ..................... 15

1

INTEREST OF AMICI CURIAE 1

The America First Policy Institute (“AFPI”) is a

501(c)(3) non-profit, non-partisan research institute.

AFPI exists to conduct research and develop policies

that put the American people first. AFPI’s “guiding

principles are liberty, free enterprise, national

greatness, American military superiority, foreignpolicy engagement in the American interest, and the

primacy of American workers, families, and

communities in all we do.” AFPI, About,

https://americafirstpolicy.com/about/ (last visited July

13, 2022). AFPI consists of many former senior leaders

of the United States government.

Lieutenant General Keith Kellogg, United States

Army (Retired), serves as AFPI’s Co-Chairman of the

Center for American Security and previously served as

National Security Advisor to former Vice President

Mike Pence and Chief of Staff and Executive Secretary

of the National Security Council.

The Honorable Robert Wilkie, Colonel in the

United States Air Force Reserve, serves as AFPI’s

Distinguished Fellow for the Center for American

Security and previously served as Secretary of

Veterans Affairs in the Trump Administration.

1 All parties received timely notice of this filing. Counsel for

Petitioners consented, but counsel for Respondents did not

respond. In accordance with Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amici curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

Amici offer their extensive expertise on national

security issues to assist the Court in resolving whether

the military should receive “unusual deference” in

judicial

decisions

regarding

statutory

and

constitutional rights. In particular, amici will

illuminate the negative effects of the “unusual

deference”

standard

on

service

members’

constitutional rights.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In the infamous Korematsu decision, Justice

Robert

Jackson’s

dissent

cautioned

that

unquestioning judicial deference is even worse than

military overreach: “A military commander may

overstep the bounds of constitutionality, and it is an

incident. But if we review and approve, that passing

incident becomes the doctrine of the Constitution.”

Korematsu v. United States, 323 U.S. 214, 246 (1944)

(Jackson, J., dissenting), overruled by Trump v.

Hawaii, 138 S. Ct. 2392, 2423 (2018) (“Korematsu was

gravely wrong the day it was decided, has been

overruled in the court of history, and—to be clear—

'has no place in law under the Constitution.’”) (quoting

Korematsu, 323 U.S. at 248 (Jackson, J., dissenting)).

Justice Jackson’s prophetic observation captures

the legal issue at the heart of this case: whether courts

tasked with judicial review owe “unusual deference” to

military decisionmakers. Amici argue that they do not,

particularly when service members’ constitutional or

statutory rights are at stake. Courts addressing these

challenging issues should engage in a threshold

inquiry that determines whether the issue involves

3

“military judgment requiring military expertise.”

Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir.

2005) (“Kreis III”). If so, then deference may be due.

But if not, where procedural or legal issues are

involved, courts are well-equipped to conduct judicial

review. See Pet. 15.

This Court recently faced another question about

deference regarding the military’s COVID-19 vaccine

mandate. While the Navy sought deference toward its

policy of no religious accommodations, it failed to

provide evidence that unvaccinated SEALs pose an

actual threat to its fighting force. U.S. Navy Seals 126 v. Biden, 27 F.4th 336, 351-52 (5th Cir. 2022). In

fact, the SEAL plaintiffs completed missions

successfully by using mitigation techniques, both

before and after vaccines were available. Id. at 341,

351-52. Both the district court and the Fifth Circuit

rightly refused to defer to the Navy’s “rubber stamp[]”

decisionmaking process which results in automatic

denials. U.S. Navy Seals 1-26 v. Biden, No. 4:21-cv01236-O, 2022 WL 34443, at *1 (N.D. Tex. Jan. 3,

2022). The district court granted a preliminary

injunction protecting the SEALs, finding that judicial

review “would not ‘seriously impede the military in the

performance of vital duties.’” Id. at *8 (citations

omitted). The Fifth Circuit agreed that the Navy failed

to “conscientiously adher[e] to RFRA” because its

medical exemptions undermined its compelling

interest claim, and its policy of denying all religious

accommodations and punishing anyone who requested

them was not the least restrictive means of achieving

its interest. U.S. Navy Seals 1-26, 27 F.4th at 350-52.

Launching an emergency appeal to this Court, the

Navy again grasped for unusual deference to military

4

judgments, this time with partial success. Austin v.

U.S. Navy Seals 1-26, 146 S. Ct. 1301 (2022) (granting

partial stay of district court’s order precluding Navy

from considering plaintiffs’ vaccination status in

making operational decisions). Justice Kavanaugh’s

concurrence found that the district court “inserted

itself into the Navy’s chain of command” and that

“RFRA does not justify judicial intrusion into military

affairs in this case.” Id. at 1302 (Kavanaugh, J.,

concurring). Justices Alito, Gorsuch, and Thomas

would have denied the Navy’s application for a partial

stay, calling the Court’s action “rubberstamping” that

“brushes . . . aside” the Navy’s unlawful treatment of

the SEALs. Id. at 1302 (Alito, J., dissenting).

