Seeking the Role of Military Deference Under the Religious Freedom Restoration Act
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The COVID-19 global pandemic brought unprecedented changes, impacting every aspect of life, and resulting in the death of over a million people in the United States alone. Yet ironically, it was not the disease, but the “cure” that presented an unanticipated crisis for the United States military. As the Department of Defense (DoD) mandated vaccination against the virus, thousands of service members submitted religious accommodation requests to be exempt from the requirement. Almost all were denied, and lawsuits poured in. These lawsuits raised anew important and unanswered questions about how the Military Deference doctrine should apply in balancing religious liberties and concerns about national security. Discussed in more detail below, the Military Deference doctrine generally counsels in favor of courts deferring to military judgments. Although not explicit, Supreme Court precedent imposes a requirement for courts to undertake an analysis for determining whether deference is warranted in a specific case. This article terms this process in the military context the Military Deference Determination Analysis (MDDA). The COVID-19 vaccine litigation pitted two important interests against each other. On the one hand, certain service members asserted the vaccines violated sincerely held and protected religious beliefs. On the other, the United States military asserted vaccination was necessary to ensure a healthy fighting force capable of defending our nation at home and abroad. How the courts analyzed whether they should defer to the military’s judgment played a large, if not often decisive, role in how the courts analyzed the flurry of preliminary injunction motions and litigation that followed. The courts addressing Religious Freedom Restoration Act (RFRA) challenges to the COVID-19 vaccine litigation took different approaches when analyzing Military Deference. In general, the cases fell into three categories
de jure no MDDA cases, de facto no MDDA cases, and MDDA cases. That is, some courts found Military Deference was not permissible at all under the strict scrutiny requirements of Religious Freedom Restoration Act. Others discussed the role of Military Deference in theory but failed to analyze the need for it in practice. Still others embraced the doctrine and the concomitant analysis. The litigation revealed the lack of a coherent understanding by both the military and the judiciary on whether and how courts ought to apply the Military Deference doctrine in the face of religious objections. Using the COVID-19 vaccine litigation as a case study, this article will analyze how the courts have applied the Military Deference doctrine and MDDA in cases where, like the Religious Freedom Restoration Act, the most rigorous standard of review is required (i.e., strict scrutiny). In doing so, it will identify lessons that both the military and courts should learn going forward for the next time military national security needs clash with religious or civil liberties. When properly understood, the Military Deference doctrine orients both the courts and the military as to what is required, how to analyze the evidence, and what to expect. Most importantly, when properly applied, it strikes the appropriate balance between national security, military judgment, and religious liberty.
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