Amicus Curiae Brief — Israel Alvarado, et al., Petitioners v. Lloyd J. Austin, III, Secretary of Defense, et al.

No. 23-717

IN THE

Supreme Court of the United States

_____________________________

ISRAEL ALVARADO, ET AL.,

Petitioners,

v.

LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, ET AL.,

Respondents.

_____________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

_____________________________

BRIEF OF AMICI CURIAE FOUNDATION FOR

MORAL LAW, MINISTRY TO THE ARMED

FORCES OF THE CHURCH OF THE LUTHERAN

BRETHREN, AUSBERG LUTHERN CHURCHES,

AND BIBLE CHURCHES CHAPLAINCY IN

SUPPORT OF PETITIONERS

_____________________________

John A. Eidsmoe*

*Counsel of Record

Talmadge Butts

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

talmadge@morallaw.org

February 2nd, 2024

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF THE ARGUMENT......................... 1

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

I.

The Constitution, including the First

Amendment, clearly applies to military

personnel ........................................................... 4

II. Religious exemption requests should be

liberally construed in favor of persons

making the requests .......................................... 8

III. Offering exemptions but categorically

denying them is bad faith ............................... 15

IV. The military’s efforts to remedy the

damage to the chaplains’ lives and careers

are inadequate ................................................. 18

V. The law provides for money damages, but

money damages cannot fully compensate

the tarnishing of a military career ................. 21

VI. The military compelled the chaplains to

speak contrary to their convictions in

violation of their First Amendment rights

.......................................................................... 22

VII. The military’s repression of the chaplains

infringes not only the chaplains’

constitutional rights but also those of

their denominations and endorsing

ii

agencies............................................................ 24

CONCLUSION ....................................................... 26

iii

TABLE OF AUTHORITIES

Cases

Page

Adkins v. Rumsfield,

389 F. Supp. 2d (2005) ........................................ 5

Air Force Officer v. Austin,

Civil Action 5:22-cv-00009-TES (M.D. Ga.

Feb. 15, 2022) ............................................... 15-16

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)........................................... 11

Carlson v. Schlesinger,

511 F. 2d. (D.C. Cir. 1975) .................................. 5

Chappell v. Wallace,

462 U.S. 296 (1983)............................................. 5

Chiafalo v. Washington

140 S. Ct. 2316 (2020)......................................... 3

Church of the Holy Trinity v. United States,

143 U.S. 457 (1892)...................................... 14-15

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2020)....................................... 17

Greer v. Spock,

424 U.S. 828 (1976)............................................. 5

Little Sisters of the Poor Saints Peter and

Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020)....................................... 11

iv

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974)........................................... 23

Mindes v. Seaman,

453 F. 2d 197 (5th Cir. 1971).............................. 8

National Inst. of Family and Life Advocates,

d/b/a NIFLA v. Becerra,

138 S. Ct. 1275 (2018)....................................... 23

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989)........................................... 21

Sherbert v. Verner,

374 U.S. 398 (1963)........................................... 11

Thomas v. Review Bd. of Ind. Emp’t. Sec. Div.,

450 U.S. 707 (1981)........................................ 9-11

United States v. Ballard,

322 U.S. 78 (1944)............................................... 9

Uzuegbunam v. Preczewski,

592 U.S. ___ (2020) ........................................... 21

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)........................................... 23

Whole Woman’s Health v. Paxton,

10 F. 4th. 430 (5th Cir. 2021) ........................... 12

Wooley v. Maynard,

430 U.S. 705 (1977)........................................... 23

v

Codes, Constitutions, Executive

Regulations, & Statutes

Orders,

Department of Defense Instruction 1300.17 ........ 7-8

Department of the Air Force Instruction 152201.1.2.3 ........................................................... 7-8

DODD 1300.17, “Religious Liberty in the

Military Services” ............................................... 7

Executive Order 13798, “Promoting Free

Speech and Religious Liberty” ........................... 6

Religious Freedom Restoration Act of 1993,

Public Law No. 103-141, 107 Stat. 1488, 42

U.S.C. § 2000bb................................................ 7-8

U.S.C. Sec. 533(b) ................................................... 24

Other Authorities

Catholic Fact Checking, Vaccine Exemption

Resources for Individuals, https://catholicfactchecking.com/2021/07/vaccineexemption-resource-for-individuals/ ........... 11-12

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/ArticleDisplay/Article/2831845/daf-covid-19statistics-jan-25-2022/ ...................................... 15

Dr.

