Liberty Counsel filed a response to the Department of Defense’s (DOD) motion to dismiss the case involving 15 plaintiffs and members of the class currently serving in the United States Marine Corps who oppose the COVID shot mandate. The DOD has argued that the case should be dismissed now that the DOD has been required to rescind the shot mandate. 

In Colonel Financial Management Officer, United States Marine Corps, et al., v. Lloyd Austin, in his official capacity as Secretary of the United States Department of Defense, et al., Liberty Counsel requests that Judge Merryday deny the DOD’s motion to dismiss and set a trial for prompt adjudication of the plaintiffs’ claims for declaratory relief and a permanent injunction. 

Joe Biden strongly opposed repealing the mandate but had to sign into law the National Defense Authorization Act (NDAA) on December 23, 2022. The Secretary of Defense also opposed rescinding the mandate, but was forced to rescind the August 24, 2021 and November 30, 2021 memoranda mandating that members of the Armed Forces Department of Defense service members and members of the National Guard and the Ready Reserves receive the COVID-19 shot. This action came after thousands of service members have been denied religious accommodation requests (RAR) from the unlawful federal COVID shot mandate. Many service members have been punished, demoted and discharged as a result.

Liberty Counsel argues that the case is not moot because Secretary Austin retains the authority to reinstate a COVID-19 shot mandate at any moment, supports the mandate, refuses to acknowledge that the rubber stamp denials violated the Religious Freedom Restoration Act (RFRA), and has left open the door to reinstate the mandate. In fact, all the NDAA required was that the August 24 memorandum be rescinded. According to his memo, Secretary Austin “will continue to promote and encourage COVID-19 vaccination for all Service members.” In addition, the policy for reviewing and granting religious accommodations clearly violated RFRA and that same policy and practice is not affected by the NDAA. A permanent injunction and declaratory relief is necessary to stop the ongoing violation of RFRA. 

The NDAA and the Secretary’s rescission memorandum do not address adverse consequences, retaliation, or other disciplinary measures beyond separation or discharge. That silence is deafening to the ears of plaintiffs and the class of U.S. Marines who have seen evidence of retaliation since the institution of the COVID shot mandate. The DOD must be permanently enjoined from retaliating against the service members who submitted a request for religious accommodation, and all service members who were punished, demoted or discharged must be reinstated and their records corrected. 

Liberty Counsel Founder and Chairman Mat Staver said, “Repealing the COVID shot mandate for military members does not moot this case. Joe Biden and the Department of Defense continue to argue courts have no jurisdiction over the military, an argument that the courts have soundly rejected. The history of this case clearly demonstrates the open violation of the First Amendment and the Religious Freedom Restoration Act. This lawlessness must end. Our military members who love God and America have been horribly abused and they must be honored again.”