The Court’s disagreement demonstrates that

judicial deference toward military decisionmakers is

not a zero-sum game. Rather, when constitutional or

statutory rights are at stake, courts must not

automatically defer to military decisions but should

enforce those rights our brave service members

promise to protect.

ARGUMENT

I.

The D.C. Circuit’s “unusual deference”

standard invades service members’

constitutional rights.

Amici support Petitioner in contesting the Army’s

denial of a Purple Heart to SSG Berry. Yet amici are

even more concerned that the district court and D.C.

Circuit rubber-stamped the Army’s decision and

reinforced an “unusual deference” standard which

treats service members as second-class citizens. If

courts continue to give undue deference to military

5

decisions, amici fear negative repercussions for the

constitutional and statutory rights of service

members.

A. Courts should not apply “unusual

deference” when the agency is

violating a clear statutory or

constitutional provision.

SSG Berry’s APA claim alleges that the Army’s

rejection of his Purple Heart recommendation was

“arbitrary, capricious, an abuse of discretion, not in

accordance with law, and unsupported by substantial

evidence.” Pet. 5. Both lower courts relied on “unusual

deference” to reject Berry’s claim. App. to Pet. Cert. 2a,

14a.

Under the “unusual deference standard,” courts

cannot evaluate whether the military’s decision was

“substantively correct,” but only whether the decision

“minimally contains a rational connection between the

facts found and the choice made.” App. to Pet. Cert.

19a (quoting Coe v. McHugh, 968 F. Supp. 2d 237, 240

(D.D.C. 2013), and Frizelle v. Slater, 111 F.3d 172, 176

(D.C. Cir. 1997)). This weakens the arbitrary and

capricious standard and precludes any meaningful

judicial review of military decisions.

Yet when Congress has spoken directly on an issue,

courts must follow its clear intent rather than

judicially created doctrines. Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984) (“If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed

intent of Congress.”). When Congress passed the APA

just after World War II, public demand for a strong

6

military was high. Yet Congress purposefully rejected

requests to exempt the military from APA

accountability. See Kathryn E. Kovacs, A History of the

Military Authority Exception in the Administrative

Procedure Act, 62 ADMIN. L. REV. 673, 697-700 (2010).

When Congress speaks, as in the APA, then judicial

deference must give way to the statute.

Many statutes, including the APA and the

Religious Freedom Restoration Act (“RFRA”),

explicitly create judicial standards to hold government

accountable. The APA requires courts to set aside

agency findings that are “contrary to constitutional

right, power, privilege, or immunity” or “in excess of

statutory jurisdiction, authority, or limitations, or

short of statutory right.” 5 U.S.C. § 706(2)(B)-(C).

When

service

members

request

religious

accommodations, they may invoke both the

Constitution and RFRA. See, e.g., Singh v. Carter, 168

F. Supp. 3d 216, 226-27 (D.D.C. 2016) (Sikh Army

officer brought RFRA and Free Exercise claims

seeking religious beard and turban accommodation);

Roth v. Austin, No. 8:22-CV-03038, 2022 WL 1568830,

*1 (D. Neb. May 18, 2022) (Air Force members brought

RFRA and Free Exercise claims seeking religious

exemptions from COVID-19 vaccine requirement).

Multiple circuits have recognized that “[r]esolving a

claim founded solely upon a constitutional right is

singularly suited to a judicial forum and clearly

inappropriate to an administrative board,” especially

when the claims are “founded on infringement of

specific constitutional rights.” U.S. Navy Seals 1-26,

27 F.4th at 348 (quoting Downen v. Warner, 481 F.2d

642, 643 (9th Cir. 1973) and NeSmith v. Fulton, 615

F.2d 196, 201-02 (5th Cir. 1980)); see also Nieto v.

7

Flatau, 715 F. Supp. 2d 650, 655 (E.D.N.C. 2010)

(upholding

free

speech

claim

because

“[n]otwithstanding the great deference owed to the

military, regulations restricting speech on military

installations may not discriminate against speech

based upon its viewpoint”). Thus, courts should be

especially careful not to apply “unusual deference”

when Congress has clearly spoken or when

constitutional rights are at stake.

B. Some deference is due given the

military’s unique responsibilities,

but this deference must not be

unfettered.

