Cite as: 595 U. S. ____ (2022) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21A477
_________________
LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE,
ET AL. v. U. S. NAVY SEALS 1–26, ET AL.
ON APPLICATION FOR A PARTIAL STAY
[March 25, 2022]
The application for a partial stay presented to JUSTICE
ALITO and by him referred to the Court is granted. The
district court’s January 3, 2022 order, insofar as it pre-
cludes the Navy from considering respondents’ vaccination
status in making deployment, assignment, and other oper-
ational decisions, is stayed pending disposition of the ap-
peal in the United States Court of Appeals for the Fifth Cir-
cuit and disposition of the petition for a writ of certiorari, if
such writ is timely sought. Should the petition for a writ of
certiorari be denied, this order shall terminate automati-
cally. In the event the petition for a writ of certiorari is
granted, the order shall terminate upon the sending down
of the judgment of this Court.
JUSTICE THOMAS would deny the application for a partial
stay.
JUSTICE KAVANAUGH, concurring.
I concur in the Court’s decision to grant the Government’s
application for a partial stay of the District Court’s prelim-
inary injunction for a simple overarching reason: Under Ar-
ticle II of the Constitution, the President of the United
States, not any federal judge, is the Commander in Chief of
the Armed Forces. In light of that bedrock constitutional
principle, “courts traditionally have been reluctant to in-
trude upon the authority of the Executive in military and
national security affairs.” Department of Navy v. Egan, 484
2 AUSTIN v. U. S. NAVY SEALS 1–26
KAVANAUGH, J., concurring
U. S. 518, 530 (1988). As the Court has long emphasized,
moreover, the “complex, subtle, and professional decisions
as to the composition, training, equipping, and control of a
military force are essentially professional military judg-
ments.” Gilligan v. Morgan, 413 U. S. 1, 10 (1973). There-
fore, it is “difficult to conceive of an area of governmental
activity in which the courts have less competence.” Ibid.
In this case, the District Court, while no doubt well-in-
tentioned, in effect inserted itself into the Navy’s chain of
command, overriding military commanders’ professional
military judgments. The Court relied on the Religious Free-
dom Restoration Act. See 42 U. S. C. §2000bb−1(b). But
even accepting that RFRA applies in this particular mili-
tary context, RFRA does not justify judicial intrusion into
military affairs in this case. That is because the Navy has
an extraordinarily compelling interest in maintaining stra-
tegic and operational control over the assignment and de-
ployment of all Special Warfare personnel—including con-
trol over decisions about military readiness. And no less
restrictive means would satisfy that interest in this context.
The Court “should indulge the widest latitude” to sustain
the President’s “function to command the instruments of
national force, at least when turned against the outside
world for the security of our society.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579, 645 (1952) (Jackson, J.,
concurring). That fundamental principle applies here. As
Admiral William Lescher, Vice Chief of Naval Operations,
explained: “Sending ships into combat without maximizing
the crew’s odds of success, such as would be the case with
ship deficiencies in ordnance, radar, working weapons or
the means to reliably accomplish the mission, is dereliction
of duty. The same applies to ordering unvaccinated person-
nel into an environment in which they endanger their lives,
the lives of others and compromise accomplishment of es-
sential missions.” App. to Application for Partial Stay 110a.
Cite as: 595 U. S. ____ (2022) 3
KAVANAUGH, J., concurring
In sum, I see no basis in this case for employing the judi-
cial power in a manner that military commanders believe
would impair the military of the United States as it defends
the American people.
Cite as: 595 U. S. ____ (2022) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21A477
_________________
LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE,
ET AL. v. U. S. NAVY SEALS 1–26, ET AL.
ON APPLICATION FOR A PARTIAL STAY
[March 25, 2022]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, dis-
senting.
By rubberstamping the Government’s request for what it
calls a “partial stay,” the Court does a great injustice to the
35 respondents—Navy Seals and others in the Naval Spe-
cial Warfare community—who have volunteered to under-
take demanding and hazardous duties to defend our coun-
try. These individuals appear to have been treated shabbily
by the Navy, and the Court brushes all that aside. I would
not do so, and I therefore dissent.
