The Wrong Revealed
Military leaders must learn the right lessons from the Covid-19 vaccine mandate debacle.
Covid-19 is no longer a threat to national security. And, contrary to prior opinions, neither are the thousands of military members who pursued religious accommodation to the vaccine mandate.
In the nearly four months since the end of the mandate, we have not observed senior officers testifying before the House Armed Services Committee that the mandate must be resumed because the mission and cohesion of the force is suffering. We have not seen a ground swell of commanders lamenting the additional efforts they must take to ensure readiness because those remaining unvaccinated service members are wreaking havoc on their units. We have not seen letters to Congressmen from service members recounting the harms they endure because of their unvaccinated peers.
Quite the opposite has occurred. There has been a kind of collective sigh of relief across the force because the administrative and social burden of the largely unnecessary discharge process that unvaccinated service members underwent or awaited is now obsolete. Additionally, those who were previously flagged for discharge have largely gone back to their normal duties—accomplishing, not hindering, the mission.
All of this demonstrates that denying the unvaccinated service members’ religious accommodation requests and staging their discharge was not the right decision for the force. While I believe there were sound arguments against the military’s Covid vaccine mandate in the first place, my argument here is narrower. Based on the evidence we have, it is clear commanders should have approved religious accommodation requests in many, many more cases than they did. It was their responsibility to do so, as there were reasons to question whether the vaccine should be prioritized over fundamental constitutional rights.
When Secretary of Defense Lloyd Austin ordered the services to ensure all serving military members receive a Covid-19 vaccine, military members had a few options: comply, resist, or apply for separation or accommodation. The vast majority complied. Some resisted. Many left the service or sought accommodation.
Those who sought religious accommodation did so with the protection of the First Amendment and the Religious Freedom Restoration Act (RFRA). The policies that enforce RFRA and the First Amendment require senior military commanders to approve each sincere request for religious accommodation, “unless the request would have a real (not theoretical) adverse impact on military readiness, unit cohesion, good order, discipline, health or safety.”
To emphasize, the adverse impact must be real, not theoretical. Moreover, senior military leaders must demonstrate that imposing on a service member’s religious freedom is the least restrictive means of securing compelling government interests. But senior military leaders denied the vast majority of religious accommodation requests, claiming that the continued service of the unvaccinated would adversely impact these compelling government interests.
The past few months have demonstrated that the bases for those rejections were only theoretical, confirming what many service members already knew. Further demonstrating a lack of good faith on the part of leadership, it would have been possible for the services to accept prior Covid illness as evidence of immunity, which would secure compelling government interests without imposing on the religious freedoms of conscientious service members. But leadership denied natural immunity, arguing that the quality and duration of the benefits that come from surviving the disease were not certain, and that the shot provided a boost of immunity. Succinctly, military leaders asserted boosting immunity was more important than exercising constitutional rights. This unseriousness about the rights of service men and women should be, at a minimum, deeply unsettling.
Had Congress not intervened, military leaders would most likely have continued to doggedly pursue the expulsion of conscientious objectors. In July 2022, written testimony by Lt. Gen. Schneider stated, “In my opinion, if a large number of Department of the Air Force Service members were to be exempt from the COVID-19 vaccine mandate, it would pose a significant and unprecedented risk to military readiness and our ability to defend the nation.” Likewise, as late as December 2022, Secretary Austin insisted that the mandate remain.
Military leadership ignored the evidence, and denied the overwhelming majority of religious accommodation requests, frequently citing broad generalities or half-truths about the particular circumstances in which the requestors served. The time since the end of the mandate has proven these military leaders to have been in error. Had they been permitted to continue on that errant path, national security would certainly have been adversely impacted. As I wrote in December, ending the mandate is only the first step in repairing the harms done during the mandate.
To recover from the error, military leaders and commanders should consider how they might avoid being on the wrong side of this sort of issue in the future. Toward this end, I offer two principles that would have decreased the likelihood of making the wrong decision on the Covid-19 accommodations issue.