Colleen Huber, Neither Safe Nor

Effective: The Evidence Against the

vi

COVID Vaccines in 700+ Medical Studies,

2d (Huber: 2023) ................................................. 4

H.D. Gunnarsdóttir, M.S. Sinha, S. Gerke, &

T. Minsenn, Applying the proportionality

principle to COVID-19 antibody testing, 7

J. of Law and the Biosciences 1 (2020),

available

at

https://academic.oup.com/jlb/article/7/1/ls

aa058/5878809. ............................................ 11-12

Lt Gen James B. Hecker, 1st Ind, AU/CC, 13

Oct 2021, Religious Accommodation

Request for Maj Darrel L. Schrader,

MEMORANDUM FOR AETC/CC ...................... 9

Luca Cacciatore, Report: Air Force Only

Granted Religious Vax Exemptions to

Exiting

Airmen,

May

10,

2022,

https://www.newsmax.com/newsfront/mili

tary-covid-19-religiousliberty/2022/05/10/id/1069318/ ......................... 16

Military

Pay

Chart

2023,

https://militarypay.com/Charts/2023%20

Military%20Pay%20Chart.pdf. ........................ 21

President Joseph Biden, "Biden Says COVID19 Pandemic Is 'Over' in U.S.," September

19, 2022, https://www.cbsnews.com/news/

biden-covid-pandemic-over/ ................................ 3

Secretary of the Air Force Memorandum,

Department of the Air Force (DAF)

Guidance on Removal of Adverse Actions

and

Handling

of

Religious

Accommodations Requests, 24 Feb 2023 ......... 19

vii

Secretary of the Air Force Public Affairs, DAF

COVID-19 Statistics - June 2022, June 28,

2022,

https://www.af.mil/News/ArticleDisplay/Article/3055214/daf-covid-19statistics-june-2022/ ......................................... 16

The Holy Bible................................................... 11-13

1

INTEREST OF AMICUS CURIAE1

Amicus

Foundation

for

Moral

Law

("Foundation") is a 501(c)(3) non-profit, nonpartisan 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 (five years

active duty, eighteen years active reserves) 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 and serves as Director of

Military Chaplaincy for the Association of Free

Lutheran Congregations.

The Foundation has received more requests for

assistance on the issue of religious exemptions from

COVID vaccination requirements than on any other

1 Counsel of record for all parties received notice at least ten

days prior to the due date of amicus curiae’s intention to file

this brief. Pursuant to Rule 37.6, amicus curiae certifies that

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.

2

issue since we were founded in 2003. Most of these

requests have come from military personnel and/or

civilian employees of the military. These fine

patriotic personnel desire nothing but to serve their

country honorably, but they and their families have

faced and in some instances are still facing career

disruption, loss of salary and benefits, disciplinary

action, disparagement of their reputations, and

untold emotional distress. Chaplains stand in the

forefront of the defense of religious liberty in the

military.

Amicus Ministry to the Armed Forces of the Church

of the Lutheran Brethren serves as the endorsing

agency for chaplains of the Church of the Lutheran

Brethren and for chaplains of the Association of Free

Lutheran Congregations.

Amicus

Ausberg Lutheran Churches is the

endorsing agency for the fellowship of Ausberg

Lutheran Churches.

Amicus Bible Churches Chaplaincy serves as the

endorsing agency for chaplains of the Independent

Fundamental Churches of America International.

The above-named Amici endorsers do not take a

doctrinal stand on the issue of vaccination, but they

fully support the right of their chaplains to oppose

vaccination and are highly concerned that their

chaplains may face adverse consequences for

exercising their religious convictions.

The Foundation believes these military chaplains

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

3

good chaplains, 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 for standing upon their sincere religious

beliefs.

