Jurisprudence

To Protect “Religious Freedom,” a Judge Still Won’t Let the Navy Deploy a Warship

At a Thursday hearing, Judge Steven Merryday showed no regrets about prohibiting the Navy from reassigning an anti-vaxxer.

Sailors stand aboard a Navy ship on the water
The USS Winston S. Churchill, a guided-missile destroyer, in Port Sudan in 2021. AFP via Getty Images

U.S. District Judge Steven Douglas Merryday has effectively stopped the federal government from deploying a $1.8 billion warship and its 300-person crew, the Justice Department confirmed in a hearing at a federal courthouse in Tampa, Florida, on Thursday. The Navy will not deploy the ship, a guided-missile destroyer, until it can reassign the commanding officer, who refuses to get the COVID-19 vaccine. But Merryday, a George H.W. Bush nominee, is blocking the officer’s reassignment, claiming the move would violate his religious freedom.

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Thursday’s evidentiary hearing allowed the Justice Department to make its case that Merryday’s order is directly interfering with military readiness. But the judge did not appear persuaded by the government’s arguments. It seems that Merryday will continue to threaten national security by seizing control of key naval operations until the Supreme Court steps in.

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The commanding officer at the heart of this case was granted anonymity by the court, so I’ll call him John Doe. As an active-duty member of the Navy, Doe is subject to the armed forces’ COVID-19 vaccine mandate, issued by the commander in chief, President Joe Biden. Doe claims, however, that his religious beliefs prevent him from getting the shot. When the Navy rejected Doe’s request for a religious exemption, he filed a lawsuit alleging a violation of the federal Religious Freedom Restoration Act. Although he is stationed in Norfolk, Virginia, Doe—represented by the far-right Liberty Counsel—filed the suit in the Tampa Division of the U.S. District Court for the Middle District of Florida. This court is something of a hotbed of litigation against COVID regulations; in 2021, Merryday himself blocked a Centers for Disease Control and Prevention order limiting cruise ship operations due to the pandemic.

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It was no surprise, then, when Merryday ruled in Doe’s favor. But the judge did not just shield Doe from the vaccine; he also ordered the Navy to retain Doe as commanding officer of a warship and deploy him without regard to his vaccination status. Merryday’s sweeping restraining order created immediate problems, because Doe’s superiors no longer trust him. They testified under oath that Doe refused to get tested for COVID-19 despite showing classic symptoms, then recklessly exposed dozens of his crew to the virus. They also attested he had “intentionally deceived” his superiors, defied lawful orders, and demonstrated a pattern of disobedience.

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As Capt. Frank Brandon told the court: “I cannot trust him to look after the welfare of his sailors, and I cannot trust him to be honest with me. In my judgment, allowing him to remain in command of a Navy warship would be reckless.” Merryday suggested that these accusations were mere retaliation against Doe’s religious beliefs.

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On Thursday, Justice Department attorney Amy Powell laid out the disastrous consequences of the judge’s previous orders. An entire guided-missile destroyer, she explained, is effectively sidelined because of Merryday’s ruling: The Navy simply will not deploy it as long as Doe remains its commanding officer. After reiterating the reasons that Doe’s superiors and subordinates don’t trust him, Powell explained the medical risks: Unvaccinated individuals are at far higher risk of serious illness; if Doe contracted COVID, his incapacitation would undermine naval operations and potentially cause an outbreak among the crew. A serious case of COVID requires a level of medical care that’s not available on the warship, which doesn’t even have a physician. Moreover, many of the nation’s allies require American service members to get vaccinated before stepping foot on their soil. These rules would bar Doe from leaving the ship at foreign ports. And all these risks heighten the possibility of “mission failure.”

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Doe took the stand next. A tall white man with dark hair, he appeared confident but slightly indignant. (He did, indeed, look “triumphantly fit and slim and strong,” as Merryday previously described him.) Liberty Counsel’s Roger Gannam began direct examination, asking Doe about the government’s claim that his objections to the vaccine pose a threat to “good order.” Doe, clearly prepared for this question, launched into a long narrative about the term’s dark history. The military delayed racial integration to preserve “good order,” he said. It also justified discrimination against women and gay people as necessary for “good order.” Now history is repeating itself as the commander in chief cites “good order” as a justification for mandatory vaccination.

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Choking up, Doe testified that “hundreds of thousands of service members” were negatively affected by the mandate. But his own objection, Doe argued, has not affected “good order” on the ship. Doe said that his oath is to “protect the Constitution,” not to follow unconstitutional orders. He rejected the government’s concern that he could not disembark alongside his subordinates at foreign nations’ ports due to his unvaccinated status, insisting: “Other nations cannot tell our ship what to do.” And he complained that the Navy’s diversity and inclusion trainings emphasize race, ethnicity, and gender, but fail to protect religion. He was here, he said, to “challenge” that “failure.”

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On cross-examination, Doe’s demeanor shifted significantly. He became evasive and combative as Powell poked holes in his prior testimony. Powell pointed out that Doe’s executive officer lost trust in him after he allegedly failed to give proper notice before traveling to a high-risk area while on leave. Though Doe believes the allegations of his executive officer to be a mere misunderstanding, Powell’s questions emphasized the growing sense of distrust—including atypical supervision and questioning from superior officers. Of particular concern was the leave Doe was taking to attend the hearing. Powell’s questioning suggested that superior officers feel increasingly misled by Doe’s ambiguous communication, whereas Doe chalked up any ambiguity to a “lack of context” and a desire to insulate his subordinates from personal matters in the interest of “good order.”

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Throughout the proceeding, Merryday remained relatively quiet and relaxed—and maskless. (Although the court’s mask mandate ended on Monday, he reminded the audience: “Masks were always discretionary in my court.”) He seemed thankful for Doe’s testimony, as though it vindicated his earlier orders. And he showed evident interest when Doe said his superiors had punished him for taking leave to testify in this case. (This uncorroborated theory bolsters Merryday’s prior suggestion that Navy officers fabricated Doe’s disobedience as a pretext to remove him from command.) The judge said nothing on Thursday to indicate that he will reconsider his restraining order forcing the Navy to keep Doe in command of the warship.

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Multiple admirals and captains have testified that, because the Navy may need to deploy this ship very soon—especially in light of the current conflict in Europe—Merryday’s orders present a direct threat to national security. Merryday obviously does not believe them, but we may soon find out if the Supreme Court does. A closely related case out of Texas is pending before SCOTUS right now, giving the justices an opportunity to remind conservative judges that they do not, in fact, run the armed forces. Until that happens, Justice Department attorneys will continue to waste time and energy pleading with judges like Merryday to stop overruling lawful military orders issued by the commander in chief.

Additional reporting by Matthew Kelly.

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