Even though moderate Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, Kavanaugh was part of the majority's decision to not interfere in the coronavirus vaccine as a military requirement.
Kavanaugh was quoted in a concordant opinion:
“I agree with the Court's decision to approve the Government's request to stay a portion of the preliminary injunction of the District Court for a very simple and fundamental reason: According to Article II of the Constitution: ‘The president of the United States, not any federal judge has the title of Commander-in-Chief for the Armed Forces.’”
Kavanaugh said that the court “in effect inserted itself into the Navy's chain of command” by stopping the vaccine mandate of the military.
Thirty-five Navy SEALs filed this suit following the administration of President Joe Biden, which ordered the coronavirus vaccination for all members of the military.
U.S. District Judge Reed O'Connor of the Northern District of Texas issued an order that prohibits the Navy from looking into the vaccination status of SEALs in the course of conducting deployments and other assignments, in January.
Biden's administration sought to appeal Judge O'Connor's decision to the U.S. Court of Appeals for the Fifth Circuit, which refused to overrule Judge O'Connor's preliminary order that impeded the military's goal.
The Supreme Court, on Friday, issued an injunction to stay the district court's order that allows the Navy to examine the status of vaccination for deployments, while legal battles over the mandate continue.
The SEALs have claimed that the Navy's vaccine mandate was in violation of the SEALs' First Amendment right to religious freedom. But, Kavanaugh claimed the Religious Freedom Restoration Act “does not justify judicial intrusion into military affairs in this case.”
“I see no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people,” Kavanaugh declared in his decision to disagree.
Justice Alito called the Court's decision “a great injustice” in an opinion that was written by Justice Gorsuch.
Justice Alito wrote:
In approving the government's request for “partial stay,” the Court commits a grave injustice to the 35 respondents –Navy Seals as well as others from the Naval Special Warfare community–who have been enlisted to perform difficult and dangerous duty to protect our country. The individuals seem as if they were treated badly by the Navy and the Court ignores all of that. I wouldn't do that and therefore, I dissent.
Even though the Navy provides religious exemptions to vaccination, Alito echoed Judge O'Connor's views which described the exemptions program in terms of “theater.”
“Later Navy directives told service members they could request religious exemptions … however, this program, according to the Court of Appeals, was largely “theater” designed to result in the denial of almost all requests,” Alito wrote.
As of Wednesday this week, the Navy has only approved nine religious accommodations to Individual Ready Reserve members (who must be fully immunized prior to returning to active duty). Zero religious exemptions were granted of the 3,320 applications to accommodate active duty service members.
The case will continue in the federal court and the process, as Alito said, could be a long time coming. But Kavanaugh's decision to vote with liberal justices is not going to look good and could mean these soldiers will soon be exiled from the military.