As Justice Jackson’s dissent in Korematsu

acknowledged, “[i]t would be impracticable and

dangerous idealism to expect or insist that each

specific military command in an area of probable

operations will conform to conventional tests of

constitutionality.” 323 U.S. at 244 (Jackson, J.,

dissenting). Some deference is due to the military,

especially because their primary object is to protect

not only the Constitution but society as a whole—a

daunting task that does at times require extreme and

unprecedented measures. Yet the effective way for

courts to address this reality is to engage in a

threshold inquiry that determines whether the issue

involves “military judgment requiring military

expertise.” Kreis III, 406 F.3d at 686. If so, then

deference may be due. But if not, where the issues are

more procedural or legal in nature, courts are wellequipped to engage in judicial review under the APA.

See Pet. 15. For courts to skip this threshold inquiry

and blindly defer to the military goes against the text

of the APA.

8

The D.C. Circuit has shown that this threshold

inquiry is workable in practice. In Dickson v. Secretary

of Defense, the court followed “the strong presumption

that

Congress

intends

judicial

review

of

administrative action” and found that no statute

precludes judicial review of Army Board decisions

under the APA. 68 F.3d 1396, 1401 (D.C. Cir. 1995)

(citation omitted) (finding Army Board’s decisions

arbitrary and capricious because it failed to provide

any reasoned explanation for its decisions). In

Wilhelmus v. Geren, the court applied the arbitrary

and capricious standard instead of “unusual

deference” because the issues involved procedural

fairness rather than “military expertise.” 796 F. Supp.

2d 157, 162 (D.D.C. 2011) (finding for plaintiff who

was disenrolled from U.S. military academy). In

Coburn v. Murphy, 827 F.3d 1122, 1124-25 & n.1 (D.C.

Cir. 2016), the court expressly declined to decide

whether the Army was owed “special deference” and

applied the arbitrary and capricious standard to the

Army’s disability evaluation. Declining to apply

unusual deference does not guarantee victory for

service members; they still face the difficult “arbitrary

and capricious” standard and will often lose in court,

like the plaintiff in Coburn. But at least the court

considered the underlying military decision on the

merits instead of deferring altogether. Id. at 1124-25.

Similar to the APA, RFRA also requires a threshold

inquiry of whether the policy at issue poses a

“substantial burden” on a claimant’s religious

exercise. This triggers strict scrutiny: whether the

government has a compelling interest and has used

the least restrictive means to achieve that interest. 42

U.S.C. § 2000bb-1(b); Holt v. Hobbs, 574 U.S. 352, 357

9

(2015). If courts skip both the threshold inquiry and

the strict scrutiny test, granting the military “unusual

deference” without putting it to its proof, religious

claimants will always lose—even when their requests

could be accommodated without compromising the

military’s interests. This tendency becomes clear when

service members bring other types of constitutional

claims. See, e.g., Roberts v. United States, 883 F. Supp.

2d 56, 69-70 (D.C. Cir. 2012) (applying unusual

deference standard and rejecting Navy officer’s due

process and APA challenges based on lack of

promotion due to gender discrimination); Maneely v.

Donley, 967 F. Supp. 2d 393, 401-02 (D.C. Cir. 2013)

(rejecting Air Force officer’s due process claim as

untimely and applying unusual deference to reject his

APA claim based on faulty disability rating). Yet

constitutional claims merit review even when an

agency decision is not subject to other APA

requirements. Webster v. Doe, 486 U.S. 592, 603 (1988)

(“where Congress intends to preclude judicial review

of constitutional claims its intent to do so must be

clear”).

The D.C. Circuit’s tendency to ignore constitutional

and statutory claims because of the unusual deference

standard creates a circuit split with the Fifth, Sixth,

and Ninth Circuits. When deciding whether military

claims are justiciable, the Fifth Circuit requires courts

to examine first “whether the plaintiff has alleged a

deprivation of constitutional rights.” U.S. Navy Seals

1-26, 27 F.4th at 346 (citation omitted). The Sixth

Circuit has declined to show “traditional deference

granted to the military by the courts” where

constitutional rights were at stake and there was no

direct connection with military discipline. Hartmann

10

v. Stone, 68 F.3d 973, 984 (6th Cir. 1995) (preventing

Army from excluding religion from on-base childcare

services). In applying judicial review to constitutional

claims, the Ninth Circuit has held that “[r]esolving a

claim founded solely upon a constitutional right is

singularly suited to a judicial forum and clearly

inappropriate to an administrative board.” Downen,

481 F.2d at 643. This Court should grant certiorari to

clarify when military decisionmakers should receive

deference, making clear that constitutional claims

merit judicial review.

C. RFRA and the First Amendment

provide robust protection for the

religious

freedom

of

service

members.

Courts have made clear that RFRA “undoubtedly

‘applies in the military context.’” U.S. Navy Seals 1-26,

27 F.4th at 346 (citing United States v. Sterling, 75

M.J. 407, 410 (C.A.A.F. 2016)); Katcoff v. Marsh, 755

F.2d 223, 227 (2d Cir. 1985).

