Back on March 20, we reported on a decision by Judge Steve Merryday of the Federal District Court in Tampa in which he found that the Navy and Marines were wrongfully denying religious exemptions to COVID-19 vaccines. Now, on August 18, this same judge has ruled in another related case, Colonel Financial Management Officer v. Lloyd Austin, Secretary of the Department of Defense (DoD), that the Marine Corps is still denying exemptions in a manner that violates servicemembers’ religious freedom.

0.295% Approval Rate for Religious Exemptions

In Colonel Financial Management the new order both certified, or approved, class-action status and also issued a class-wide preliminary injunction protecting Marines with pending exemption requests. Judge Merryday notes that per DoD records 3,733 Marines have requested a religious accommodation from the COVID-19 vaccines under the Religious Freedom Restoration Act (RFRA). So far, the Corps has only granted 11 accommodations, which is less than 0.295% of the applicants. He also says that the record shows that the only successful requests were from a few folks who were already due to retire shortly.

Denials Issued Regardless of Specific Circumstances

The other 3,700+ applicants “are either denied already or rapidly proceeding to an apparently…inevitable denial, and in either instance are awaiting forced separation from service; regardless of seniority; regardless of specialized skill and training; regardless of depth and breadth of experience; regardless of distinguished service; regardless of the current state of international turbulence and danger; regardless of the place and circumstances of each applicant’s service; and regardless of other considerations (for example, the difficulty in recruiting equivalent replacements).”

RFRA’s Required “To the Person” Consideration Not Given

Noting that not one Marine in continuing service has been granted a religious exemption, Merryday asks: “What to make of that?” Since individualized consideration for exemption is required by RFRA, Merryday posits that any reasonable person looking at the statistics could see that, “this uniform course of rejection is highly unlikely to successfully demonstrate the bona fides of the process that produced this monolithic series of rejections.” Since these applicants were already confirmed in their sincerity by chaplains, it is clear that they were not given a “to the person” evaluations by the Corps as required by the RFRA.

 Denial by Form Letter

When denying the exemption appeals, the Marine Corp used, “an almost identical letter, a template, a form rejection.” These letters invariably find that the required vaccine does not impose a “substantial burden” on the Free Exercise of religion. The boilerplate letters have been used for one Marine who works by himself monitoring social media accounts, one who “works with one individual” in a 1,700 square foot area and whose work can be done remotely, and others whose specific jobs would seem to allow for accommodation. In this context, Judge Merryday found that the individualized consideration required by RFRA was not provided by the Marine Corps. 

“Likelihood of Systemic Failure”

According to Merryday, any “reasonable jurist” would preliminarily conclude that the class of objecting Marines is substantially likely to prevail on their argument that they never received the process demanded by the RFRA. Because the case record shows a “substantial likelihood of systemic failure” in the Marines’ RFRA process, “a classwide preliminary injunction is warranted to preserve the status quo, to permit the full development of the record without prejudice to the plaintiffs, and to permit both a trial and a detailed, fact-based resolution of the controlling issues of fact and law.” Also, the judge notes that this case is a “spin off” from the original case on which he ruled in March, and that the current matter is specific to the Marine Corps only.