SUMMARY OF THE ARGUMENT

President Joseph Biden stated flatly on

September 19, 2022, "The pandemic is over." 2 But

few doubt that there will be future pandemics,

whether of Covid or something else.

The

constitutional issues of free exercise of religion,

freedom of speech, and the right to privacy will not

go away, at least not for long.

Crucial constitutional issues are better

addressed in calm than in crisis. See, e.g., Chiafalo

v. Washington, 140 S. Ct. 2316 (2020) (resolving the

issue of the “faithless elector” during a period of

calm, without waiting for a rushed political crisis

that might depend on the judicial outcome). During

the recent COVID pandemic, military commanders,

doctors, health officials, lawyers, judges, and others

acted in haste. They were uncertain how long the

pandemic would last or how severe it would be. If

they acted too harshly, they might endanger civil

liberties; if they did not act harshly, they wrongly

feared they might endanger the lives of many, and

2 President Joseph Biden, "Biden Says COVID-19 Pandemic Is

'Over'

in

U.S.,"

September

19,

2022,

https://www.cbsnews.com/news/biden-covid-pandemic-over/

4

in the case of military commanders, endanger

military preparedness.3

Now is the time to take the lessons we have

learned from the past pandemic and develop them

into sound legal principles that ensure national

safety while protecting constitutional liberties.

Otherwise, we will face the next pandemic just as

unprepared as we were for the last one.

ARGUMENT

Amici fully support the arguments of Petitioners

in their Complaint and will not duplicate those

arguments. We fully agree that the Fourth Circuit

ruling that the case is moot is wrong and conflicts

with precedents of other Circuits and of this Court.

Amici raise the following additional points for the

Court’s consideration:

I. The

Constitution,

including

Amendment, clearly applies

personnel.

the

First

to military

The courts have given no 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 an oath to support and defend the

Constitution of the United States are entitled to the

protection the Constitution provides to all. A marble

3 Dr.

Colleen Huber’s book, Neither Safe Nor Effective: The

Evidence Against the COVID Vaccines in 700+ Medical

Studies, 2d (Huber: 2023), provides convincing evidence that

many of the earlier concerns about allowing people to be

unvaccinated were unfounded.

5

monument at the amphitheater of Arlington

National Cemetery displays the engraved words of

George Washington, Commander of the Continental

Army and President when the Bill of Rights was

adopted: “When we assumed the Soldier, we did not

lay aside the Citizen.” (Order, p. 1).

Servicemen and women are entitled to protection

of free speech and free exercise of religion under the

First Amendment, which states,

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

These rights are not stripped away when one enters

the military; servicemen and women are entitled to

exercise these rights. “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,

(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, 511 F. 2d 1327 (D.C. Cir.

1975). The First Amendment applies to all

servicemen and servicewomen without exception.

The District Court below cited Elrod v. Burns, 427

U.S. 347, 373 (1976), “The loss of First Amendment

6

freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.”

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 freedom of

persons and organizations to engage in

religious and political speech.

7

“All executive departments and agencies” clearly

includes the Department of Defense.

In keeping with the President's Executive Order,

on September 1st, 2020 the Department of Defense

issued DODD 1300.17, “Religious Liberty in the

Military Services.” This Directive provides in part

in 1.2:

a. Pursuant to the Free Exercise Clause of the

First Amendment to the United States

Constitution, Service members have the right

to observe the tenets of their religion or to

observe no religion at all, as provided in this

issuance.

b. In accordance with Section 533(a)(1) of

Public Law 112-239, as amended, the DoD

Components will accommodate individual

expressions of sincerely held beliefs

(conscience, moral principles, or religious

beliefs) which do not have an adverse impact

on military readiness, unit cohesion, good

order and discipline, or health and safety. A

Service member’s expression of such beliefs

may not, in so far as practicable, be used as

the basis of any adverse personnel action,

discrimination, or denial of promotion,

schooling, training, or assignment.

The various branches of the armed forces issued

similar directives.

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 Department of Defense Instruction

8

1300.17 and Department of the Air Force Instruction

152-201.1.2.3 23 June 2021) 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.