Yet for twenty years after a bipartisan Congress

passed RFRA in 1993, the military largely ignored it.

Michael Berry & Antony Barone Kolenc, Born-Again

RFRA: Will the Military Backslide on its Religious

Conversion? 87 MO. L. REV. 463, 466 (2022). Until

2014, most military regulations were only required to

meet the rational basis test to justify curtailments of

service members’ religious liberty. Id. at 464-65

(discussing 2009 regulations that kept 1988 language

leaving religious accommodation decisions completely

up to commanders, “when accommodation will not

have an adverse impact on mission accomplishment,

military readiness, unit cohesion, standards, or

11

discipline” (quoting DOD INSTRUCTION 1300.17,

Accommodation of Religious Practices Within the

Military Services (Feb. 10, 2009) (now superseded))).

This reluctance to follow statutory protections for

religious liberty should caution courts from granting

unusual deference to the military where Congress has

spoken.

Only in 2014, after a clear Congressional mandate,

did the Department of Defense (“DoD”) finally follow

the law and incorporate RFRA, its “substantial

burden” requirement, and its strict scrutiny test into

military regulations. DOD INSTRUCTION 1300.17,

Accommodation of Religious Practices Within the

Military Services (Feb. 10, 2009) (Incorporating

Change 1, Effective Jan. 22, 2014), at ¶ 4(e)(1).

Despite the military’s unwillingness to abide by

congressional mandates, courts have applied RFRA to

protect the religious liberty of service members in

multiple contexts. See, e.g., Carter, 168 F. Supp. 3d at

229 (Army violated RFRA by subjecting Sikh soldier to

discriminatory testing); Singh v. McHugh, 185 F.

Supp. 3d 201, 222 (D.D.C. 2016) (Army violated RFRA

by refusing to provide religious beard and turban

accommodation for Sikh recruit seeking to enroll in

ROTC); Rigdon v. Perry, 962 F. Supp. 150, 160-62

(D.D.C. 1997) (military violated RFRA when it

prohibited chaplains from encouraging congregants to

contact Congress in favor of antiabortion legislation).

This interplay between Congress, the DoD, and the

courts illustrates how separate powers keep each

other in check. When the Supreme Court’s decision in

Employment Div., Dep’t of Hum. Res. v. Smith, 484

U.S. 782 (1990), weakened free exercise protections,

12

Congress passed RFRA to reinstate the compelling

interest test and protect religious liberty across all

federal agencies, including the military. Holt, 574 U.S.

at 356-57. Twenty years later, after the military

consistently ignored this requirement, Congress

included religious accommodation standards in the

National Defense Authorization Act, prompting the

DoD to formally adopt RFRA’s protections. 2 Thus,

Congress used RFRA to limit both judicial and

executive overreach. Yet these checks and balances

are only effective if they are mutual. If the judicial

branch refuses to check the executive branch by

holding it to congressional standards, our uniquely

balanced system becomes lopsided. Indeed, the

Founders recognized that to maintain the separation

of powers “essential to a free government,” the

different branches must “be so far connected and

blended as to give to each a constitutional control over

the others.” James Madison, The Federalist Papers,

No. 48 (Feb. 1, 1788). To that end, “[c]ommand power

. . . is subject to limitations consistent with a

constitutional Republic whose law and policymaking

branch is a representative Congress.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645-46

(1952) (Jackson, J., concurring). By enforcing

congressional statutes such as the APA and RFRA

that place limits on executive agencies, courts

preserve liberty and provide a meaningful check on

executive power.

Following congressional guidance, the DoD fully

embraced RFRA in 2020 with five significant updates

2 See National Defense Authorization Act for Fiscal Year 2013,

Pub. L. No. 112-239, § 533; National Defense Authorization Act

for Fiscal Year 2014, Pub. L. No. 113-66, § 532.

13

for religious accommodations: 1) shifting the burden of

proof from the individual to the DoD; 2) placing 30-60

day

deadlines

on

decisions;

3)

requiring

decisionmakers to consider alternate means of

accommodating religious exercise; 4) requiring

granted accommodations to remain for the duration of

one’s career unless rescinded; and 5) defining

“substantial burden.” See DOD INSTRUCTION 1300.17,

Religious Liberty in the Military Services (Sept. 1,

2020); Berry & Kolenc at 467. With these updates,

service members must enjoy all the protections that

RFRA extends to civilians.

