_________________ 

_________________ 

Cite as: 595 U. S. ____ (2022) 1 

KAVANAUGH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 21A477 

LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, 

ET AL. v. U. S. NAVY SEALS 1–26, ET AL. 

ON APPLICATION FOR A PARTIAL STAY 

[March 25, 2022] 

The application for a partial stay presented to JUSTICE 

ALITO and by him referred to the Court is granted. The 

district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination 

status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if 

such writ is timely sought. Should the petition for a writ of

certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is 

granted, the order shall terminate upon the sending down

of the judgment of this Court.

 JUSTICE THOMAS would deny the application for a partial 

stay. 

JUSTICE KAVANAUGH, concurring. 

I concur in the Court’s decision to grant the Government’s 

application for a partial stay of the District Court’s preliminary injunction for a simple overarching reason: Under Article II of the Constitution, the President of the United 

States, not any federal judge, is the Commander in Chief of 

the Armed Forces. In light of that bedrock constitutional 

principle, “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and 

national security affairs.” Department of Navy v. Egan, 484 
 

2 AUSTIN v. U. S. NAVY SEALS 1–26 

KAVANAUGH, J., concurring 

U. S. 518, 530 (1988). As the Court has long emphasized,

moreover, the “complex, subtle, and professional decisions 

as to the composition, training, equipping, and control of a

military force are essentially professional military judgments.” Gilligan v. Morgan, 413 U. S. 1, 10 (1973). Therefore, it is “difficult to conceive of an area of governmental 

activity in which the courts have less competence.” Ibid. 

In this case, the District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of

command, overriding military commanders’ professional

military judgments. The Court relied on the Religious Freedom Restoration Act. See 42 U. S. C. §2000bb−1(b). But 

even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into 

military affairs in this case. That is because the Navy has

an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less 

restrictive means would satisfy that interest in this context.

The Court “should indulge the widest latitude” to sustain

the President’s “function to command the instruments of 

national force, at least when turned against the outside

world for the security of our society.” Youngstown Sheet & 

Tube Co. v. Sawyer, 343 U. S. 579, 645 (1952) (Jackson, J., 

concurring). That fundamental principle applies here. As 

Admiral William Lescher, Vice Chief of Naval Operations, 

explained: “Sending ships into combat without maximizing

the crew’s odds of success, such as would be the case with 

ship deficiencies in ordnance, radar, working weapons or

the means to reliably accomplish the mission, is dereliction

of duty. The same applies to ordering unvaccinated personnel into an environment in which they endanger their lives, 

the lives of others and compromise accomplishment of essential missions.” App. to Application for Partial Stay 110a. 
Cite as: 595 U. S. ____ (2022) 3 

KAVANAUGH, J., concurring 

In sum, I see no basis in this case for employing the judicial power in a manner that military commanders believe 

would impair the military of the United States as it defends

the American people. 
_________________ 

_________________ 

Cite as: 595 U. S. ____ (2022) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 21A477 

LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, 

ET AL. v. U. S. NAVY SEALS 1–26, ET AL. 

ON APPLICATION FOR A PARTIAL STAY 

[March 25, 2022]

 JUSTICE ALITO, with whom JUSTICE GORSUCH joins, dissenting. 

By rubberstamping the Government’s request for what it 

calls a “partial stay,” the Court does a great injustice to the 

35 respondents—Navy Seals and others in the Naval Special Warfare community—who have volunteered to undertake demanding and hazardous duties to defend our country. These individuals appear to have been treated shabbily 

by the Navy, and the Court brushes all that aside. I would 

not do so, and I therefore dissent. 

I 

In August 2021, the Secretary of the Navy made COVID–

19 vaccination mandatory and threatened severe consequences, including dishonorable discharge and confinement, for anyone who refused.1 Later Navy directives told 

service members that they could apply for religious exemptions, see Electronic Case Filing in U. S. Navy Seals 1–26 v. 

Biden, No. 4:21–cv–01236 (ND Tex., Jan. 3, 2022) (ECF), 

Doc. 44–1, p. 40 (Trident Order #12), but this program, as 

—————— 1See Decl. of W. Lescher in No. 4:21–cv–01236 (ND Tex.), ECF Doc. 87, 

p. 10 (explaining that the Navy’s vaccination policy was that refusing to

be vaccinated would constitute the refusal to obey “a lawful order under

Article 92 of the Uniform Code of Military Justice,” which is punishable 

by dishonorable discharge and confinement for two years). 
 

 

 

2 AUSTIN v. U. S. NAVY SEALS 1–26 

ALITO, J., dissenting 

described by the District Court, was largely “theater” designed to result in the denial of almost all requests. U. S. 