I
In August 2021, the Secretary of the Navy made COVID–
19 vaccination mandatory and threatened severe conse-
quences, including dishonorable discharge and confine-
ment, for anyone who refused.1 Later Navy directives told
service members that they could apply for religious exemp-
tions, see Electronic Case Filing in U. S. Navy Seals 1–26 v.
Biden, No. 4:21–cv–01236 (ND Tex., Jan. 3, 2022) (ECF),
Doc. 44–1, p. 40 (Trident Order #12), but this program, as
——————
1 See Decl. of W. Lescher in No. 4:21–cv–01236 (ND Tex.), ECF Doc. 87,
p. 10 (explaining that the Navy’s vaccination policy was that refusing to
be vaccinated would constitute the refusal to obey “a lawful order under
Article 92 of the Uniform Code of Military Justice,” which is punishable
by dishonorable discharge and confinement for two years).
2 AUSTIN v. U. S. NAVY SEALS 1–26
ALITO, J., dissenting
described by the District Court, was largely “theater” de-
signed to result in the denial of almost all requests. U. S.
Navy Seals 1–26 v. Biden, ___ F. Supp. 3d___ (ND Tex.
2022), App. to Application for Partial Stay 31a (App.).
The exemption procedure that the Navy set up included
no fewer than 50 steps, and during the first 35 steps, none
of the various officials who processed requests gave any con-
sideration to their merit. Decl. of A. Stephens, Exh. 1, ECF
Doc. 62, at 10–26. Instead, a form letter rejecting each re-
quest was prepared and sent to seven offices for review.
App. 40a.2 A package of rejection letters was then assem-
bled, together with a memo asking the vice admiral who
served as a deputy chief of naval operations to sign the re-
jection letters. Ibid. Only at step 35 was someone in this
chain told to read the exemption requests, but it appears
that this individual was not given an opportunity to recom-
mend that a request be granted. See ECF Doc. 62, at 7.
Instead, this person’s sole task was to record pertinent in-
formation on a spreadsheet and send the package on to the
vice admiral. Id., at 7–8.
Given the nature of this procedure, the results it pro-
duced are not surprising. Although more than 4,000 ex-
emption requests had been submitted by February 15,
2022, not a single one had been approved when the com-
plaint in this case was filed. See Application for Partial
Stay 9, and n. 3 (Application) (citing ECF Doc. 129, at 16,
n. 2 (Feb. 23, 2022)).
Respondents are among the many recipients of form re-
jection letters, and according to their declarations and tes-
timony, some of them were told outright that pressing for a
——————
2 Both the District Court and the Court of Appeals concluded based on
the record that the Navy did not have a template for approving an ex-
emption. See U. S. Navy Seals v. Biden, 27 F. 4th 336, ___ (CA5 2022)
(per curiam), App. 6a; id., at 40a. In the Reply filed in this Court, the
Solicitor General claims that there was an approval template, Reply
Brief 12, n. 6, but no such document been supplied to this Court.
Cite as: 595 U. S. ____ (2022) 3
ALITO, J., dissenting
religious exemption would end their naval careers. A re-
spondent identified as Navy Seal 2 stated that a superior
officer advised him that “ ‘all religious accommodation re-
quests will be denied’ ” because “ ‘senior leadership . . . has
no patience or tolerance for service members who refuse
COVID–19 vaccination for religious reasons and want them
out of the SEAL community.’ ” U. S. Navy Seals v. Biden,
27 F. 4th 336, ___ (CA5 2022) (per curiam), App. 9a. This
officer allegedly added that “ ‘even if a legal challenge is
somehow successful, the senior leadership of Naval Special
Warfare will remove [his] special warfare designation.’ ”
Ibid. According to Navy Seal 5, he was told that “ ‘there
[would] be a blanket denial of all religious accommodation
requests regarding COVID–19 vaccination.’ ” Ibid. Navy
Seal 8 declared that his “ ‘chain of command . . . made it
clear that [his] request [would] not be approved and . . . pro-
vided [him] with information on how to prepare for separa-
tion from the U. S. Navy.’ ” Ibid. Navy Seal 11 stated that
a command master chief told him that “ ‘anyone not receiv-
ing the COVID–19 vaccine is an “acceptable loss” to the Na-
val Special Warfare (NSW) community.’ ” Ibid.