The First Amendment also protects service

members. Chappell v. Wallace, 462 U.S. 296, 304

(1983) (“our citizens in uniform may not be stripped of

basic rights simply because they have doffed their

civilian clothes”) (citation omitted); Hartmann, 68

F.3d at 984 (“First Amendment protection still exists”

for service members); Nieto, 715 F. Supp. 2d at 656

(“While military officials are entitled to great

deference in restricting speech to further the military's

needs, they may not do so in a manner that

discriminates against a particular point of view.”).

Despite these robust statutory and constitutional

protections, service members’ religious exercise is

often curtailed without meaningful access to judicial

review. Military commands are hierarchal by nature,

units often encounter exigent circumstances, and

courts routinely refuse to provide meaningful review

of military decisions because they extend “unusual

deference” instead of applying constitutional or

statutory requirements. Thus, service members often

face a bleak landscape where RFRA’s protections are

just a mirage. See, e.g., Creaghan v. Austin, No. 22-

14

0981, 2022 WL 1500544, at *8 (D.D.C. May 12, 2022)

(denying preliminary injunction to Space Force

captain seeking religious vaccine exemption based on

RFRA, because of deference to “the military’s

technical, scientific findings supporting the wisdom of

a particularly, generally applicable military order”);

Sterling, 75 M.J. at 419 (affirming bad-conduct

discharge and rejecting RFRA defense of Marine who

posted Bible verse because “the military must foster

instinctive obedience” to superiors); United States v.

Webster, 65 M.J. 936, 945-46 (A. Ct. Crim. App. 2008)

(rejecting Muslim Sergeant’s RFRA claim and

applying “judicial deference when strictly scrutinizing

the military’s burden on the free exercise of religion”).

Decisions like these ignore the clear intent of

Congress in passing RFRA, because “there is simply

no language in RFRA that requires a different level of

deference to military decision-making than courts

must apply to decision-making by any other

governmental entity that falls within the scope of

RFRA.” Roth, 2022 WL 1568830, at *12. RFRA rightly

permits courts to recognize “[t]he fundamental

necessity for obedience, and the consequent necessity

for imposition of discipline,” which set the military

apart from civilian life. Parker v. Levy, 417 U.S. 733,

758 (1974). Yet this discretion cannot nor should not

be unfettered, because not every asserted government

interest is compelling. And there are often ways to

accommodate a service member’s religious exercise

that do not inhibit the military’s compelling interest.

15

RFRA is a unique statutory exception to judicial

deference that requires no less. 3

For example, when Sikh and Muslim service

members sought religious garb accommodations, both

the Army and the Air Force modified their grooming

policies. 4 The Army’s regulations strike the proper

balance that RFRA requires, allowing commanders to

disapprove religious accommodation requests only if 1)

“the request is not based on a sincerely held belief”, or

2) if the commander “identifies a specific, concrete

hazard . . . that cannot be mitigated by reasonable

measures.” 5 Similarly, updated Air Force guidance

requires the military to satisfy RFRA’s compelling

interest test even “when accommodation would

3 RFRA’s proper application here is entirely consistent with the

Constitution’s requirement that “[t]he Congress shall . . . make

Rules for the Government and Regulation of the land and naval

Forces.” U.S. Const. art. I, § 8, cl. 14. This limited exception to

judicial deference to miliary judgment does not encroach upon the

deference principle in any other context. It merely effectuates

Congress’s overwhelming desire to specifically protect religious

liberty across the federal government, including in the

military. Cf. Wendy S. Whitbeck, Restoring Rites and Rejecting

Wrongs: The Religious Freedom Restoration Act, 18 SETON HALL

LEGIS. J. 821, 863 (1994) (“The Senate passed the amended RFRA

by the large margin of 97-3. The House of Representatives

considered and accepted the Senate [version]. . . . President

Clinton enthusiastically signed the RFRA of 1993 into law on

November 16, 1993.”).

4 Dave Philipps, The Marines Reluctantly Let a Sikh Officer Wear

a Turban. He Says It’s Not Enough, N.Y. TIMES (Sept. 26, 2021),

https://perma.cc/LV3V-7UZV.

5

Army Directive 2017-03, ¶ 3(c) (Jan. 3, 2017),

https://perma.cc/RV43-Q94U.