Asserting that the courts should defer to the

military on matters like vaccination, the DoD relies

heavily upon Mindes v. Seaman, 453 F.2d 197 (5th

Cir. 1971). However, Mindes was never intended to

deprive military personnel of their constitutional

rights, and at least three of the four Mindes factors

(nature and strength of the challenge, impact on

servicemen, and the involvement of military

expertise) would weigh in favor of Petitioners.

II. Religious exemption requests should be liberally

construed in favor of the persons making the

requests.

A government official may consider whether an

individual’s religious beliefs are sincere, but beyond

that he 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.

But that is precisely what the Air Force did with

Petitioner Schrader’s request for religious

exemption from vaccination. In a letter to the RAR

(Religious Accommodation Request) decision

authority, Chaplain Schrader’s senior rater, the

Commandant and President of the Air University,

chose not to recommend that Chaplain Schrader’s

RAR be approved because:

9

While I accept the sincerity of Maj Schrader’s

beliefs, his position that getting the vaccine

constitutes an act of worship to a false God

(i.e., the State) arguably appears to be in

conflict with his service as a [sic] an officer—

service he entered voluntary [sic] and in doing

so bore allegiance to the State, which at times

requires him to do it’s [sic] bidding. His

assertion on this point, through sincere,

seems inconsistent and falls flat.4

In so saying, the Commander exceeded his authority

under the mandate and under the United States

Constitution. As the Supreme Court said in United

States v. Ballard, 322 U.S. 78 at 86 (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.

4 Lt

Gen James B. Hecker, 1st Ind, AU/CC, 13 Oct 2021,

Religious Accommodation Request for Maj Darrel L. Schrader,

MEMORANDUM FOR AETC/CC, para 3.

10

Review Bd. Of Ind. Employment Sec. Div., 450 U.S.

707 at 715-16 (1981),

In reaching its conclusion, the Indiana court

seems to have placed considerable reliance on

the facts that Thomas was "struggling" with

his beliefs and that he was not able to

"articulate" his belief precisely. It noted, for

example, that Thomas admitted before the

referee that he would not object to "working

for United States Steel or Inland Steel . . .

produc[ing] the raw product necessary for the

production of any kind of tank . . . [because I]

would not be a direct party to whoever they

shipped it to [and] would not be . . . chargeable

in . . . conscience. . . ." Ind., 391 N.E.2d, at

1131.

The court found this position inconsistent

with

Thomas'

stated

opposition

to

participation in the production of armaments.

But Thomas' statements reveal no more than

that he found work in the roll foundry

sufficiently

insulated

from

producing

weapons of war. We see, therefore, that

Thomas drew a line, and it is not for us to say

that the line he drew was an unreasonable

one. Courts should not undertake to dissect

religious beliefs because the believer admits

that he is "struggling" with his position or

because his beliefs are not articulated with

the clarity and precision that a more

sophisticated person might employ.

...

11

Courts are not

interpretation.

arbiters

of

scriptural

The Thomas Court further stated, citing Sherbert v.

Verner, 374 U.S. 398, 404 (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.S. 682,

724 (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 (2020),

recognizing the propriety of, if not also the need for,

a religious exemption to federal healthcareregulating statutes.

Religious beliefs raised by Petitioners and by

other persons who have sought assistance from

Amicus Foundation include the following:

(1) That the body is the temple of the Holy Spirit

and therefore should not be defiled with an

experimental drug that could be dangerous. Some

Roman Catholic theologians have articulated an

ethical position called “therapeutic proportionality”

which means that because the human body is God’s

creation (Genesis 2:7) and the temple of the Holy

Spirit (1st Corinthians 6:19-20), a person has a duty

to God to weigh the possible benefits of medicine

against possible risks and adverse consequences,

and to refuse medical treatment if risks and adverse

consequences

outweigh

the

benefits.

See

https://catholic-factchecking.com/2021/07/vaccine-

12

exemption-resource-for-individuals/;

see

also

https://academic.oup.com/jlb/article/7/1/lsaa058/587

8809.

(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 21:2225; 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 coerced to accept any such COVID-19 vaccines.