Forced to choose between violating their religious beliefs
and the punishment that the Navy threatened, respondents
brought this suit, claiming that the Navy’s denial of their
exemption requests violated the Free Exercise Clause of the
First Amendment and the Religious Freedom Restoration
Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb
et seq. See Complaint in ECF Doc. 1. The District Court
found that these claims were likely to succeed, and it issued
a preliminary injunction prohibiting the Navy from taking
adverse actions against respondents due to their unvac-
cinated status. App. 56a. But the court made clear that its
order did not require the Navy “to make any particular per-
sonnel assignments” and left “[a]ll strategic decisions . . . in
the hands of the Navy.” Id., at 60a.
The Government appealed and asked the U. S. Court of
4 AUSTIN v. U. S. NAVY SEALS 1–26
ALITO, J., dissenting
Appeals for the Fifth Circuit to stay the preliminary injunc-
tion, but the Fifth Circuit refused and issued a detailed
opinion. 27 F. 4th 336.
The Government then applied to this Court for what it
characterizes as a “partial stay,” and the Court now issues
a stay that uses precisely the language that the Govern-
ment proposed. As I will explain, the Court’s order essen-
tially gives the Navy carte blanche to warehouse respond-
ents for the duration of the appellate process, which may
take years. There is no justification for this unexplained
and potentially career-ending disposition.
II
In order to obtain a stay, the Government must show,
among other things, that it is likely to succeed in defeating
respondents’ RFRA and free exercise claims, Hilton v.
Braunskill, 481 U. S. 770, 776 (1987), and it cannot make
that showing.
A
Under the clear terms of RFRA, all components of the
Federal Government are forbidden to burden a person’s ex-
ercise of religion unless the Government can demonstrate
that the burden represents the least restrictive means of
furthering a compelling interest. 42 U. S. C. §2000bb–1(b);
Holt v. Hobbs, 574 U. S. 352, 357 (2015). The Government
does not claim that Article II imperatives absolve the
Navy’s chain of command from complying with RFRA, and
it concedes that the statute applies to the military. Appli-
cation 28 (citing Burwell v. Hobby Lobby Stores, Inc., 573
U. S. 682, 726–727 (2014)). Indeed, even the form disap-
proval letter for religious accommodation requests in the
District Court record explains that RFRA applies to the
Navy, and it is the Navy’s position that “only those interests
of the highest order can overbalance legitimate claims to
the free exercise of religion.” ECF Doc. 62, at 27–28.
Cite as: 595 U. S. ____ (2022) 5
ALITO, J., dissenting
Here, it is not disputed that compliance with the vaccina-
tion requirement would impose a substantial burden on re-
spondents’ free exercise of religion. Therefore, the two re-
maining questions are (1) whether the Navy’s mandatory
vaccination program furthers compelling interests and (2)
whether the denial of respondents’ exemptions represents
the least restrictive means of furthering such interests.
As to the first question, I agree that the Navy has a com-
pelling interest in preventing COVID–19 infection from im-
pairing its ability to carry out its vital responsibilities, as
well as a compelling interest in minimizing any serious
health risk to Navy personnel. But the Navy’s summary
rejection of respondents’ requests for religious exemptions
was by no means the least restrictive means of furthering
those interests. This is so for at least two reasons.
First, all the evidence available at this stage suggests
that the Navy gave no real consideration to respondents’
requests, and the Navy had no compelling need to proceed
in that fashion. I cannot believe that this Court would tol-
erate such treatment in other contexts. Suppose, for exam-
ple, that a federal agency processed employee complaints
about discrimination on the basis of race, sex, or disability
using a 50-step process in which rejection was presumed
until the very last step, and suppose that the record showed
that this procedure nearly always resulted in the denial of
a claim. We would be outraged—and rightfully so. Why,
then, is the Court willing to brush aside what appears to
have occurred here?
