RFRA in the Military on the Shadow Docket -- With a Tangent on Trump v Hawaii

 by Michael C. Dorf

Last week, in Austin v. US Navy Seals 1-26, SCOTUS stayed a federal district court order that had barred the Navy from considering the "respondents' vaccination status in making deployment, assignment, and other operational decisions." It was a rare shadow docket case in which the Court chose to intervene against religious claimants and in favor of the government's assertion of public health interests. The very brief per curiam does not provide reasons and leaves open further consideration on the merits of the certiorari docket, but even at this stage, a concurrence and a dissent raise interesting questions.

The majority comprised the Democratic appointees and what we might describe (recognizing that these descriptions are all relative) as the "moderate" conservatives: Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Kavanaugh also wrote a concurrence in which he spoke only for himself. Justice Alito wrote a dissent in which Justice Gorsuch joined. Justice Thomas dissented without opinion, but I suspect he would have joined Justice Alito's dissent were he not hospitalized last week.

Here I'll make a point about an interesting question about the Religious Freedom Restoration Act (RFRA) raised by the Kavanaugh concurrence. I'll then turn to a tension between the Alito dissent and the opinion he and Justice Gorsuch both joined in Trump v. Hawaii, the travel ban case.

The Navy requires personnel to be vaccinated against various diseases including, since the COVID vaccines received full FDA approval, COVID. The plaintiffs say the policy violates their religious freedom under RFRA. As a preliminary matter, does it apply?

Justice Alito says in dissent that the government conceded that RFRA applies to the military. There's certainly nothing in the text of RFRA or anything else to suggest otherwise. Interestingly, however, Justice Kavanaugh indicates that perhaps it does not. He treats RFRA's applicability as an arguendo assumption: "even accepting that RFRA applies in this particular military context," Justice Kavanaugh says, he sides with the government. Depending on whether four additional justices agree and should the government not make the same concession in a future case, it thus seems possible that the Court could hold that RFRA doesn't apply to the military at all or, as suggested by Justice Kavanaugh's reference to "this particular military context," doesn't apply to some military contexts.

Getting to that result, however, is a substantial challenge, because RFRA states what looks like a categorical exception to all federal laws and policies. Here's the operative text of RFRA:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

A further provision states the broad scope of RFRA: It "applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993." But of course, as a statute, RFRA can be superseded by a subsequent statute, so Congress could expressly or implicitly repeal that language in part by providing a carve-out for some or all laws and policies concerning the military. To date, however, Congress has not done so, and therefore it's hard to see how one could make an argument, consistent with the statutory text, for a categorical carve-out for some or all military policies.

Yet to say that RFRA applies to the military is not to say how it applies. And that's where the Kavanaugh concurrence comes in. He says 

the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.

Taken at face value, Justice Kavanaugh is saying that the Navy has met the same burden that any governmental agency must meet under RFRA. But other statements in the Kavanaugh concurrence suggest that he reaches this conclusion because he is applying the compelling interest and least restrictive means test in a manner that is deferential to the government, citing precedents that emphasize the limited role of the judiciary in scrutinizing military decisions.

Is deference to the military in the application of RFRA appropriate? At least one SCOTUS decision suggests perhaps not. In Holt v. Hobbs, the Court considered the application of the Religious Land Use and Institutionalized Persons Act (RLUIPA) to a claim by a prisoner who had religious grounds for growing a beard in violation of an Arkansas Dept of Corrections grooming policy. The Eighth Circuit rejected the RLUIPA claim. Citing pre-RLUIPA free exercise cases, the lower courts gave considerable deference to the prison authorities. SCOTUS unanimously reversed on the ground that RLUIPA "provides greater protection" to religious liberty than recognized in the free exercise precedents.

The Court in Holt called RFRA and RLUIPA "sister statutes." And if RLUIPA does not preserve the deference afforded prison officials as a matter of free exercise jurisprudence, one might assume that therefore neither does RFRA preserve the deference afforded the military as a matter of free exercise. So Justice Kavanaugh is on shaky ground in wanting to apply RFRA deferentially in the military context, right?

Maybe not. The deference afforded prison officials in the free exercise cases can be understood as flowing from principles of comity and the Court's sense of its own limited expertise. The latter factor is clearly present in a case involving the military but so is a further one to which Justice Kavanaugh's concurrence gestures: separation of powers. Perhaps non-deferential application of RFRA's compelling-interest and least-restrictive-means tests would usurp the president's power as commander in chief. If so, we might think that at least principles of constitutional avoidance support Justice Kavanaugh's construction of RFRA to allow deference to the executive over military matters. That principle could distinguish Holt (which Justice Alito cites in dissent but Justice Kavanaugh doesn't mention). Should the issue return to the Court on the plenary docket, one would hope for more thorough treatment of the question.

Before concluding, I want to add a few words about the dissent. Justice Alito concedes that the Navy has a compelling interest in combating COVID among its personnel but concludes that the failure to grant religious exemptions to unvaccinated Seals is not the least restrictive means of furthering that interest for essentially three reasons. First, the Navy does grant medical exemptions, so, Alito says, the failure to grant religious ones shows that the Navy can deploy unvaccinated Seals. (This difference also leads the dissenters to say that the policy likely violates the First Amendment as religious discrimination.) Second, although Justice Alito also concedes that there are some missions in remote locales where Seals live in close quarters from which unvaccinated Seals could be excluded, he suggests that there are other assignments that could be given Seals, so the failure to give them those other assignments means there isn't narrow tailoring.

I don't have anything to offer right now about those two grounds, so I'll move to the third. Justice Alito says that the Navy has an internal policy for considering religious exemptions, but it's a sham, involving 50 steps and ultimately futile, as it has resulted in no one getting an exemption. Of course, if the Navy is justified in not giving religious exemptions from the vaccination requirement, then it wouldn't matter if there were a million steps, so this third point probably should be seen as parasitic on one or both of the other two. I take Justice Alito to be saying that the Navy can't successfully defend by saying it in fact does grant exemptions, when it doesn't really. If so, then if I were persuaded by one or both of the first two narrow tailoring points (and if I were also persuaded that the Seals really do have genuine religious objections to COVID vaccination), then I would agree that a sham process doesn't do the trick.

My observation is simply that I wish Justices Alito and Gorsuch--who both joined the majority in Trump v. Hawaii--had been equally attentive to sham processes there too. As Justice Breyer documented in dissent, the program for granting hardship waivers and exemptions from the travel ban resulted in a "minuscule percentage" of eligible applicants for admission to the U.S. actually being granted permission.

Does that mean that there's no way to reconcile the Alito/Gorsuch position in the Navy Seals case with the majority they joined in Trump v. Hawaii? Not necessarily, but the obvious tension cries out for some attention. After all, one would think that the exclusion of infants and the infirm because they happen to come from Muslim-majority countries under a policy that is the lineal descendant of a president's repeated bigoted claims would be the more obvious contender for the conclusion that the government was engaged in religious discrimination while using national security as a pretext--not a requirement that all service members get vaccinated during a pandemic that has already killed close to a million Americans. Just saying.