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Today, a coalition of 23 Attorneys General, led by Mississippi Attorney General Lynn Fitch, filed an amicus brief in Dunn v Austin in support of Lieutenant Colonel Jonathan Dunn’s challenge regarding the Biden Administration’s COVID-19 vaccine mandate on men and women serving in the armed forces.
LTC Dunn challenges the Administration’s denial of an accommodation for his sincere religious objection to obtaining the vaccine. He has filed an emergency application to the U.S. Supreme Court seeking an injunction to prevent the U.S. Air Force from disciplining or discharging him for being unvaccinated.
“LTC Dunn has spent two decades laying his life on the line to defend our freedoms,” said Attorney General Lynn Fitch, “and now the nation he has served is willing to cast aside his freedom in pursuit of a political agenda with no sound basis in fact, law, or true interest in military readiness. We stand with LTC Dunn and the thousands of other service members seeking religious exemption to the Biden Military Vaccine Mandate. Religious liberty is the anchor for all other freedoms, the first, best, and final safeguard against tyranny. If deference is due in this case, it is to that most fundamental freedom.”
On August 24, 2021, the Department of Defense (DOD) announced plans to implement a COVID-19 vaccine mandate for active duty and Ready Reserve service members with “ambitious timelines for implementation.” While the mandate ostensibly includes a religious liberty exemption, in practice, few have been granted. As the brief notes, using Air Force data, “Of the 7,693 requests for such exemptions, 32 have been granted. Even accounting for the 2,827 requests still pending, that results in a denial rate of 99.34%.” The States contrast their own experience in respecting religious liberty while meeting public health needs even at the height of the pandemic with the Administration’s dismissal of fundamental first freedoms even as contraction, hospitalization, and death rates wane.
The mandate was part of a broader push by the Biden Administration to increase national vaccination rates by forcing vaccination on federal contractors, federal employees, healthcare workers, Head Start employees and volunteers, and those employed by private employers with more than 100 workers. As the States note in their brief, courts have demonstrated skepticism of these Administration mandates, recognizing, “the overreaching and flawed claims of legal authority underlying the Administration’s response, the tension between its policies and the facts, and its inconsistent statements and actions that undercut its claims of good faith and suggest pretext.” The States urge the Court to apply similar skepticism to the Administration’s claim to deference here.
Using DOD’s own data, the brief notes the facts that undermine the Administration’s claim that this categorical mandate is necessary for military readiness, including that of 394,293 reported cases within the military population:
· Only 94 deaths have been reported – a fatality rate of 0.02%, and
· Only 2,597 have resulted in hospitalization – a rate of 0.66%.
LTC Dunn was commissioned in the U.S. Air Force in 2003 and served three combat tours in Afghanistan. In 2014, he left active duty and joined the Air Force Reserve. Three days before DOD’s announcement of this mandate, he took command of the 452nd Contingency Response Squadron. On April 1, 2022, a split panel of the Ninth Circuit Court of Appeals denied LTC Dunn’s emergency motion for an injunction pending appeal. Without judicial relief, the pension he has earned in honorable service to this country, and for which he qualifies next year, is in jeopardy.
The amicus brief was filed by the Attorneys General for Mississippi, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, West Virginia, and Wyoming.
The brief is available here.
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