Some DOD officials may disagree with

Petitioners’ views on abortion, or they may disagree

that the fact that the vaccine is made from cell lines

of aborted babies is a sufficient reason to oppose it.

But they may not reject an RAR just because they

disagree with it.

(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”).

13

(4) That God has established civil government

and has given civil government certain limited

authority (Romans 13:1-7), but that when

government exceeds its God-given (i.e., legitimate)

authority, it becomes tyrannical, and the individual

has a duty before God to resist the unlawful

mandates of a tyrannical government.

The DOD and the courts need not agree with

these religious objections, but they must recognize

that they are protected by the First Amendment.

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. Many who had previously not

thought about the religious implications of vaccines,

did so when the COVID vaccine was released. The

fact that a soldier or sailor had received other

vaccines is not a reason to question the sincerity of

an objection to the COVID vaccine.

Petitioners’ 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, Plaintiffs/Appellants' beliefs are religious,

and they sincerely hold them. The very fact that

Plaintiffs/Appellants are willing to jeopardize their

livelihoods, their reputations, and career that they

14

dearly love because of their beliefs, is of itself proof

of her sincerity. Res ipsa loquitur; the thing speaks

for itself. 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.

In many legal contexts, religious liberty is

respected by adjusting standard operating

procedures to accommodations—including legal

concepts such as “reasonable accommodation” and

“least restrictive burden” criteria. In federal

jurisprudence this is not new. If a Congressauthorized law (e.g., statute, agency rule, or military

regulation) fails to fairly accommodate sincerely

held religious beliefs as it restricts religious

freedoms, that law is illegitimate – because the First

15

Amendment does not just favor the “exercise” of

religious freedom, it bans interferences with the

“free exercise” of religion. See, accord, Church of the

Holy Trinity v. United States, 143 U.S. 457 (1892).

In fact, according to Holy Trinity Church (and the

Free Exercise Clause), religious freedom, ab initio,

has not just an equal-priority status, but a superior

place in our constitutional system. Although the

Foundation does not believe that a sincerely-held

religious belief should be infringed for any reason,

the DOD’s actions do not even follow their supposed

argument that there is a compelling reason to

mandate all vaccinations or that less restrictive

means do not exist.

III. Offering exemptions but categorically denying

them is bad faith.

The Air Force and other branches of the armed

forces have established forms and policies for the

granting of religious exemptions from the

vaccination requirement. However, as of January

24, 2022, the Air Force had 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). 5 Subsequently, the Air Force

granted nine religious exemptions, and these were

granted on February 8, 2022, right after the hearing

5 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/ArticleDisplay/Article/2831845/daf-covid-19-statistics-jan-25-2022/

16

in the Air Force Officer v. Austin case, U.S. Dist. Ct.

Middle District of Georgia, Macon Division, Case No.

5-22-cv-0009-TES. Furthermore, in a May 9, 2022

hearing Air Force officials admitted that the nine

exemptions were granted to airmen who were

already leaving the Air Force.6

As of June 27, 2022, the Air Force had

disapproved 9,547 religious exemption requests and

approved 118, with 3,829 pending. 7 Of those 118

approved requests, it is unknown how many were

already leaving the Air Force. As of the same date,

the Air Force had approved 709 medical exemptions

and 979 administrative exemptions.8 Despite the

discrepancies noted in footnote 7 below, it is clear

that the Air Force has disapproved nearly 99% of all

religious exemptions but has liberally granted

medical and administrative exemptions.

It is wrong to deny exemptions to those who have

sincere religious objections to vaccination. But to

offer religious exemptions and create forms and

6 "Report: Air Force Only Granted Religious Vax Exemptions

to Exiting Airmen," Luca Cacciatore, May 10, 2022,

https://www.newsmax.com/newsfront/military-covid-19religious-liberty/2022/05/10/id/1069318/

7 "DAF COVID-19 Statistics - June 2022," Secretary of the Air

Force

Public

Affairs

June

28,

2022,

https://www.af.mil/News/Article-Display/Article/3055214/dafcovid-19-statistics-june-2022/

8 Id. Amici note that these official Air Force statistics seem

inconsistent with those quoted from the same source in its

January 11, 2022 report, which as noted in on p. 15 fin 4

included 1,612 medical exemptions and 2,127 administrative

exemptions. The difference may be that the January report

included the Guard and Reserve.

