Brief: Pentagon Vaccine Mandate Provides No Evidence of ‘Long-Term Efficacy’

In a lawsuit against the Pentagon for its denial of nearly all religious exemptions under its coronavirus vaccine mandate, a new amicus brief accuses the U.S. government of failing to provide updated evidence proving “long-term efficacy.”

Powerhouse D.C. law firm Schaerr Jaffe filed the amicus brief in the United States Court of Appeals for the Eleventh Circuit on Wednesday. The brief asks for the court to uphold a decision from the Middle District of Florida, which granted a class-wide injunction that prohibits the Marine Corps from enforcing the Biden administration’s military vaccine mandate against or discharging Marines whose religious exemptions were denied.

Ken Blackwell, senior fellow for Human Rights and Constitutional Governance at the Family Research Council said:

FRC is honored to stand for religious liberty in the military by supporting these Marines. We hope that this contribution educates the public about both the First Amendment and COVID-19, so that Americans are better informed about protecting public health while also protecting fundamental rights guaranteed by the Constitution.

The brief argues that the burden lies with the Department of Defense to “demonstrate that requiring a one-time administration of a current COVID-19 vaccine furthers the Nation’s compelling interest in military readiness” and to prove “long-term efficacy” if it continues to stifle troops’ religious liberty by denying exemptions.

“Instead of attempting the necessary factual showing, the Department chants the term ‘narrowly tailored’ in talismanic fashion, as if merely saying the words means the requirement has been satisfied,” the brief states. “But this is strict scrutiny, not an incantation, and precedent from the Supreme Court and this Court show that, to carry its burden, the Department must provide evidence of its mandate’s long-term efficacy in achieving a compelling governmental interest.”

The brief states that the original vaccines and “even updated vaccinations and boosters which were supposed to protect Omicron are not effective against the newer subvariants of Omicron,” and that those subvariants have become responsible for the majority of infections.

“This rapidly moving target continues to outpace efforts to update vaccines to match the current threat, and the Department has not submitted evidence to the contrary. The current Vaccine Mandate accordingly cannot stop the spread of COVID-19,” the brief states, citing the Centers for Disease Control and Prevention’s (CDC) own admission that the vaccines do not stop transmission of the virus. 

The brief accuses the Department of Defense of relying on vaccine data from February 2022 to justify its mandate and calls the data “ancient—and thus largely irrelevant” given the fast-evolving nature of the disease.

The brief states:

The sort of evidence the Department has provided here does not establish what they must prove. That is because the submitted data do not track vaccine effectiveness against the subvariants that constitute almost all the current threat, nor do they track long-term effectiveness months after vaccination once the antibodies have waned.

The brief further argues that the Department of Defense has failed to consider that “newer variations of COVID-19 are often less dangerous,” as well as studies showing how military-aged young people are at minimal risk of serious illness from the virus. 

“This oddity is exacerbated by the Department’s well-documented recruiting challenges. In September,” the brief continues, “the Army fell 15,000 short of its recruiting goal—a full 25 percent of what the Pentagon sought— despite a frantic effort to make up the shortfall, noting the Pentagon’s difficulty in finding young people willing and fit to enlist.”

The brief points out that President Joe Biden recently declared that “the pandemic is over,” noted Secretary of Defense Lloyd Austin’s order to “stand down” over a 60-day period so military commanders could “rid our ranks of racists and extremists” and Biden’s recent claim that “MAGA Republicans” present “an extremism that threatens the very foundations of our republic.”

“Does this mean the ‘extremists’ the Secretary of Defense called ‘enemies’ are part of a group that the Commander in Chief says threatens the Nation’s foundations? One would hope not to be numbered among such a group,” the brief poses.

“In short, does the Department view religious opposition to COVID-19 vaccines as a proxy for something the Department views as a violent conservative worldview, and is therefore using opposition to vaccines as a proxy for identifying people it believes to be extremists?” the brief further questions.

The brief states that while “these troubling questions need not be answered,” they are relevant when determining if the vaccine mandate is “motivated by religious animus, that too would doom it under the Free Exercise Clause.”

“Amici hope and pray that all those questions can be answered in the negative. And again, those answers are not essential here because the Vaccine Mandate is not narrowly tailored in any event,” the brief states.

The brief concludes:

There are no “good intentions” or “best efforts” exceptions to strict scrutiny. Interests must be truly compelling. Means must be truly narrowly tailored. And part of narrow tailoring is that a government mandate triggering strict scrutiny must actually further the interest the government has asserted. A mandate that fails to meaningfully advance the specified public interest—or worse yet, as here, actually cuts at cross- purposes with that interest—is illegal.

Breitbart News reached out to the Pentagon for comment but did not receive a response by the time of publication.

The case is Captain v. Secretary of the United States Department of Defense, No. 22-12029, in the United States Court of Appeals for the Eleventh Circuit.