OVER YOUR DEAD BODY: AN ANALYSIS ON REQUESTS FOR RELIGIOUS ACCOMMODATIONS FOR IMMUNIZATIONS AND VACCINATIONS IN THE UNITED STATES AIR FORCE.

• Author: Baker, Christopher J.

1. Introduction II. From Smith to Service Regulations: an Evaluation of the Rules of the Road for Vaccination Accommodation Requests A. Employment Division v. Smith and the Religious Freedom Restoration Act B. Department of Defense Directive Publications III. An Analysis of Vaccination and Immunization Requests under RFRA A. Religious Belief 1. Meyers Discussion on Religious Belief 2. Friedman and Distinguishing between Religion and Philosophy 3. Religious Objection to Vaccination Ingredients B. Sincerely Held Beliefs C. Substantial Burden D. Compelling Governmental Interest 1. Compelling Interests 2. Deference to the Military's Judgment 3. Singh v. McHugh 4. Deference Post-Singh E. Least Restrictive Means 1. Less Restrictive Means 2. Hygiene and Prophylactic Measures 3. Temporary Exemption Subject to Review when Circumstances Change 4. Reassignment 5. Vaccines without Objectionable Ingredients F. COVID-19 IV. A Proposed New Procedural Approach A. Over Your Dead Body: Getting the Steps Right B. Over My Dead Body: A Recommended Statutory Change V. Conclusion I. Introduction

   The commander of an operational squadron is sitting in her office. Her unit's mission is to maintain quality aircrew and aircraft to mobilize, deploy, and provide intra-theater capabilities worldwide for Department of Defense customers. The unit supports theater commanders' requirements with combat-delivery capability.

   An enlisted member who recently reported to the squadron knocks on her door and asks if he can speak with the commander about an issue. The Airman says he would like to request a religious exemption for all vaccinations and immunizations. He says he feels it is up to God whether he lives or dies, and whether he is sick or healthy. He believes receiving vaccinations goes against God's will for him. He says his body is a temple of the Holy Spirit, and vaccinations corrupt the sanctity of the temple.

   Naturally, the commander is concerned. She has no reason to think the Airman is insincere, but she has a worldwide mission to accomplish and readiness requirements to meet. She has been watching the news, and the outbreaks of measles across the country alarms her. The Airman is not currently tasked to deploy, but the unit deploys frequently to austere locations and with little notice. With all the stories in the news about measles outbreaks, she wants to make sure every member of the unit is safe and healthy. Her gut instinct is to deny the request--this is, after all, an issue about safety, readiness, and mission accomplishment. In her mind, this must certainly be the ultimate concern. But she is unsure what to do and what authorities she has, so she tells the Airman she understands his concern and will look into it. Then she calls her judge advocate.

   Unfortunately, the current publications governing religious accommodations to the immunization requirement fail to provide adequate guidance for practitioners to navigate the intricacies between the command's need to accomplish the mission and the member's First Amendment rights. In these and similar situations, particularly now that a vaccine for the novel coronavirus 2019 (COVID-19) has been developed, the Air Force must find a way to accomplish its missions while working within the law to accommodate religious accommodation requests. The Air Force must ensure commanders are armed to address the process of religious accommodation requests. Airmen do not surrender all First Amendment rights when joining the military, but the Air Force has a mission to accomplish and must be able to use all assigned personnel to further that end.

   The current process simply directs the medical community and the unit commander to counsel the applicant on the implications of the accommodation request and send the request to the commander with approval authority, who should receive input from medical, legal and chaplain personnel to make a determination. If the commander denies the request, the applicant then appeals to the Air Force Surgeon General, rather than a commander, for final determination. There is no guidance for those who receive the application to investigate and frame the application for the decision authority. While it is desired and generally necessary to give commanders space and flexibility to command, many difficult First Amendment issues require more guidance to navigate successfully the interplay and tension between the government's compelling interest of mission accomplishment and the Airman's rights.

   A new process must be developed which incorporates advice from military physicians, chaplains, and judge advocates as to the merits of the application and less restrictive means to both maintain the member's health and accomplish the mission. The approval authority should be moved down the chain of command, and a commander, who is ultimately responsible for ordering men and women into harm's way, should be the appeal authority (after receiving input from the subject matter experts).

   Even with an improved process, the Air Force will not sacrifice lethality while accommodating requests for religious accommodations from vaccination requirements. Commanders must have discretion to determine what is necessary to ensure lethality, readiness, and health of their respective units. There are many options commanders can utilize to ensure a lethal force while respecting an Airman's individual religious beliefs. The right option to meet both goals requires a case-by-case analysis that commanders are best positioned to make. However, if a commander decides no accommodation can be made, Airmen refusing to receive required vaccines for religious reasons should be allowed to separate honorably. Creating the option for Airmen to do so requires necessary changes in regulations and the law.

   Part II will briefly explain the origins of the Religious Freedom Restoration Act and the act itself. It then discusses current regulations governing religious accommodation requests in the Air Force.

   Part III will walk through the analysis of such a request as required by the Religious Freedom Restoration Act, thereby providing a framework for a procedural guide for practitioners to use when wading through the delicate nuances of religious accommodation requests to the vaccination requirement. It will discuss courts' traditional deference to military authorities and whether the District Court for the District of Columbia's decision in United States v. Singh has limited the military's ability to deny such a request. While deference must continue to be granted to military authorities, that deference will be framed against the Air Force's assessment of the least restrictive means available to further its compelling interests of mission accomplishment and health and safety of the force. Part III will also provide considerations for requests likely to arise once the COVID-19 vaccine is issued to military members.

   Part IV will briefly provide a proposed new procedural process for vaccination accommodation requests. It will then propose legislation to provide a basis for discharge if the Air Force determines it is unable to accommodate the request.

   The Religious Freedom Restoration Act provides an essential framework to balance military necessity with the First Amendment. Diversity contributes to lethality. Without the Religious Freedom Restoration Act's protections, many commanders will choose not to permit accommodations which have no impact on readiness, lethality, and good order and discipline. If the military were free to stifle religious expressions, many people of faith will choose not to join. [1]

2. From Smith to Service Regulations: an Evaluation of the Rules of the Road for Vaccination Accommodation Requests

   1. Employment Division v. Smith and the Religious Freedom Restoration Act

      All discussions on religious accommodations begin with the 1990 Supreme Court decision of Employment Division v. Smith. [2] The case addressed an Oregon law prohibiting the knowing or intentional possession of a "controlled substance" unless a medical practitioner prescribed the substance. [3] The respondents in the case, both members of a Native American Church, were fired from their jobs with a private drug rehabilitation organization for ingesting peyote for sacramental reasons while off duty as part of a Native American Church ceremony. [4] The respondents then applied to the Oregon Employment Division for unemployment benefits, and their requests were denied because their use of peyote was considered work-related "misconduct." [5]

      The Oregon Court of Appeals and Oregon Supreme Court both determined the denial of benefits violated the respondents' free exercise rights under the First Amendment. [6] On remand, the Oregon Supreme Court clarified that Oregon's controlled substance law did not excuse the sacramental use of peyote, yet maintained that prohibiting its use for sacramental purposes violated the Free Exercise Clause. [7] The United States Supreme Court granted certiorari. [8]

      The U.S. Supreme Court ultimately disagreed that the Free Exercise Clause was violated by punishing the sacramental use of peyote. Justice Scalia, writing for the majority, explained, "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." [9] Since the law was neutral toward religion, the Court declined the respondents' request to apply the compelling interest test. [10] Justice Scalia warned:

      Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S. [599, 606 (1961)], and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. [11] Although the Court...