17

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.

The District Court below confirmed this: “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). 9 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 DOD may argue that that they cannot grant

exemptions because of military necessity. However,

they have freely granted medical exemptions from

the vaccination. DOD has presented no compelling

reason, as required by Fulton v. City of Philadelphia,

141 S. Ct. 1868, 593 U.S. ___ (2020), that they must

deny religious exemptions but may grant medical

exemptions. They have presented no compelling

reason, in fact, no reason whatsoever, that granting

religious exemptions would pose a danger to the

overall health and fitness of military personnel but

granting medical and administrative exemptions

9 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.

18

would pose no such danger. After all, those with

medical exemptions and those with religious

exemptions have this in common – they’re both

unvaccinated.

By granting medical and administrative

exemptions, the military has in effect forfeited any

argument that they must deny all exemptions for

the health and safety of military personnel.

IV.The military’s efforts to remedy the damage to

the chaplains’ lives and careers are inadequate.

When the vaccination mandate was finally

rescinded, the military made token efforts to remedy

the damage to the chaplains’ careers. But these

efforts are woefully inadequate.

Each of the Petitioners has a story to tell, but we

will focus upon that of Petitioner Chaplain Schrader.

Chaplain Schrader received a Letter of Reprimand

(LOR) for his refusal to take the Covid vaccine. In

today’s highly competitive military, an LOR is

harmful to an enlisted person’s career and likely

fatal to an officer’s career. After serving in a certain

rank for a specified number of years, an officer faces

a selection board of officers who review his records

and decide whether he should be promoted to the

next higher rank. Under the “up or out” policy, if he

is not promoted after several considerations, he is

discharged from military service.

Selection boards commonly operate under the

“best qualified” criteria, meaning that if 100

lieutenant colonel slots are available and 200 majors

are being considered, only the 100 “best qualified”

will be selected. A major with an LOR in his records,

19

competing against majors who do not have LORs, is

extremely unlikely to be selected.

An LOR,

therefore, is considered a “career killer.”

On 24 February 2023, the Secretary of the Air

Force issued a memo entitled “Department of the Air

Force (DAF) Guidance on Removal of Adverse

Actions and Handling of Religious Accommodations

Requests,” which stated

Adverse actions removed under the provisions

of this guidance memorandum contained in

Inspector General files pursuant to AFI 90301 will be removed from those files.10

However, the LOR was not removed from

Chaplain Schrader’s selection folder. Rather, the

selection board is advised that the LOR was

rescinded by command and therefore should not be

considered in determining promotion. This is like

instructing a jury not to consider the bloody knife

they saw on the prosecutor’s table. It is unlikely to

eliminate the inflammatory and prejudicial effect.

Furthermore, like other chaplains in this case,

Chaplain Schrader was given a referral

(unfavorable) Officer Performance Report (OPR) for

the period of service in which he received the LOR,

stating that he did not “meet standards” of

“professional qualities” because of his stand against

the vaccination mandate, even though during this

period he had received the 2020 Wing Staff Agencies

10 Secretary of the Air Force Memorandum, Department of the

Air Force (DAF) Guidance on Removal of Adverse Actions and

Handling of Religious Accommodations Requests, 24 Feb 2023.

20

Field Grade Officer of the Year Award, and even

though during this period he had served as the Wing

Chaplain for an Air Expeditionary Wing during a

seven-month deployment to an undisclosed location

in SW Asia. Again, a referral OPR usually sounds

the death-knell for an officer’s promotion (especially

if it is issued shortly before the selection board

meets) and therefore ends an officer’s career.

After the vaccine mandate was rescinded, as a

half-hearted remedy for this injustice, the military

directed that the referral OPR for Chaplain

Schrader (and for others similarly situated) was to

be deleted from his record and replaced with a blank

Letter of Evaluation stating simply “Not rated for

the above period. Evaluation removed by order of

the SECAF.”

This does not come close to remedying the

damage to Chaplain Schrader’s career.

