Two days before Christmas, President Joe Biden signed the Fiscal 2023 National Defense Authorization Act (NDAA) into law, giving the Secretary of Defense 30 days to rescind the Department of Defense's (DOD) COVID-19 military vaccine mandate. On January 10, 2023, Defense Secretary Lloyd Austin officially rescinded the COVID-19 mandate for all service members to include active, guard, and reserve.
In his order, Secretary Austin stopped all separations based on a service member's request for religious, medical, and administrative accommodation; and directed removal of any adverse actions from service member records (including letters of reprimand) that were based solely on the denials of such requests. Austin also stopped the accommodation review process for all religious accommodation requests and appeals of those requests.
American Family News spoke to attorney Aaron Siri, who suspects that the services will continue to retaliate against those service members who requested a religious accommodation from the mandate while it was being enforced by the DOD.
"As of now, there is no indication the military will cease their discrimination of those who requested religious accommodations," Siri explains. "[In fact,] Secretary Austin specifically states in his January 10 order that commanders could continue to use a service member's vaccination status when making deployment, assignment, and other operational decisions."
As a result, the attorney is convinced the discrimination will continue – even though, in his opinion, service members who opposed the military's vaccine mandate acted appropriately.
"Many of these service members have deeply held convictions that abortion is murder and refuse to partake in any product involved with abortion," Siri tells AFN. "All of the currently available COVID-19 vaccines in the United States have had some involvement with aborted fetal material or cell lines or strains from fetal material."
Consequently, he says, "[many service members] will not violate their sincerely held religious beliefs no matter what the cost." And those costs can be steep.
For example, Capt. Daniel Cotton, a T-38 instructor pilot in the U.S. Air Force, refused the COVID-19 shots because of his sincerely held religious beliefs – and has been sidelined for several months due to his inability to get any of the currently available vaccinations. He was suspended from flying duties and flight pay on May 9, 2022.
"For the past eight months," Siri says, "Cotton has been assigned to work at a desk doing administrative tasks for the student squadron while his peers fly multiple times a day to try and keep up with the student pilot training pipeline."
Despite the recent COVID-19 vaccine recission by Secretary Austin, Siri doesn't believe Cotton's career is "recoverable" at this point. While being punished, the instructor pilot hasn't been allowed to perform any duties that would further his career, he points out.
"Even if the Air Force removes the negative paperwork from my file, or lets me fly," Cotton admits, "there is no way to make up for lost opportunities and fix the backlash I have received for my religious beliefs."
At the same time, Siri argues, the available vaccines did not, nor do they, prevent a service member from becoming infected or transmitting the virus.
"Sadly," he notes, "the military's wishful thinking about these products is not without its consequences." He points to the DOD's move of "taking action to separate the extremely small percentage of dedicated members of the branches who have not taken this vaccine." For him, it was "nonsensical" and strongly indicates that "the mandate was never about health or readiness."
Siri also points out that the "CDC's V-safe reported that among its over 10 million users, approximately 32 percent of individuals receiving the COVID-19 vaccine could not perform normal daily functions, had to miss school or work, or needed medical care" after receiving the COVID-19 vaccination. Since the military can no longer argue that the shots are for the purpose of preventing transmission, he says, "it must be arguing that they are needed to prevent illness that would prevent members from carrying out their duties."
"But based on the data available to us," Siri counters, "it is highly unlikely that infection with SARS-CoV-2 would affect that percentage of service members [and prevent them] from being able to perform their duties."
Defending the Constitution
While the vaccine mandate has been rescinded, Siri remains concerned. "The military believes that they can still discriminate against those service members with sincerely held religious beliefs when making assignment and deployment decisions," he states.
However, federal law and the Constitution say different, he adds.
"Given this," Siri says, "they stand strong and fight for their own and for all of our rights to freely practice religion, having sworn an oath to support and defend the Constitution, even to the point of death if it's required."
"Service members are not only fighting to defend the Constitution from those abroad but, in this case, from those domestic," he argues. "Their own military leadership has forgotten the importance of defending the Constitution and the first freedom [of religion] thereunder."
"The military has used intimidation and coercive tactics to get these service members to violate their conscience and constitutionally protected rights," Siri points out. "Now, it is up to us to continue to fight for those who would lay down their lives to support and defend the same Constitution that they are now being deprived of protection from, [and] this fight will continue until the military services are held to account for their illegal transgressions against its own."
As the Honorable Judge McFarland said in Doster v. Kendall: "This case presents the constitutional collision of brave men and women serving in the Air Force sincerely trying to exercise their religious beliefs and their esteemed superiors who have loaded their weapons against them."
Editor's note: Capt. Daniel Cotton emphasized that his views do not reflect those of the Department of Defense or the Department of the Air Force.