Navy Seals 1–26 v. Biden, ___ F. Supp. 3d___ (ND Tex. 

2022), App. to Application for Partial Stay 31a (App.).

The exemption procedure that the Navy set up included 

no fewer than 50 steps, and during the first 35 steps, none

of the various officials who processed requests gave any consideration to their merit. Decl. of A. Stephens, Exh. 1, ECF 

Doc. 62, at 10–26. Instead, a form letter rejecting each request was prepared and sent to seven offices for review. 

App. 40a.2 A package of rejection letters was then assembled, together with a memo asking the vice admiral who

served as a deputy chief of naval operations to sign the rejection letters. Ibid. Only at step 35 was someone in this

chain told to read the exemption requests, but it appears

that this individual was not given an opportunity to recommend that a request be granted. See ECF Doc. 62, at 7. 

Instead, this person’s sole task was to record pertinent information on a spreadsheet and send the package on to the 

vice admiral. Id., at 7–8. 

Given the nature of this procedure, the results it produced are not surprising. Although more than 4,000 exemption requests had been submitted by February 15,

2022, not a single one had been approved when the complaint in this case was filed. See Application for Partial

Stay 9, and n. 3 (Application) (citing ECF Doc. 129, at 16, 

n. 2 (Feb. 23, 2022)).

Respondents are among the many recipients of form rejection letters, and according to their declarations and testimony, some of them were told outright that pressing for a 

—————— 2Both the District Court and the Court of Appeals concluded based on 

the record that the Navy did not have a template for approving an exemption. See U. S. Navy Seals v. Biden, 27 F. 4th 336, ___ (CA5 2022) 

(per curiam), App. 6a; id., at 40a. In the Reply filed in this Court, the 

Solicitor General claims that there was an approval template, Reply 

Brief 12, n. 6, but no such document been supplied to this Court. 
Cite as: 595 U. S. ____ (2022) 3 

ALITO, J., dissenting 

religious exemption would end their naval careers. A respondent identified as Navy Seal 2 stated that a superior 

officer advised him that “‘all religious accommodation requests will be denied’” because “‘senior leadership . . . has 

no patience or tolerance for service members who refuse 

COVID–19 vaccination for religious reasons and want them

out of the SEAL community.’” U. S. Navy Seals v. Biden, 

27 F. 4th 336, ___ (CA5 2022) (per curiam), App. 9a. This 

officer allegedly added that “‘even if a legal challenge is

somehow successful, the senior leadership of Naval Special

Warfare will remove [his] special warfare designation.’” 

Ibid. According to Navy Seal 5, he was told that “‘there

[would] be a blanket denial of all religious accommodation 

requests regarding COVID–19 vaccination.’” Ibid. Navy

Seal 8 declared that his “‘chain of command . . . made it 

clear that [his] request [would] not be approved and . . . provided [him] with information on how to prepare for separation from the U. S. Navy.’” Ibid. Navy Seal 11 stated that

a command master chief told him that “‘anyone not receiving the COVID–19 vaccine is an “acceptable loss” to the Naval Special Warfare (NSW) community.’” Ibid. 

Forced to choose between violating their religious beliefs 

and the punishment that the Navy threatened, respondents

brought this suit, claiming that the Navy’s denial of their 

exemption requests violated the Free Exercise Clause of the

First Amendment and the Religious Freedom Restoration 

Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb 

et seq. See Complaint in ECF Doc. 1. The District Court

found that these claims were likely to succeed, and it issued 

a preliminary injunction prohibiting the Navy from taking 

adverse actions against respondents due to their unvaccinated status. App. 56a. But the court made clear that its 

order did not require the Navy “to make any particular personnel assignments” and left “[a]ll strategic decisions . . . in 

the hands of the Navy.” Id., at 60a. 

The Government appealed and asked the U. S. Court of 
 

4 AUSTIN v. U. S. NAVY SEALS 1–26 

ALITO, J., dissenting 

Appeals for the Fifth Circuit to stay the preliminary injunction, but the Fifth Circuit refused and issued a detailed 

opinion. 27 F. 4th 336. 

The Government then applied to this Court for what it

characterizes as a “partial stay,” and the Court now issues

a stay that uses precisely the language that the Government proposed. As I will explain, the Court’s order essentially gives the Navy carte blanche to warehouse respondents for the duration of the appellate process, which may

take years. There is no justification for this unexplained

and potentially career-ending disposition. 

II 

In order to obtain a stay, the Government must show,

among other things, that it is likely to succeed in defeating 

respondents’ RFRA and free exercise claims, Hilton v. 

Braunskill, 481 U. S. 770, 776 (1987), and it cannot make 

that showing. 