First,

selection boards are composed of experienced officers

who know how the system works. They know that

when an OPR is removed, there has been a problem

with the officer’s career. They do not know what the

problem was, and they may assume it was some kind

of egregious misconduct or malfeasance that was

overturned by some technicality. Second, when a

blank OPR is substituted, the selection board has no

way of knowing of Chaplain Schrader’s outstanding

duty performance, including his Officer of the Year

Award and his service in a challenging assignment.

This obviously adversely affected his chances for

promotion. Third, the selection board is comparing

the officer against other officers who do not have

similar gaps in their records.

21

Selection boards do not give reasons for their

promotion decisions, but it is highly likely that these

illegal actions by the Department of Defense, and

their failure to adequately remedy them,

contributed to the selection board’s decision. If we

may apply the framework of analysis of Price

Waterhouse v. Hopkins, 490 U.S.228 (1989), the

burden is upon the employer, the Department of

Defense, to prove by preponderance of evidence that

these actions did not affect the selection board’s

decisions.

And when Chaplain Schrader finally was

selected for promotion, he was given a line number

of 9, meaning he was not promoted until months

later than he would otherwise have been promoted.

For each of these months, he was paid at the grade

of O-4 (Major) rather than O-5 (Lt. Colonel).

Depending upon his years of service, this could be a

differential of $800 - $1600 per month, 11 thus

satisfying the money damages requirement. See,

Uzuegbunam v. Preczewski, 592 U.S. ___ (2021).

V. The law provides for money damages, but money

damages cannot fully compensate the tarnishing

of a military career.

Those who join the armed forces, especially those

who hope for military careers, do not join the

military for financial reward alone.

This is

especially true of chaplains. They choose the

military chaplaincy with high hopes of serving God

Military

Pay

Chart

2023,

https://militarypay.com/Charts/2023%20Military%20Pay%20

Chart.pdf.

11

22

and country, tackling difficult and challenging

assignments, performing heroic and self-sacrificing

deeds, and serving in positions of high responsibility

and often in interesting and sometimes dangerous

places. The law provides remedies for the ruination

of a military career, but those remedies cannot even

begin to compensate for the dashing of one’s hopes

and dreams.

In retaliation against Chaplain Schrader for his

stand on religious conviction against the vaccination

mandate, he was denied many challenging

assignments that could have prepared him for a

more fulfilling career. He was removed from his

position as Instruction, Course Director, and

Student Mentor as Staff Chaplain and Instructor at

the Air Force Chaplain Corp College. He was denied

the opportunity to represent the Chaplain Corp

College in other capacities; his selection as an

alternate

for

in-residence

Intermediate

Development Education for the Air Command and

Staff College was rescinded, and in many other ways

his career opportunities and chances for further

promotion were damaged.

VI.The military compelled the chaplains to speak

contrary to their convictions in violation of their

First Amendment rights.

Throughout the military, soldiers and sailors

who submit Religious Accommodation Requests

(RARs) have been required to go through an

interview with a military chaplain. Many of the

Petitioners were required to conduct these

interviews (Complaint, paragraphs. 36, 49, 82, 97,

103).

23

One would expect that these chaplains would

conduct these interviews fairly and impartially,

questioning the applicant to ascertain his religious

objections and assess the sincerity thereof.

Instead, many were ordered to “parrot the Army

position on vaccines” and were instructed that their

“responsibility as a chaplain was to assuage any

religious concerns soldiers may have regarding the

vaccine,” and at least one Petitioner “had his

religious objections and those of soldiers he counsels

ridiculed by his commander.” (Complaint,

paragraph 49).

This Court has repeatedly made clear that, just

as the First Amendment Free Speech Clause

guarantees every person’s right to say what he

wants to say, it also guarantees his right not to say

what he doesn’t want to say: West Virginia State

Board of Education v. Barnette, 319 U.S. 624 (1943)

(compelling unwilling students to say Pledge of

Allegiance); Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974) (forcing newspaper to

publish reply of political candidate); Wooley v.