Second, even if we ignore what the Navy did and accept
the justification for the denials that Justice Department
lawyers later provided in court, the relief that the Court
now awards goes well beyond anything that can possibly be
regarded as the least restrictive means of further compel-
ling Navy interests. Focusing primarily on the Seals, the
Government stresses certain characteristics of Seal mis-
sions, including small unit size, the frequent need to work
6 AUSTIN v. U. S. NAVY SEALS 1–26
ALITO, J., dissenting
at very close quarters, and the remote and often inaccessi-
ble locations in which such missions are carried out. Due
to those characteristics, the Government argues, there is a
heightened danger that the COVID–19 virus will spread, as
well as a special need to minimize the risk that a mission
will be compromised by a sick team member who is unable
to perform assigned tasks with maximum effectiveness.
In order to win at trial, it would not be enough for the
Government to posit that sending an unvaccinated Seal on
such a mission might produce such consequences. A court
could not simply defer to the Navy’s opinion, and mere “con-
jecture” or “speculation” would not be enough. See Ramirez
v. Collier, 595 U. S. ___, ___–___ (2022) (slip op., at 13–15);
Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (slip op., at
14). The Government would bear the burden of showing
that mandatory vaccination is the least restrictive means of
furthering the interest it asserts in light of the present na-
ture of the pandemic, what is known about the spread of the
virus and the effectiveness of the vaccines, prevalent prac-
tices, and the physical characteristics of Navy Seals and
others in the Special Warfare community.
Whether the Government will be able to make the requi-
site showing remains to be seen, but for the purposes of con-
sidering interim relief that is sought in an emergency ap-
plication, I am willing to accept the Navy’s need to refrain
from sending unvaccinated Seals on the types of missions
the Government has described. But participating in such
missions is not the only thing that respondents do, and the
relief that the Government sought and that the Court now
awards goes much further. Using the terminology selected
by the Government, the Court stays the preliminary injunc-
tion with respect to decisions about “deployment,” “assign-
ment,” and “other operational decisions.”
The Government has not told us what these terms mean,
but without any contrary guidance, we must assume that
they will be interpreted in accordance with the definitions
Cite as: 595 U. S. ____ (2022) 7
ALITO, J., dissenting
in the Department of Defense Dictionary of Military and
Associated Terms (DOD Dictionary).3 And as defined in
that dictionary, the terms seemingly allow the Navy to do
just about anything it wants short of punishing respondents
and drumming them out of the service.
“Deployment” is defined as “[t]he movement of forces into
and out of an operational area,”4 and an “operational area”
seems to mean any “geographic are[a]” where the Navy
might carry out “a strategic, operational, tactical, service,
training, or administrative military mission.”5 Thus, send-
ing a respondent somewhere for training or administrative
purposes may constitute a deployment.
The term “assignment” appears to include detailing an
individual to perform any duties on something more than a
temporary basis.6 And an “operational decision” apparently
can include the carrying out of any “strategic, operational,
tactical, service, training, or administrative military mis-
sion.”7
Putting all this together, it appears that the Court’s order
allows the Navy to use respondents’ unvaccinated status as
a reason for directing them to perform whatever duties or
functions the Navy wants, including sitting alone in a room
——————
3 See DOD Dictionary (Nov. 2021), https://www.jcs.mil/Portals/36/
Documents/Doctrine/pubs/dictionary.pdf.
4 Id., at 62.
5 Id., at 159.
6 The DOD Dictionary does not define “assignment,” but the term “as-
sign” is given this complex definition:
“1. To place units or personnel in an organization where such place-
ment is relatively permanent, and/or where such organization controls
and administers the units or personnel for the primary function, or
greater portion of the functions, of the unit or personnel. 2. To detail in-
dividuals to specific duties or functions where such duties or functions
are primary and/or relatively permanent.” Id., at 20.
7 The specific term “operational decision” is not defined, but the defini-
tion of “operation” includes “the carrying out of a strategic, operational,
tactical, service, training, or administrative military mission.” Id., at
159.
8 AUSTIN v. U. S. NAVY SEALS 1–26
ALITO, J., dissenting
pushing paper or reading manuals for the duration of the
appellate process. It is squarely within the judicial power
of Article III to assess whether the Government has shown
that it has a compelling interest in obtaining this breadth
of equitable relief pending appeal. The Government has not
done so.