16

adversely affect mission accomplishment.” 6 Another

Air Force regulation makes clear that “[c]ommanders

may only impose limits on [religious] expressions

when there is a real (not theoretical) adverse impact

on military readiness, unit cohesion, good order and

discipline, health or safety of the member or the unit,”

and “[a]ny imposed limitations will employ the least

restrictive means possible on expressions of sincerely

held religious beliefs.” 7 These updates have made it

possible for at least 100 Sikhs to serve in the Army and

Air Force with courage and distinction. 8

These regulations demonstrate that application of

RFRA’s strict scrutiny test may allow for some

deference to military commanders and decisions,

especially when those decisions involve the dynamic

nature of modern warfare. What RFRA prohibits is

“unusual deference” to military decisionmakers that

courts often apply blindly, without considering

whether the military’s interest in that context

regarding that service member is compelling, or

whether there is a less restrictive way to pursue that

interest. Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 726 (2014) (RFRA requires government to satisfy

compelling interest test “through application of the

challenged law ‘to the person’—the particular

claimant whose sincere exercise of religion is being

substantially burdened.”) (quoting Gonzales v. O

6 Secretary of the Air Force, Air Force Instruction 36-2903, Dress

and Personal Appearance of Air Force Personnel, ¶ A8.1 (Feb. 7,

2020), https://perma.cc/G72G-ZQ2T.

7 Secretary of the Air Force, Department of the Air Force

Instruction 52-201, Religious Freedom in the Department of the

Air Force, ¶ 2.1 (June 23, 2021), https://perma.cc/E3HQ-MNZS.

8 Dave Philipps, The Marines Reluctantly Let a Sikh Officer Wear

a Turban. He Says It’s Not Enough, supra note 4.

17

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.

418, 430-31 (2006)).

Under the “unusual deference” standard, service

members alleging violations of religious freedom or

other constitutional rights would always lose,

regardless of how unobstructive their requests may be.

That is not what Congress intended, nor what the

Constitution requires. When Congress passed RFRA,

it clearly applied to the military. H.R. Rep. No. 103-88,

at 8 (1993) (“[p]ursuant to the Religious Freedom

Restoration Act, courts must review the claims of . . .

military

personnel

under

the

compelling

governmental interest test”); S. Rep. No. 103-111, at

12 (1993) (same). Thus, Congress “placed a thumb on

the scale in favor of protection religious exercise” even

in the military context. McHugh, 185 F. Supp. 3d at

222. Indeed, “RFRA operates as a kind of super

statute, displacing the normal operation of other

federal laws.” Bostock v. Clayton Cty., Ga., 140 S. Ct.

1731, 1754 (2020).

Thus, RFRA’s test strikes the right balance:

requiring courts to consider the military’s compelling

interests in security and mission accomplishment, yet

also requiring them to weigh the effects on individual

service members with sincerely held religious beliefs.

II.

National security suffers when service

members’ constitutional rights are

violated.

When U.S. service members are forced to choose

whether to serve their God or their country, the

consequences for our nation are devastating. Violating

service members’ rights causes a significant loss of

18

American military strength through long-term

damage to retention, recruitment, and morale.

First, the financial costs of religious discrimination

illustrate its negative effects on retention. For

example, it costs an estimated $1 million to train a

single Navy SEAL. U.S. Navy SEALs 1-26, 27 F.4th at

342. Discharging the plaintiffs in that case, as the

Navy has continually threatened, would cost $35

million—besides the 4,095 other certified class

members who also face discharge without judicial

protection. U.S. Navy Seals 1-26, No. 4:21-cv-01236-O,

2022 WL 1025144, at *1 (N.D. Tex. Mar. 28, 2022).

More than 260,000 troops—about 13% of the total

force—are not yet fully vaccinated, plus thousands

more who have not received any doses to date. 9 As the

director of the National Guard explained, its 40,000

unvaccinated members represent “a significant

chunk” of the force, and “there’s readiness

implications . . . and concerns associated with that.” 10

Discharging seasoned service members when the

strength and military readiness of several branches is

declining has serious implications for national

security. According to the Center for a New American

Security, “dismissals could jolt the Air Force personnel

system and cause significant challenges within units

that must be ready to respond to crises at a moment’s

notice, especially if some vital jobs—like pilots or

9 Department of Defense, Coronavirus: DOD Response, updated

July 13, 2022, https://perma.cc/3TSN-KFEX.

10 Lolita C. Baldor, Army Guard Troops Risk Dismissal as

Vaccine Deadline Looms, DEFENSENEWS (June 26, 2022),

https://bit.ly/3OcZFWV.

19

aircraft maintainers—are overrepresented among

those who could face expulsion.” 11

Second, as our nation grows increasingly diverse,

military leaders have emphasized the importance of

diversity in recruiting. 12 The Marines and Navy even

relaxed their grooming standards to reduce barriers to

entry, allowing full-sleeve tattoos, alternative

hairstyles for women, and exemptions for medical

beards. Yet at the same time, both branches have

enforced a near-total ban on religious beards and

turbans, which excludes all Sikhs and many Muslims

and Jews from even completing recruit training

without permanently compromising their sincerely

held religious beliefs. See, e.g., Di Liscia v. Austin, No.