A 

Under the clear terms of RFRA, all components of the

Federal Government are forbidden to burden a person’s exercise of religion unless the Government can demonstrate

that the burden represents the least restrictive means of 

furthering a compelling interest. 42 U. S. C. §2000bb–1(b); 

Holt v. Hobbs, 574 U. S. 352, 357 (2015). The Government 

does not claim that Article II imperatives absolve the 

Navy’s chain of command from complying with RFRA, and 

it concedes that the statute applies to the military. Application 28 (citing Burwell v. Hobby Lobby Stores, Inc., 573 

U. S. 682, 726–727 (2014)). Indeed, even the form disapproval letter for religious accommodation requests in the

District Court record explains that RFRA applies to the 

Navy, and it is the Navy’s position that “only those interests 

of the highest order can overbalance legitimate claims to 

the free exercise of religion.” ECF Doc. 62, at 27–28. 
Cite as: 595 U. S. ____ (2022) 5 

ALITO, J., dissenting 

Here, it is not disputed that compliance with the vaccination requirement would impose a substantial burden on respondents’ free exercise of religion. Therefore, the two remaining questions are (1) whether the Navy’s mandatory

vaccination program furthers compelling interests and (2) 

whether the denial of respondents’ exemptions represents 

the least restrictive means of furthering such interests. 

As to the first question, I agree that the Navy has a compelling interest in preventing COVID–19 infection from impairing its ability to carry out its vital responsibilities, as 

well as a compelling interest in minimizing any serious 

health risk to Navy personnel. But the Navy’s summary

rejection of respondents’ requests for religious exemptions

was by no means the least restrictive means of furthering 

those interests. This is so for at least two reasons. 

First, all the evidence available at this stage suggests

that the Navy gave no real consideration to respondents’ 

requests, and the Navy had no compelling need to proceed 

in that fashion. I cannot believe that this Court would tolerate such treatment in other contexts. Suppose, for example, that a federal agency processed employee complaints

about discrimination on the basis of race, sex, or disability 

using a 50-step process in which rejection was presumed 

until the very last step, and suppose that the record showed 

that this procedure nearly always resulted in the denial of 

a claim. We would be outraged—and rightfully so. Why,

then, is the Court willing to brush aside what appears to

have occurred here? 

Second, even if we ignore what the Navy did and accept

the justification for the denials that Justice Department 

lawyers later provided in court, the relief that the Court

now awards goes well beyond anything that can possibly be 

regarded as the least restrictive means of further compelling Navy interests. Focusing primarily on the Seals, the 

Government stresses certain characteristics of Seal missions, including small unit size, the frequent need to work 
 

6 AUSTIN v. U. S. NAVY SEALS 1–26 

ALITO, J., dissenting 

at very close quarters, and the remote and often inaccessible locations in which such missions are carried out. Due 

to those characteristics, the Government argues, there is a 

heightened danger that the COVID–19 virus will spread, as

well as a special need to minimize the risk that a mission 

will be compromised by a sick team member who is unable

to perform assigned tasks with maximum effectiveness. 

In order to win at trial, it would not be enough for the

Government to posit that sending an unvaccinated Seal on

such a mission might produce such consequences. A court 

could not simply defer to the Navy’s opinion, and mere “conjecture” or “speculation” would not be enough. See Ramirez 

v. Collier, 595 U. S. ___, ___–___ (2022) (slip op., at 13–15); 

Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (slip op., at 

14). The Government would bear the burden of showing 

that mandatory vaccination is the least restrictive means of

furthering the interest it asserts in light of the present nature of the pandemic, what is known about the spread of the

virus and the effectiveness of the vaccines, prevalent practices, and the physical characteristics of Navy Seals and 

others in the Special Warfare community.

Whether the Government will be able to make the requisite showing remains to be seen, but for the purposes of considering interim relief that is sought in an emergency application, I am willing to accept the Navy’s need to refrain 

from sending unvaccinated Seals on the types of missions 

the Government has described. But participating in such

missions is not the only thing that respondents do, and the

relief that the Government sought and that the Court now 

awards goes much further. Using the terminology selected 

by the Government, the Court stays the preliminary injunction with respect to decisions about “deployment,” “assignment,” and “other operational decisions.”

The Government has not told us what these terms mean, 

but without any contrary guidance, we must assume that 

they will be interpreted in accordance with the definitions 
 

 

Cite as: 595 U. S. ____ (2022) 7 

ALITO, J., dissenting 

in the Department of Defense Dictionary of Military and 

Associated Terms (DOD Dictionary).3 And as defined in 

that dictionary, the terms seemingly allow the Navy to do

just about anything it wants short of punishing respondents 

and drumming them out of the service.