I would not rubberstamp the Government’s proposed lan-
guage. While I am not sure that the Navy is entitled to any
relief at this stage, I am also wary, as was the District
Court, about judicial interference with sensitive military
decision making. Granting a substantial measure of defer-
ence to the Navy, I would limit the order to the selection of
the Special Warfare service members who are sent on mis-
sions where there is a special need to minimize the risk that
the illness of a member due to COVID–19 might jeopardize
the success of the mission or the safety of the team mem-
bers. This, I believe, was the aim of the District Court, and
respondents themselves understand the preliminary in-
junction that way. See Response in Opposition 1 (stating
that the injunction “does not require the Navy to deploy any
of the thirty-five plaintiffs” (footnote omitted)).
B
Respondents are also likely to prevail on their claims
under the Free Exercise Clause. Under our case law, if the
Federal Government or a State treats conduct engaged in
for religious reasons less favorably than similar conduct
engaged in for secular reasons, that treatment is
unconstitutional unless the relevant jurisdiction can satisfy
“strict scrutiny,” which is essentially the same as the
standard imposed by RFRA. See Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U. S. 872, 878–879
(1990); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520, 533 (1993).
That “[o]ur review of military regulations challenged on
First Amendment grounds” is deferential does not “render
Cite as: 595 U. S. ____ (2022) 9
ALITO, J., dissenting
entirely nugatory in the military context the guarantees of
the First Amendment.” Goldman v. Weinberger, 475 U. S.
503, 507 (1986). “This Court has never held . . . that mili-
tary personnel are barred from all redress in civilian courts
for constitutional wrongs suffered in the course of military
service.” Chappell v. Wallace, 462 U. S. 296, 304 (1983).
Here, the Navy treated service members who applied for
medical exemptions more favorably than those who sought
religious exemptions. For one thing, requests for medical
exemptions were seriously considered, and quite a few were
granted, at least on a temporary basis. Application 7–8; 27
F. 4th, at ___, App. 20a (“[T]he Navy acknowledges that it
has granted hundreds of medical exemptions from the
COVID–19 vaccine, at least 17 of which were temporary
medical exemptions for those in Naval Special Warfare”).
In addition, service personnel with medical exemptions are
not restricted as severely as respondents will be under the
Court’s order. App. 42a. Indeed, the District Court found
that under Navy policy those participating in clinical trials
and those with medical contraindications and allergies to
vaccines remained deployable, unlike those seeking reli-
gious accommodations. Id., at 50a (citing ECF Doc. 17–2,
at 66). The Navy has no interest in different treatment for
accommodation requests that produce otherwise identical
outcomes. I would therefore specify in the Court’s order
that the Navy must provide equal treatment for all unvac-
cinated service members.
III
Today, the Court brushes aside respondents’ First
Amendment and RFRA rights. But yesterday, the Court
handed down another decision that illustrates the strong
protection for religious liberty that is provided by the
framework that applies under RFRA and strict scrutiny.
The decision in question, Ramirez v. Collier, involved a con-
victed murderer awaiting execution and his rights under
10 AUSTIN v. U. S. NAVY SEALS 1–26
ALITO, J., dissenting
the Religious Land Use and Institutionalized Persons Act
of 2000, 14 Stat. 803, 42 U. S. C. §2000cc et seq., which,
among other things, essentially requires prisons to comply
with the RFRA standard. Ramirez argued that his exercise
of religion will be burdened unless Texas allows his pastor
to lay hands on him and pray aloud while he is being exe-
cuted. Ramirez was less than punctilious and consistent in
requesting a religious accommodation, see Ramirez, 595
U. S., at ___–___ (slip op., at 4–5); id., at ___ (THOMAS, J.,
dissenting) (slip op., at 8), but the Court’s decision forgave
all that. Texas objected to Ramirez’s request on the ground
that the pastor’s conduct might interfere with the execu-
tion, but the Court held that the State failed to discharge
its burden to substantiate the likelihood of such harm. Id.,
at ___ (slip op., at 12).
The contrast between our decision in Ramirez yesterday
and the Court’s treatment of respondents today is striking.
We properly went to some lengths to protect Ramirez’s
rights because that is what the law demands. We should
do no less for respondents.