1:21-cv-01047 (D.D.C. Apr. 15, 2021), ECF No. 7

(granting administrative stay to protect Jewish and

Muslim sailors from no-shave orders while case is

pending); Toor v. Berger, No. 1:22-cv-01004-RJL

(D.D.C. Apr. 13, 2022), ECF No. 16-1 (awaiting ruling

11 Alex

Horton, Air Force is First to Face Troops’ Rejection of

Vaccine Mandate as Thousands Avoid Shots, WASHINGTON POST

(Oct. 28, 2021), https://perma.cc/X7B6-F9PD.

12 General David Berger: “The Marine Corps draws its collective

strength and identity from all its Marines, so it is critical that we

prioritize policies that maximize the individual strengths of every

Marine, regardless of race, gender, sexual orientation, creed, or

any other marker.” Philip Athey, Here’s Where Ponytails Stand

for Women in the Marine Corps, MARINE CORPS TIMES (Nov. 4,

2021), https://perma.cc/DR75-BAP3; Secretary of the Navy Carlos

Del Toro: “[We] can only overcome the complex challenges we face

every day by cultivating the talent and unique insights of

individuals from diverse personal, cultural, and professional

backgrounds.” Carlos Del Toro, One Navy-Marine Corps Team:

Strategic Guidance From The Secretary of the Navy, at 5 (Oct.

2021), https://perma.cc/MDT2-7TQM.

20

on preliminary injunction motion by Sikh captain and

recruits). Shutting out entire categories of willing and

able recruits, particularly those with helpful linguistic

and cultural skills, is not merely unconstitutional but

also defies logic. Carter, 168 F. Supp. 3d at 235

(finding that “the public has a significant interest in

having a diverse military,” and that religious

discrimination “is likely to discourage Sikhs and other

minorities from military service”). This is especially

problematic when every branch is struggling to meet

its 2022 recruiting goals, with only 23% of Americans

ages 17-24 eligible to join without a waiver. 13

Third, because religious faith plays such a

significant role for service members, religious

discrimination has devastating effects on morale.

Religious exercise is critical for service members

“uprooted from their home environments, transported

often thousands of miles to territories entirely strange

to them, and confronted there with new stresses.” U.S.

v. Navy Seals 1-26, 27 F.4th at 346 (quoting Katcoff,

755 F.2d at 227-28). These stresses include “loneliness

when on duty . . . fear of facing combat or new

assignments,

financial

hardships,

personality

conflicts, and drug, alcohol or family problems.”

Katcoff, 755 F.2d at 227-28. Because faith provides a

lifeline for so many service members, granting

religious accommodations is a significant way to

bolster morale and improve retention. Service

members who can freely express their religious

identity are less likely to struggle with mental health

issues and more likely to remain in the military long13 Courtney Kube & Molly Boigon, Every Branch of the Military

is Struggling to Make its 2022 Recruiting Goals, Officials Say,

NBC NEWS (June 27, 2022), https://perma.cc/AE4F-LGKT.

21

term. 14 Conversely, according to the Department of

Veterans Affairs, exposure to “morally injurious

events,” that is, “exposure to acts that violate one’s

moral code,” leads to increased risk for suicidal

behavior and other mental health conditions. 15

Thus, forcing service members to choose between

violating their sincere religious convictions or

suffering the lifelong consequences of discharge or

court-martial not only violates their rights, but also

harms them in lasting ways. This Court need look no

further than the recent COVID-19 vaccine mandates

and the resulting chaos from terminations, forced

retirements, and nonjudicial punishments as

thousands of service members face involuntary

discharge or retirement. For example, in U.S. Navy

SEALs 1-26, Navy SEAL 3 was receiving treatment for

traumatic brain injury and post-traumatic stress

disorder from previous deployments when he heard

that his religious accommodation request was denied

and that his role was being replaced. U.S. Navy SEALs

1-26, No. 4:21-cv-01236-O (Dec. 20, 2021), Mot. Hr’g

Tr. at 23, 24, 32 (“Part of the treatment was to step

away from the stress . . . I was surprised . . . that they

continued to add the stress onto my life while I was

seeking treatment”). Navy SEAL 2 testified about the

damage to morale resulting from denied religious

accommodations: “Multiple personnel from different

commands have been relieved of their milestone

positions that . . . essentially railroad their careers.

14 Shareda Hosein, Muslims in the U.S. Military: Moral Injury

and Eroding Rights, PASTORAL PSYCHOLOGY, 68: 77-92 at 86, 89

(Nov. 12, 2018), https://perma.cc/LC9H-SFZP.

15 Department of Veterans Affairs, Address Moral Injury to

Reduce Veteran Suicide Risk (2021), https://bit.ly/3uTsqBf.

