Doster v. Kendall
| Decision Date | 31 March 2022 |
| Docket Number | Case No. 1:22-cv-84 |
| Parties | Hunter DOSTER, et al., Plaintiffs, v. Hon. Frank KENDALL, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Christopher David Wiest, Crestview Hills, KY, Thomas B. Bruns, Bruns, Connell, Vollmar & Armstrong, LLC, Cincinnati, OH, Aaron Siri, Elizabeth Ann Brehm, Pro Hac Vice, Siri & Glimstad LLP, New York, NY, Wendy Cox, Pro Hac Vice, New Braunfels, TX, for Plaintiffs.
Andrew Evan Carmichael, Zach A. Avallone, Cassie Snyder, Catherine Yang, Courtney Danielle Enlow, DOJ-Civ, Civil Division, Federal Programs Branch, Washington, DC, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND ISSUING A PRELIMINARY INJUNCTION
This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction (Doc. 13). Defendants filed a response in opposition to Plaintiffs’ Motion (Doc. 27), to which Plaintiffs replied (Doc. 30). Additionally, the Court held a preliminary injunction hearing on March 25, 2022. Thus, the motion is fully briefed and ripe for review. As explained below, Plaintiffs’ Motion for a Preliminary Injunction is GRANTED IN PART and DENIED IN PART .
Town of Greece, N.Y. v. Galloway , 572 U.S. 565, 615, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014) (Kagan, J., dissenting). That momentous offering clearly is in great peril as to Plaintiffs herein.
The world as we knew it changed in March of 2020 with COVID-19's inception and the shutdown of most of the world. While a return to normalcy is desired, the cost of the return should never jeopardize religious liberty. As justice Gorsuch recently explained, "Even if the Constitution has taken a holiday during the pandemic, it cannot become a sabbatical." Roman Cath. Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 70, 208 L.Ed.2d 206 (2020) (Gorsuch, J., concurring). In this Court's opinion, assuming the Constitution has taken a holiday, the holiday is long over, and it needs to get back to work, NOW.
From the time our Founding Fathers signed the Declaration of Independence and, later, the United States Constitution, United States citizens have been provided with the freedom to practice their religious beliefs as they deem fit. Religious liberty was just as important to those who founded this nation as it is today. As John Adams said, "[n]othing is more dreaded than the national government meddling with religion." John Adams, From John Adams to Benjamin Rush, 12 June 1812 , National Archives: Founders Online, https://founders.archives.gov/documents/Adams/99-02-02-5807 (last viewed Mar. 28, 2022). And, as James Madison explained, "[t]he Religion then of every man must be left to the conviction and conscience of every man: and it is the right of every man to exercise it as these may dictate." James Madison, Memorial and Remonstrance Against Religious Assessment, [CA. 20 June] 1785 , National Archives: Founders Online, https://founders.archives.gov/documents/Madison/01-08-02-0163 (last visited Mar. 28, 2022).1
1004Since December 15, 1791, when the Bill of Rights was ratified, the Free Exercise Clause of the First Amendment has been a safe haven for this country's religious liberty. "Congress shall make no law respecting an establishment or religion, or prohibiting the free exercise thereof ...." U.S. Const. amend. I. It has been this way since the beginning of the Nation—even, critically, in the context of military conscription. Consider our own history. In the Colonies, service in the militia was required of able-bodied young men. Fulton v. City of Philadelphia , ––– U.S. ––––, 141 S. Ct. 1868, 1905-06, 210 L.Ed.2d 137 (2021) (Alito, J., concurring). But Quakers, Mennonites, and other religious groups objected to militia service based on their religious convictions. Conscription would do "violence to their consciences." Id. at 1906. Of course, being a new Nation, we were often "desperately in need of soldiers." Id. at 1906. Indeed, "the very survival of the new Nation often seemed in danger." Id. The stakes were high. Members of Congress faced "bleak personal prospects if the war was lost." Id. But that did not stop the early Continental Congress from granting religious accommodations. Id.
And the Free Exercise Clause has withstood the test of time. In 1963, Justice Clark wrote, Sch. Dist. of Abington Twp., Pa. v. Schempp , 374 U.S. 203, 222-23, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).
