In an August 9 memorandum, Secretary of Defense Lloyd Austin stated he would be seeking President Joe Biden's approval to make the vaccines mandatory no later than mid-September – or immediately upon the FDA's approval of one of the vaccines. The latter occurred on August 23. Two days later, Austin ordered full vaccination of all members of the military to begin immediately.
First Liberty Institute reports it has recently been "inundated" with requests for legal help about the legality of a COVID-19 vaccine mandate. The legal group also acknowledges that obedience to orders is essential for a functional military – and that with COVID-19, the order to "get the shot" enjoys the presumption of legality. A service member disobeying a lawful order supposedly does so at his or her peril.
Still, according to attorney Mike Berry of First Liberty Institute, a court-martial may not necessarily await service members with a sincere religious objection to these vaccinations.
"The government has an obligation to protect religious freedom for both people serving in uniform and people who are not serving in the military," he explains to American Family News. "But I think it becomes especially important for those who serve in uniform to defend our freedoms that we ensure that they don't lose those same freedoms."
Berry adds that the mere fact there is a pandemic or a Delta variant shouldn't change how the Constitution applies.
"… If it wants to force somebody against their religious convictions to get a vaccine, then the government is going to have to meet a pretty high legal standard in order to do that – and I suspect that in a court of law, they're not going to be able to do that," he states.
First Liberty argues that the DoD's only option when a religious objection is cited to a mandatory vaccination is to prove that ordering the shots is the method least restrictive to the service member's religious exercise – and that's a "high burden," the legal group says.
Approximately 80% of the 1.3 million on active duty are fully vaccinated, according to the Department of Defense – leaving about a quarter-million service members unvaccinated.