The first principle: Military leaders should recall and emphasize that their oath to “support and defend the Constitution” is also expressed in supporting and defending the constitutional rights of service members.
All military members and senior civilian leaders swear an oath to “support and defend the Constitution.” Many service members who refused the vaccine on religious grounds were rebuffed with the charges, “you gave up your rights when you joined,” or “you have been given an order—remember your oath.” Service members do not give up their constitutional rights when they join the military, but accept an additional set of laws in the Uniform Code of Military Justice.
Since it is by religious faith that a religious person makes oaths, to violate religious faith is to violate the very ground that makes their oath binding. The objectors, then, reinforce their oaths in the act of objection. Conversely, looking up the chain of command, is there a clearer application of the oath to “support and defend the Constitution” than supporting and defending the constitutional rights of the service members one commands?
This novel vaccine for a novel coronavirus caused military leaders to take a novel approach to religious accommodation. In short, they prioritized a particular means of acquiring immunity over the constitutionally protected rights of service members. Had senior military leaders honored the constitutional elements at stake and granted religious accommodations, they could have avoided wronging the thousands who sought accommodation, with no additional cost to the mission than we observe now.
What caused military leaders to take such a stern but dubious stance? They delegated their military judgment to experts on only one side of what should have been a national and scientific debate. Hence, the second principle: Military commanders should diligently scrutinize their experts when making decisions of great consequence.
Too often of late, military commanders abrogate their own expert judgment to other specialized bureaucrats. As a result, commanders often become more of an operational arm of the bureaucracy, rather than the bureaucracy being an administrative arm of commanders.
It is simply not true that this sort of deference is required because of an expert’s specialty. A leader does not have to be able to do a job himself to rightly judge its use. In the case of the Covid-19 experts, it was not necessary that military leaders be able to do the scientific testing to judge the applicability of the medical conclusions in a military context.
There were two expert opinions issued to military commanders in support of the mandate and, more importantly, accommodation denials, that deserved more scrutiny than they received. These opinions were that the Covid-19 vaccines are “safe and effective,” and that natural immunity is ineffective.
The “safe and effective” conclusion was questionable simply because it was derived at “warp speed.” While it may be possible to move very quickly through an approval process, it is not possible to discern long-term effects from short-term analysis of a complex system. Even the highest quality analysis of short-term observations cannot ground long-term conclusions.
Commanders who ignored this fact imposed long-term risk on the force—risk that we still bear because we are just beginning to learn what we should have known before acting. Moreover, specifically contrary to the effectiveness element of the conclusion, the Centers for Disease Control itself acknowledged that vaccine effectiveness was not complete months before the mandate was announced.
Similarly, by the time of the mandate, the safety aspect of the conclusion was questionable, too, because the number of reported Covid vaccine injuries after only nine months was nearing the total number reported for all vaccines over the previous thirty years. These are simple examples of real and reasonable evidence that should have at least prompted scrutiny of the expert’s “safe and effective” conclusion cited to support accommodation denials.
Senior military officials and commanders also accepted the expert opinion doubting the utility of natural immunity, undermining a truth we have known since the Peloponnesian War. While it is certainly true that particular immune responses to the disease will differ from serviceman to serviceman, it is also true that by the time the mandate was instituted there were many studies attesting to the overall effectiveness of natural immunity. Military commanders ignored that evidence, refused to accept it as a “lesser means” of securing government interests, and so denied the constitutional rights of service members.
Had leadership better scrutinized non-military expert opinion, they could have avoided errors that are now obvious. Because such fundamental issues as constitutional rights were at stake, military leaders had a responsibility to understand the breadth of the evidence, especially where it disagreed with bureaucratic policy.
Had Congress not intervened to end the military Covid-19 vaccine mandate, senior military leaders would at this very moment be diligently, and errantly, working to discharge unvaccinated service members; the nearly four months since the end of the mandate have demonstrated that this would have been the wrong course of action. And if military leaders are to avoid similar errors in the future, they should re-consider the significance of their oaths, and more diligently scrutinize expert opinion.
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