22

And some members . . . have been made to do menial

labor tasks, cleaners, sweeping clean grounds” apart

from their commands. Id. at 63:2-12. Another Navy

plaintiff testified: “I believe I was being coerced into

receiving the vaccine . . . basically being in fear of not

having a job once leaving the command.” Id. at 86:116.

Given the damaging effects of religious

discrimination on morale, recruitment, and retention,

courts that apply unusual deference only exacerbate

these problems. Instead, courts can support national

security efforts and bolster military strength by

ensuring that service members’ religious freedoms are

protected. While the military has a duty to protect

national security, the courts have a duty to protect

constitutional rights. Courts must fulfill their

constitutional role to ensure that the rights of service

members are not jeopardized as the military pursues

its mission of protecting national security.

III.

This Court has recently cautioned

against undue deference and should

apply that analysis here to protect the

rights of service members.

The military is not the only context where

government agencies expect deference. In prisoner

cases, the Court has struck the proper balance by

recognizing prisons’ compelling interest in security,

but also requiring them to prove that they are using

the least restrictive means to pursue that interest. In

Holt v. Hobbs, a Muslim prisoner seeking to grow a

religious beard lost in lower courts because they

deferred to prison officials on security matters. 574

U.S. at 260. This Court reversed, unanimously holding

23

that the prison violated Mr. Holt’s rights under the

Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) and the Free Exercise Clause because it

failed to show that shaving his beard was the least

restrictive means of pursuing its compelling interest

in security. The Court required the government to

satisfy the compelling interest test regarding “the

particular claimant”: a “broadly formulated interest”

in prison security was not enough. Id. at 362-63.

RLUIPA “does not permit such unquestioning

deference,” but like its sister statute RFRA, “makes

clear that it is the obligation of the courts to consider

whether exceptions are required under the test set

forth by Congress.” Id. at 364 (citation omitted).

Given that RFRA and RLUIPA use “the same

standard,” id. at 358, Holt begs the question: why do

military officials deserve unusual deference when

prison officials must comply with federal civil rights

statutes? And why do prisoners receive greater

religious liberty protections than military service

members?

The day before granting the Navy a partial stay in

U.S. Navy SEALs 1-26, the Court upheld religious

liberty in Ramirez v. Collier, 142 S. Ct. 1264 (2022),

where a death row inmate asked for his long-time

pastor to lay hands on him and pray audibly during

his execution. Writing for an eight-member majority,

Chief Justice Roberts recognized that prisons “have a

compelling interest in monitoring an execution and

responding

effectively

during

any

potential

emergency,” but refused the prison’s request “that we

simply defer to their determination” that they could

not allow Ramirez’ pastor to speak. Id. at 1279. The

Court held the government to its proof.

24

Although RFRA uses the same compelling interest

test, the Court extended deference to the military in

U.S. Navy Seals 1-26. Like the prison in Ramirez,

which asked for deference without providing any

evidence supporting its conclusion, the Navy provided

no evidence that unvaccinated SEALs had

compromised any missions or even posed a risk to

their units. U.S. Navy Seals 1-26, 27 F.4th at 351-52.

Justice Alito’s dissent pointed out that at trial, “mere

‘conjecture’ or ‘speculation’ would not be enough” to

prove that the Navy’s concerns justified infringing the

SEALs’ religious exercise. Id. at 1305 (citing Ramirez,

142 S. Ct. at 1280)). Justice Alito highlighted the

“striking” contrast between Ramirez and U.S. Navy

SEALs 1-26: “We properly went to some lengths to

protect Ramirez’s rights because that is what the law

demands. We should do no less for [the SEALs].” U.S.

Navy SEALs 1-26, 142 S. Ct. at 1307-08.

If convicted murderers on death row have robust

religious liberty rights protected by federal statutes

and the Constitution—and they should—our nation’s

service members should receive at least the same

protections in court. By properly putting the

government to its proof instead of granting unusual

deference, this Court can respect military

decisionmakers while also honoring the rights of

service members who make daily sacrifices to protect

our own liberties.

CONCLUSION

The Court should grant the petition and reverse.

25

Respectfully submitted,

Pam Bondi

Jessica Hart Steinmann

Craig Trainor

Rachel Jag

AMERICA FIRST POLICY INSTITUTE

1001 Pennsylvania Ave. NW

Suite 530

Washington, D.C. 20004

(571) 348-1802

Kassandra L. Dulin

Kayla A. Toney

FIRST LIBERTY INSTITUTE

227 Pennsylvania Ave SE

Washington, D.C. 20003

(202) 921-4105

Kelly J. Shackleford

Counsel of Record

Jeffrey C. Mateer

Michael D. Berry

David J. Hacker

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway

Suite 1600

Plano, TX 75075

(972) 941-4444

kshackleford@firstliberty.org

Counsel for Amici Curiae