A new amicus brief was filed against the Pentagon in a lawsuit for denying nearly all religious exemptions under the coronavirus vaccine mandate. The U.S. government is accused of failing to provide current evidence that proves “long-term efficacy”
The amicus brief was filed by Schaerr Jaffe, a powerful D.C. law firm, in the United States Court of Appeals for Eleventh Circuit on Wednesday. The brief requests that the court uphold the decision of the Middle District of Florida which issued an injunction prohibiting the Marine Corps from violating or discharging Marines who have religious exemptions been denied.
Ken Blackwell, Senior Fellow for Human Rights and Constitutional Governance at Family Research Council stated:
FRC is proud to support these Marines in their fight for religious freedom in the military. We hope this contribution will educate the public about the First Amendment as well as COVID-19 so that Americans can be better informed about how to protect public health and the fundamental rights guaranteed in the Constitution.
According to the brief, the Department of Defense is required to demonstrate that the requirement for a one-time COVID-19 vaccination furthers the Nation’s compelling interest in military capability and that it has “long-term efficacy” if it continues stifling religious liberty of troops by denying exemptions.
The brief states that instead of making the required factual showing, “the Department chants the phrase “narrowly tailored” in a talismanic manner, as though saying the words would suffice to satisfy the requirement.” This is strict scrutiny and not an incantation. The precedent from this Court and the Supreme Court both show that the Department must prove its long-term effectiveness in achieving a compelling government interest to be able to carry its burden.
According to the brief, the original vaccines as well as “even updated vaccinations or boosters that were supposed to protect Omicron” are ineffective against Omicron’s newer subvariants. These subvariants are responsible for most of the infections.
“This rapidly changing target continues to outpace attempts to update vaccines in response to the current threat. The Department has not provided evidence to the contrary. Accordingly, the current Vaccine Mandat cannot stop the spread COVID-19,” states the brief. The Centers for Disease Control and Prevention (CDC) admits that vaccines don’t stop the transmission of the virus.
In the brief, the Department of Defense is accused of using vaccine data dating back to February 2022 in order to justify its mandate. The brief calls the data “ancient and largely irrelevant” due the rapid-evolving nature of this disease.
Here’s the short version:
This evidence is not sufficient to prove what the Department claims they have provided. This is because the data submitted do not track vaccine effectiveness against subvariants that make up almost all of the current threat. They also do not track long-term effectiveness months later after vaccination has ended.
Further, the brief argues that the Department of Defense failed to recognize that “newer variants of COVID-19 can often be less dangerous” and that studies have shown that young military personnel are not at high risk of contracting serious illness.
This is due to the Department’s well-documented recruitment challenges. The brief states that the Army fell 15,000 short in September of its recruitment goal, which is a full 25% of what the Pentagon wanted. This despite a frenetic effort to make up the difference.
This brief explains that President Joe Biden recently declared “the pandemic over,” and that Secretary of Defense Lloyd Austin ordered military commanders to “stand down” for a period of 60 days so they could “ride our ranks of racists, extremists”, and that Biden claimed that “MAGA Republicans” represent “an extremism which threatens the very foundations our republic.”
“Does this imply that the ‘extremists’ Secretary of Defense called enemies are part of a group the Commander in Chief said threatens the Nation’s foundations?” “One would hope not be included among such a group,” this brief pose.
“In summary, does the Department consider religious opposition to COVID-19 vaccinations to be a proxy of something it views as violent conservative worldview and therefore is using opposition to vaccines to identify people it believes are extremists?” The brief further questions.
These troubling questions are not to be answered, but they do matter when trying to determine if the mandate for vaccines is motivated by religious animus. This would also render it ineligible under the Free Exercise Clause.
“Amici hope that all of those questions can be answered in a positive manner,” the brief states. These answers are not necessary here, as the Vaccine Mandate does not have a narrow application in any case,” the brief states.
The short conclusion is:
No “good intentions” nor “best efforts” are allowed to escape strict scrutiny. The interests must be compelling. The means must be narrowly tailored. A mandate from the government that triggers strict scrutiny must be in the best interest of the government. It is illegal to issue a mandate that does not meaningfully advance the public interest, or worse, that actually crosses-purposes with it, as in this case.
Breitbart News attempted to reach the Pentagon for comment, but was not able to get a reply by the time this article was published.
Captain v. Secretary of Defense of the United States, No. 22-12029 in the United States Court of Appeals, Eleventh Circuit.