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Big legal win for Wright-Patterson Air Force members fighting vaccine mandate

A federal judge in Cincinnati granted a temporary order this week blocking Air Force action...
A federal judge in Cincinnati granted a temporary order this week blocking Air Force action against 18 service members including 11 who currently or recently served at Wright-Patterson in Dayton who are fighting the COVID-19 vaccine mandate.(Provided by Attorney Chris Wiest)
Published: Apr. 1, 2022 at 7:36 PM EDT|Updated: Apr. 1, 2022 at 7:40 PM EDT
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CINCINNATI (WXIX) - A federal judge in Cincinnati is stopping Air Force action against 18 servicemembers fighting the COVID-19 vaccine including 11 who currently or recently served at Wright-Patterson in Dayton.

The servicemembers sued earlier this year over the denial of religious accommodations for refusing shots.

The First Amendment and Religious Freedom Restoration Act of 1993 (RFRA) does, in fact, apply to the military, contrary to the assertions of the Biden Justice Department, Judge Matthew McFarland wrote in Thursday’s temporary order.

He was appointed by President Donald Trump in late 2019 on the recommendation of a bipartisan commission created by Ohio senators Rob Portman, a Republican, and Sherrod Brown, a Democrat.

“From the time our Founding Fathers signed the Declaration of Independence and, later, the United States Constitution, United States citizens have been provided with the freedom to practice their religious beliefs as they deem fit,” the judge’s decision reads.

“Religious liberty was just as important to those who founded this nation as it is today.”

The attorney for the servicemembers, Chris Wiest, called the order “a victory for religious liberty.”

“We were thrilled with this decision and the opportunity to get to defend the constitutional rights of those who defend all of our constitutional rights.”

The preliminary injunction is not a final ruling, but a request to make this case a class action one is still pending.

Wiest said Friday they hope the judge rules on it soon.

Similar litigation working through the courts in other states right now could be the one to go all the way to the U.S. Supreme Court for the precedent-setting decision.

A federal judge in Texas issued a new order earlier this week that stops the Navy from discharging sailors who refuse the vaccine and turned the case into a class action.

U.S. District Court Judge Matthew McFarland was appointed by former President Donald Trump in...
U.S. District Court Judge Matthew McFarland was appointed by former President Donald Trump in late 2019 on the recommendation of a bipartisan commission created by Ohio senators Rob Portman, a Republican, and Sherrod Brown, a Democrat.(U.S. District Court of Southern Ohio)

As in the Navy case, the Air Force servicemembers continue to face serious repercussions by refusing to get the COVID-19 vaccine. That’s particularly in light of the defendant’s denial of their religious exemptions,” McFarland wrote in his order, including “adverse administrative actions, non-judicial punishment, administrative demotions, admirative discharges and courts-martial.

“Further, each of the plaintiffs who testified at the hearing indicated that they were being threatened with imprisonment for refusing the vaccine without an exemption. Accordingly, an imminent threat of punitive action by defendants is present and appears likely to come to pass.”

This case involves the “constitutional collision of brave men and women serving in the Air Force sincerely trying to exercise their religious beliefs and their esteemed superiors who have loaded their weapons against them,” the judge wrote in summing up his order.

“During this preliminary injunction hearing the Court watched and heard the testimony of Plaintiffs, some appearing in their full military uniforms and others also in uniform with their young families, watching for justice to unfold in this case.

“And, at that moment, the Court wondered what General George Washington would think of this battle between the Executive branch, the First Amendment and RFRA. In fact, the Court asked counsel that question.

“As America’s first and perhaps finest general, Washington’s watchwords completely captured this Court’s own thinking in a way that borders the prescient. In a letter dated 27 January 1793 to the New Jerusalem Church of Baltimore, he wrote:

‘We have abundant reason to rejoice, that in this land the light of truth and reason have triumphed over the power of bigotry and superstition, and that every person may here worship God according to the dictates of his own heart. In this enlightened age and in this land of equal liberty, it is our boast, that a man’s religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining and holding the highest offices that are known in the United States.’

“Yet here and now, the Air Force has put these Airmen in the unconscionable position of choosing between their faith in an eternal God and their career in the United States military.

“Indeed, active-duty Lt. Col. Edward Joseph Stapanon, III, who logged 174 hours of combat time flown in Operation Iraqi Freedom and earned two air medals, testified in the preliminary injunction hearing in this case as follows:

Q: Now, you understand the seriousness of things, of the decision that you’re making today; correct?

A: Yes, ma’ am, I do.

Q: And if pushed, will you in fact go to prison to stand behind your religious beliefs?

A: Yes, Ma’am. I don’t see that I have any other alternative. When I meet my maker, I’m going to be held responsible for the decisions I’ve made, and I’d much rather go to prison. There’s been a lot of saints that have gone to prison, so I’m willing to do that.’”

“As such, decorated Lt. Col. Stapanon, who also testified that there is a shortage of pilots, would rather endure prison than betray his sincerely held religious beliefs. And, the enforcement of this vaccine mandate would take this American hero and his other patriots and discharge them from their hard-earned duty stations.

“Accordingly, “ the judge finished, “and with a respectful nod of gratitude to the Father of our great country, this Court, as a sworn guardian of the Constitution, will not order the Air Force personnel at this stage to forfeit the protections of our laws and of the Free Exercise Clause of the First Amendment.”

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