Whether characterized as a facial challenge or as a class of precisely similar as-applied challenges, requiring only a single judicial determination, the plaintiffs’ contention is—based on current data—quite plausible that each branch’s procedure for requesting a religious exemption is a ruse that will result inevitably in the undifferentiated (and therefore unlawful under [Religious Freedom Restoration Acts]) denial of each service member’s request. Particularly, the data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds.
This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA. The importance of a person’s right to religious liberty, protected in the Free Exercise Clause of the First Amendment to the Constitution and the explicit implementing commands of RFRA, commends deferring the resolution of the service members’ motion for preliminary injunction pending the accumulation and reporting of additional data and the resumption—with the benefit of more complete and telling data—of the hearing on the motion for preliminary injunction.
Read more» (HT: Eugene Volokh)
Steven D. Merryday | Navy Seal 1 et al., v. Biden et al | United States District Court Middle District of Florida, Tampa Division | November 22, 2021
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