In fact, the Religious Freedom Restoration Act ("RFRA") was enacted in 1993 to further protect United States citizens’ right to religious liberty. Under the RFRA, "Government shall not substantially burden a person's exercise of religion even if the burden results of general applicability ..." 42 U.S.C. § 2000bb-1. For when the government saddles an individual with a disadvantage "solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax." Locke v. Davey , 540 U.S. 712, 727, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (Scalia, J., dissenting).
Sadly, religious liberty has been called into question time and time again throughout our nation's history.2 Recently, now District of Columbia Circuit Judge Justin R. Walker noted, "the Free Exercise Clause remains a too-often tested bulwark against discrimination toward people of faith, from religious cakemakers to religious preschoolers." On Fire Christian Ctr., Inc. v. Fischer , 453 F. Supp. 3d 901, 907 (W.D. Ky. 2020). However, the importance of religious liberty cannot be understated:
That's because, as de Tocqueville wrote, religion, which among the Americans never directly takes part in the government of society, must be considered as the first of their political institutions; for if it does not give them the taste of liberty, it singularly facilitates the use of it.
Id. (quotations omitted).
Now, in front of the backdrop of this country's emphatic protection of religious liberty, this Court is faced with the specific instances before it.
This action involves eighteen active duty and active reservist Airmen stationed across the United States at Wright-Patterson Air Force Base, Ohio; Hulburt Field, Florida; Randolph Air Force Base and Dobbins Air Reserve Base, Georgia; and March Air Reserve Base, Riverside County, California ("Plaintiffs"). These Plaintiffs seek injunctive relief from being required by the Air Force to receive the COVID-19 vaccines in violation of their sincerely held religious beliefs and despite having applied for religious exemptions from the vaccine. Plaintiffs bring this action against numerous Air Force officials, including the Secretary and Surgeon General of the Air Force, claiming statutory and constitutional violations of their rights to free exercise of religion.
On August 24, 2021, almost 18 months after the beginning of the COVID-19 pandemic and approximately 12 months after the vaccines had been available to the public, "the Secretary of Defense issued a mandate for all members of the Armed Forces under the Department of Defense authority on active duty or in the Ready Reserve, including the National Guard, to immediately begin full vaccination
against COVID-19." (Memorandum for Department of the Air Force Commanders, 3 Sept. 2021, Plaintiffs PI Hearing Ex. 2.) The COVID-19 vaccination mandate, however, allows for medical, administrative, and religious exemptions. (COVID-19 Mandatory Vaccination Implementation Guidance for Service Members, Doc. 27-7, Pg. ID 1676-47, 1649.) The mandate also provides that, (Memorandum for Department of the Air Force Commanders 3 Sept. 2021, Plaintiffs PI Hearing Ex. 2.)
The Air Force sent a Memorandum relating to vaccination
exemptions to Airmen on December 7, 2021. (Supplemental Coronavirus Disease 2019 Vaccination Policy, Doc. 27-8, Pg. ID 1656-67). This Memorandum provided that:
Commanders will take appropriate administrative and disciplinary actions consistent with federal law and Department of the Air Force (DAF) policy in addressing service members who refuse to obey a lawful order to receive the COVID-19 vaccine and do not have a pending separation or retirement, or medical, religious or administrative exemption. Refusal to comply with the vaccination
mandate without an exemption will result in the member being subject to initiation of administrative discharge proceedings.
(Id. at Pg. ID 1656.)
The Memorandum continued:
Regular service members who continue to refuse to obey a lawful order to receive the COVID-19 vaccine after their exemption request or final appeal has been denied or retirement/separation has not been approved will be subject to initiation of administrative discharge. Discharge characterization will be governed by the applicable Department of the Air Force Instructions. Service members separated due to refusal of the COVID-19 vaccine will not be eligible for involuntary separation pay and will be subject to recoupment of any unearned special or incentive pays.
(Id. at Pg. ID 1657.)
Lastly, regarding unvaccinated reservists, the Memorandum provides:
Unvaccinated members who request a medical...
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