Friends,
Lawmakers can and sometimes do enact laws that are unconstitutional. They can do this because a law isn’t formally unconstitutional until a court says it is. This makes sense, since anyone can cry “unconstitutional” at any time about anything. Unfortunately, this also means that laws can be enacted that are unconstitutional, whether deliberately or not by those enacting them. Such a situation occurred with the promulgation (enactment) of some Navy regulations concerning vaccine religious exemptions (in this case, probably unintentionally). The good news is that when the problems were pointed out to top Navy medical officials at the Bureau of Medicine and Surgery in Washington D.C., they agreed to change policy and revise the regulations to bring them into compliance with proper Constitutional boundaries—twice!
The first instance occurred when Navy officials refused to allow a Navy family to transfer from Italy to Spain without the family being vaccinated, despite the family’s religious objections. This was due to a flaw in the regulation design, but military officials must follow the regulations to the letter unless ordered to do otherwise. Ironically, the family had no problems refusing vaccines while in Italy or once living in Spain, but regulations required them to be vaccinated for the military to transport them from Italy to Spain. If they chose to make the journey on their own paying out-of-pocket for the travel expense, immunizations probably wouldn’t have been an issue.
A review of the applicable regulations revealed some problems:
1. The regulations were inconsistent with the federal Religious Freedom Restoration Act (RFRA), which is federal statutory law that states: “Government shall not substantially burden a person's exercise of religion” unless it “furthers a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” While we can reasonably assume that vaccination would be considered a compelling interest under any government assessment, the least restrictive means surely allows for religious exemptions, as most other federal and state laws mandating vaccines allowed for religious exemptions; and Italy and Spain are first world countries that had no heightened infectious disease concerns as might arise, for example, for a military member being sent to a third-world war zone.
2. Vaccines for international travel are governed by the World Health Organization’s International Health Regulations (IHR). At the time, the IHR only required the yellow fever vaccine for people traveling in and out of sub-Saharan Africa and tropical South America. While the U.S. military has no jurisdiction over international travel, they can impose requirements for providing a service to military members’ families—here, transporting the family for no charge so they can accompany the military member—when those requirements are legal under U.S. law.
3. The Navy allows its members to refuse vaccines for religious reasons, so requiring military members’ families to be vaccinated without allowing religious exemptions was inconsistent with the rule for members.
So, at my clients’ request, I included these concerns in a letter to the Vice Admiral, Navy Surgeon General of the Bureau of Medicine and Surgery. The Commander of the Judge Advocate General’s Corps replied saying he concurred with my legal analysis. Policy was changed and the regulations amended. That process took a couple of years to complete, but it did finally occur.
Another situation arose concerning a much broader matter. Navy regulations required a religious exemption applicant to be a member of an organized religion with a tenet or belief opposing immunizations, and to have an “authorized personal religious counselor” endorse the exemption request. These requirements raised several concerns:
1. There are Department of Defense (DoD) regulations that set out religious exemption requirements for military members and for civilian employees and contractors with the military that don’t have these same restrictions.
2. The RFRA applies as described above, and it defines ‘religious exercise’ as including “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
3. This are also federal legal precedent court cases that tell us that requiring membership in an organized religion for the exercise of a state vaccine religious exemption violates the First and Fourteenth Amendments of the U.S. Constitution.
4. The Navy has authority under the DoD regulations to override religious exemptions requiring vaccines for any exempt member at any time that the member’s commander deems the mission to require this. So, should a member’s religious exemption be deemed to pose a problem to a mission, the commander can override the exemption, just as states of emergency can be declared allowing overriding of religious exemptions within the civilian population.
There was clear legal authority to support the proposition that the Navy exceeded its authority by requiring membership in an organized religion. Once again, I’m happy to report that the Navy concurred with my analysis and reported “the Navy has changed its policy on immunizations for Service members,” and they expected to have revised regulations in place within a few months.
Changing laws can be a lengthy, arduous task, especially when doing conflicts with the elite’s plans to continually require more and more vaccines for more and more people with fewer and fewer exemption options. I was grateful to the Navy for their cooperation on these matters, as that eliminated the need for a lawsuit or grassroots legislative initiative to address the problems. However, I am less optimistic about the cooperation of the military presently, as the advance of totalitarian control has been continually more aggressive, accompanied, quite predictably if most unfortunately, by ever-greater government resistance to the exercise of standard Constitutional rights whenever doing so conflicts with the advancing control. But sometimes, progress affecting many can be made by individuals and small groups working quietly behind the scenes.
With gratitude,
Alan Phillips, J.D.
Vaccine Rights Legal Expert
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Alan Phillips, J.D., is the nation’s leading vaccine rights legal expert, the only person who’s ever been a fulltime attorney with exemptions, who’s worked in over 60 exemption contexts and sub-contexts with clients, attorneys, legislators, and activists nationally for over two decades. For exemption help, see vaccinerights.com.