Navy SEAL commander challenges Pentagon: Recommends religious vax exemption, cites retention challenges

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EXCLUSIVE: A Navy SEAL commander is challenging Secretary of Defense Lloyd Austin by recommending the approval of a service member's request for a religious exemption to the Biden administration's COVID-19 military vaccine mandate.

According to a filing Monday in the 5th Circuit Court of Appeals first obtained by Fox News Digital, the commander of a Naval Special Warfare Group says he believes the law requires the Navy to approve the SEAL's accommodation request and states that denying these requests is having a detrimental effect on military recruiting and retention.

"In analyzing the Navy’s asserted compelling interests, the Commander concludes no such compelling interest exists when SWCC 3’s age, fitness, and medical history is considered alongside the marginal benefit of the vaccine to protect individuals against the Omicron variant of the virus, which now accounts for most COVID-19 infections," said the filing by Heather Gebelin Hacker, counsel for the plaintiffs.

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Secretary of Defense Lloyd Austin (Alex Wong/Getty Images)

This is the first known recommended approval by a senior military official and directly pits the commander against Secretary Austin. According to attorney representing the plaintiffs, the Chief of Naval Operations will now have to decide whether to reject the vaccine mandate policy being pushed by the Biden administration or the recommendation of the commander.

"Indeed, according to the Commander, enforcing the mandate will result in the loss of personnel necessary for accomplishing the Commander’s mission. This endorsement further illustrates that the Navy has failed to satisfy RFRA’s rigorous standard," the filing said.

The commander writes in his recommendation for exemption: "My force, the Naval Special Warfare Reserve Component, is grappling with retention challenges due in part to the manner in which religious accommodation requests like that from [SWCC 3] have thus far been processed and adjudicated by the Navy. For mission-related reasons subsequently discussed, I cannot afford to lose more quality Sailors."

"The Navy does not comment on ongoing litigation," a spokesperson told Fox News Digital, while referring inquires to the Department of Justice.

The Religious Freedom Restoration Act, or RFRA, is at the center of an ongoing lawsuit brought by First Liberty Institute and Hacker Stephens LLP on behalf of 35 active-duty SEALs and three reservists seeking a religious exemption to the mandate.

"As Justice [Brett] Kavanaugh said, the commanders on the ground know best when it comes to maintaining combat readiness," said First Liberty's senior counsel Michael Berry, referring to a March opinion from the justice in an emergency filing in the SEALs' case that is still pending in the 5th Circuit. "In this case, a Navy SEAL commander with decades of experience says kicking out his troops hurts our military worse than COVID ever could. America is now learning that the Pentagon bureaucrats are wildly out of touch with reality."

The filing is part of an ongoing lawsuit brought by First Liberty Institute and Hacker Stephens LLP on behalf of 35 active-duty SEALs and three reservists seeking a religious exemption to the mandate. (AP Photo/Susan Walsh)

The filing also mentions a decision in the 6th Circuit Court of Appeal last week that upheld an injunction protecting unvaccinated Air Force service members from being punished or involuntarily terminated from the military due to religious objections to the COVID-19 vaccine mandate.

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"The Sixth Circuit noted that the Air Force (like the Navy here) asked it ‘to read RFRA as if it simply codified the ‘great deference’ that the Supreme Court had previously given to the military under the Free Exercise Clause. . . . We see no textual path to that result,’" the filing said.

Defense Secretary Lloyd Austin speaks during a briefing at the Pentagon in Washington, Thursday, Oct. 27, 2022. (AP Photo/Susan Walsh)

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The appeals court said in its Tuesday opinion that the Air Force "wrongly relied on its ‘broadly formulated’ reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues."