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Horowitz: Kavanaugh deals crushing blow to religious liberty in military

Op-ed
Mohamad Faizal Bin Ramli via Getty Images

One has the right as a convicted murderer to demand his pastor place his hands on his head during the execution, but one does not have the right to object to the religious cult of COVID shots in the military. One can demand gay marriage benefits or transgender surgery in the military but cannot ask for a religious exemption to a poison shot injected into the body. This is the state of the First Amendment and fundamental rights according to Justice Kavanaugh and the 6-3 liberal Supreme Court.

On Friday, March 25, the Supreme Court placed a “partial stay” on a lower court injunction in the case Austin v. U.S. Navy Seals 1-26, which prevented the Navy from taking adverse action against SEALs who filed for religious exemptions from the vaccine mandate. In other words, the careers of these SEALs are now destroyed. The SEALs testified in the Texas federal case that they were being discriminated against for merely filing religious exemptions, and that out of 4,000 filed exemptions, a total of zero were approved.

One thing is clear: Courts have ruled for years that both the First Amendment’s free exercise clause and the Religious Freedom Restoration Act (RFRA) apply to federal workers, including those in the military. Yet Kavanaugh, Barrett, and Roberts, along with the Democratic appointees, have for the past two years consistently turned a blind eye as the government has violated religious and personal liberty in ways that would have shocked us just a few years ago. Now, with the science becoming clear that the vaccines are ineffective against spread of COVID and have serious safety issues, there is no way the government can claim that an ironclad mandate destroying the careers of special operators is the least restrictive means of furthering a compelling governmental interest.

However, that didn’t stop Kavanaugh from reversing a well-articulated injunction from a Texas federal judge and the Fifth Circuit. Thus, not only won’t the three liberal GOP-appointees on the high court intervene when lower courts rule the wrong way, they will even actively reverse good decisions from lower courts protecting liberty. Feigning the judicial minimalist approach, Kavanaugh wrote in a concurrence that “Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.”

That would come as news to thousands of plaintiffs in the military suing all sorts of policies for years. Nothing stopped the Supreme Court from ruling in McLaughlin v. Panetta (2011) that the military must recognize same-sex marriages in terms of financial benefits in the military, even though it was in direct violation of the Defense of Marriage Act. Yet here, Biden can unilaterally make everyone take an idolatrous and dangerous shot without a statute, and suddenly there is no concept of discrimination or religious liberty in the military. Good luck waiting on Kavanaugh to somehow agree one day to overturn McLaughlin.

As Justice Alito pointed out in his dissent, just one day prior, these same justices had no problem applying religious liberty protections to a murderer scheduled for execution in Texas who demanded that his pastor be present in the room to place his hands on his head during the lethal injection process. In Ramirez v. Collier, all the justices but Thomas voted to block the execution of John Ramirez, a convicted murderer from 18 years ago because Texas did not allow the pastor to place his hands on Ramirez’s head. This was done with the understanding that the policy of the Texas prison placed a substantial burden on a sincere religious belief, in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Mind you, Ramirez waited years to assert this supposed “sincere” religious belief in a clear attempt to merely delay the execution. Yet the judges jumped at the opportunity to apply a religious liberty principle. When it comes to our soldiers, however, they can’t even assert the most fundamental rights to not have these SEALs’ religious beliefs be violated on their own bodies in a way that is completely irreversible.

Although the ruling was technically on the injunctive relief stage, Kavanaugh seemed to make it clear that religious liberty does not apply in the context of the vaccine mandate in the military. Plus, the disposition of this case could take years, whereby all these soldiers will have long had their careers destroyed.

It’s truly uncanny how these judges are perfectly fine with inserting themselves into broad political decisions all the time, yet when it comes to the ultimate case of granting relief to those experiencing irreversible and profound personal harms against their most fundamental liberties at the hands of unprecedentedly tyrannical and dangerous government decisions, the courts suddenly become shy.

For years, I have articulated a position in this column that courts do not have the final say over broad public policy decisions. At the same time, someone with an individualized grievance implicating a clear constitutional right affecting his body or speech has the right to seek relief in a court. I could live with a world where the judges shut the door on lawsuits against COVID policies if those same courts would also allow us to live in red states unmolested by lawsuits forcing COVID fascism on us. Yet, these courts are a one-way street with a dead end.

In Virginia, for example, a federal judge ruled the governor cannot ban mask mandates in schools because parents of 12 children in Virginia schools sued to demand that other kids wear masks. So, you don’t have the right to your own bodily autonomy and can’t count on courts to protect you from the executive branch, but when a governor allows you to breathe, then the courts can say that other people have a right to your nose and mouth, even though they themselves are welcome to continue wearing masks and enjoy the amazing protection it supposedly conveys. Don’t count on Kavanagh to rebuke that federal judge for getting involved in a local political decision.

How do I know? In May 2020, Kavanaugh had no problem joining the other liberals in allowing to remain in effect a Ninth Circuit ruling which declared it cruel and unusual punishment to not provide a sex offender in an Idaho prison with access to castration and transgender hormone therapy. A month later, he refused to join Thomas and Alito in overturning a radical Fourth Circuit opinion forcing school districts to allow boys in girls' bathrooms.

In Kavanaugh’s world view, the government is so powerful that it has the right to force you to get an experimental injection that doesn’t work to fight against transmission, but at the same time it does not have a legitimate vital interest in keeping boys out of girls’ bathrooms. Put another way, a person has a legitimate “right” to access the opposite sex’s bathroom, but that same person doesn’t have the right to be secure in his/her body against government coercion. If this is what a conservative court looks like, I’d hate to see what a liberal one is like.

In July 2021, Barrett and Kavanaugh joined with the left and denied an appeal from Barronelle Stutzman, owner of Arlene's Flowers, to assert the private property, free speech, and religious liberty right to decline to service a same-sex ceremony with floral arrangements. So, it’s not just in the military where you have no religious liberty right, but even as a private business. Also, last year the same six justices denied emergency injunctive relief to New York health care workers who were being deprived of religious liberty exemptions to the state’s vaccine mandate.

Thus, it’s quite evident that Kavanaugh doesn’t believe in defending religious liberty anywhere in any context, not just in the military. That is, except for murderers seeking strawmen, speculative, and manipulative religious claims to delay execution at the last minute.

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