Maynard, 430 U.S. 705 (1977) (forcing Jehovah’s

Witness to display “Live Free or Die” motto on

license plate); National Institute of Family and Life

Advocates, dba NIFLA v. Becerra, 138 S. Ct. 1275

(2018) (forcing crisis pregnancy center to notify

women that California provides free or low-cost

services, and provide phone numbers to call, and

also to notify if clinic is unlicensed).

Forcing a chaplain who believes the vaccine is

dangerous to tell people it is not dangerous,

constitutes compelled speech. Forcing a chaplain

24

who objects to the vaccine because it is made from

stem cell lines from aborted babies, to tell people

that is not a valid objection, constitutes compelled

speech. Forcing a chaplain to argue with a person to

persuade his religious objection is invalid, when in

fact the chaplain believes the objection is valid,

constitutes compelled speech.

When considered alongside the above Supreme

Court precedents, coupled with U.S.C. Sec. 533(b)

which provides “Protection of chaplain decisions

relating to conscience, moral principles, or religious

beliefs” and which specifically protects chaplains

from being required to perform any “rite, ritual, or

ceremony … that is contrary to the conscience, moral

principles, or religious beliefs of the chaplains,” the

DOD has clearly overstepped its bounds and

trampled upon the chaplains’ legal and

constitutional rights.

VII. The military’s repression of the chaplains

infringes not only the chaplains’ constitutional

rights but also those of their denominations

and endorsing agencies.

To serve as a military chaplain, one must meet

certain requirements: completion of a certain level of

theological education (often a Master of Divinity

Degree), two years of post-seminary professional

experience (active duty only), ordination by a

denomination, and endorsement for the chaplaincy

by that denomination. These requirements may

vary somewhat for reserve and guard chaplains.

Each denomination has an endorsing agency or

works through the endorsing agency of another

25

(usually similar) denomination, that endorses

chaplains. The endorsement process varies with

denominations, but many are very rigorous, require

their chaplains to through periodic training, counsel

their chaplains, uphold their chaplains in prayer,

visit their chaplains on-site, and take a strong

interest in their chaplains’ performance of their

missions.

A military chaplain therefore serves and

represents in many different capacities. He is a

commissioned officer of the United States Armed

Forces. He is also a spokesman for his church

denomination, and what he says and does reflects

upon the denomination and upon other chaplains

endorsed by that denomination. And sometimes he

is required to speak with a prophetic voice, speaking

to the higher command what he perceives to be the

voice of God. If a chaplain is having difficulty in the

military, the endorsing agency will be highly

concerned. If they conclude the chaplain is right,

they will stand behind him and back him in every

way they can. If they conclude the chaplain is

wrong, or that the chaplain even if right is

unsuitable for military service, they will sometimes

rescind his endorsement, meaning he may no longer

serve as a military chaplain.

Endorsing agencies become genuinely concerned

when chaplains are forced to violate their religious

convictions. In some cases, these may also be the

convictions of the denomination. In others, such as

vaccination, the denomination may not take a stand

on the issue but may fully support their chaplain’s

right to hold that conviction and act accordingly.

26

CONCLUSION

The Court should grant this Petition for Writ of

Certiorari. As Petitioners have established, the

Fourth Circuit’s decision that this case is moot

conflicts with decisions of other Circuit and District

Court decisions and with decisions of this Court, as

Petitioners have established in their Petition.

Furthermore, this is an especially important case

because it raises key issues of compelled speech, free

exercise of religion, the application of the Religious

Freedom Restoration Act, and the role of chaplains

in the U.S. Military.

People recover from Covid, but their health is

often damaged for the rest of their lives. Likewise,

the pandemic may be over (at least for now), but

these chaplains continue to feel the damage the

DOD policies have caused to their lives and careers.

New pandemics will arise, and these issues will

reassert themselves. Now is the time to establish

landmark decisions that will guide the military and

others, so that in the future we will be prepared to

address these issues in a way that ensures military

readiness but also preserves the rights protected by

the Constitution these chaplains have sworn to

support and defend.

Respectfully submitted,

John A. Eidsmoe*

*Counsel of Record

Talmadge Butts

FOUNDATION FOR MORAL LAW

27

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

talmadge@morallaw.org

Counsel for Amicus Curiae

February 2nd, 2024