“Deployment” is defined as “[t]he movement of forces into 

and out of an operational area,”4 and an “operational area” 

seems to mean any “geographic are[a]” where the Navy

might carry out “a strategic, operational, tactical, service,

training, or administrative military mission.”5 Thus, sending a respondent somewhere for training or administrative

purposes may constitute a deployment. 

The term “assignment” appears to include detailing an

individual to perform any duties on something more than a

temporary basis.6 And an “operational decision” apparently

can include the carrying out of any “strategic, operational, 

tactical, service, training, or administrative military mission.”7 

Putting all this together, it appears that the Court’s order

allows the Navy to use respondents’ unvaccinated status as

a reason for directing them to perform whatever duties or 

functions the Navy wants, including sitting alone in a room 

—————— 3See DOD Dictionary (Nov. 2021), https://www.jcs.mil/Portals/36/

Documents/Doctrine/pubs/dictionary.pdf. 4 Id., at 62. 5 Id., at 159. 6The DOD Dictionary does not define “assignment,” but the term “assign” is given this complex definition: 

“1. To place units or personnel in an organization where such placement is relatively permanent, and/or where such organization controls 

and administers the units or personnel for the primary function, or 

greater portion of the functions, of the unit or personnel. 2. To detail individuals to specific duties or functions where such duties or functions 

are primary and/or relatively permanent.” Id., at 20. 7The specific term “operational decision” is not defined, but the definition of “operation” includes “the carrying out of a strategic, operational,

tactical, service, training, or administrative military mission.” Id., at 

159. 
 

8 AUSTIN v. U. S. NAVY SEALS 1–26 

ALITO, J., dissenting 

pushing paper or reading manuals for the duration of the 

appellate process. It is squarely within the judicial power 

of Article III to assess whether the Government has shown 

that it has a compelling interest in obtaining this breadth

of equitable relief pending appeal. The Government has not 

done so. 

I would not rubberstamp the Government’s proposed language. While I am not sure that the Navy is entitled to any

relief at this stage, I am also wary, as was the District 

Court, about judicial interference with sensitive military 

decision making. Granting a substantial measure of deference to the Navy, I would limit the order to the selection of 

the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that 

the illness of a member due to COVID–19 might jeopardize

the success of the mission or the safety of the team members. This, I believe, was the aim of the District Court, and 

respondents themselves understand the preliminary injunction that way. See Response in Opposition 1 (stating

that the injunction “does not require the Navy to deploy any

of the thirty-five plaintiffs” (footnote omitted)). 

B 

Respondents are also likely to prevail on their claims 

under the Free Exercise Clause. Under our case law, if the 

Federal Government or a State treats conduct engaged in

for religious reasons less favorably than similar conduct 

engaged in for secular reasons, that treatment is 

unconstitutional unless the relevant jurisdiction can satisfy 

“strict scrutiny,” which is essentially the same as the

standard imposed by RFRA. See Employment Div., Dept. of 

Human Resources of Ore. v. Smith, 494 U. S. 872, 878–879 

(1990); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 

U. S. 520, 533 (1993).

That “[o]ur review of military regulations challenged on 

First Amendment grounds” is deferential does not “render 
 

Cite as: 595 U. S. ____ (2022) 9 

ALITO, J., dissenting 

entirely nugatory in the military context the guarantees of 

the First Amendment.” Goldman v. Weinberger, 475 U. S. 

503, 507 (1986). “This Court has never held . . . that military personnel are barred from all redress in civilian courts

for constitutional wrongs suffered in the course of military 

service.” Chappell v. Wallace, 462 U. S. 296, 304 (1983). 

Here, the Navy treated service members who applied for 

medical exemptions more favorably than those who sought

religious exemptions. For one thing, requests for medical

exemptions were seriously considered, and quite a few were 

granted, at least on a temporary basis. Application 7–8; 27

F. 4th, at ___, App. 20a (“[T]he Navy acknowledges that it 

has granted hundreds of medical exemptions from the

COVID–19 vaccine, at least 17 of which were temporary 

medical exemptions for those in Naval Special Warfare”).

In addition, service personnel with medical exemptions are

not restricted as severely as respondents will be under the 

Court’s order. App. 42a. Indeed, the District Court found 

that under Navy policy those participating in clinical trials 

and those with medical contraindications and allergies to

vaccines remained deployable, unlike those seeking religious accommodations. Id., at 50a (citing ECF Doc. 17–2, 

at 66). The Navy has no interest in different treatment for 

accommodation requests that produce otherwise identical 

outcomes. I would therefore specify in the Court’s order 

that the Navy must provide equal treatment for all unvaccinated service members. 

III 

Today, the Court brushes aside respondents’ First 

Amendment and RFRA rights. But yesterday, the Court

handed down another decision that illustrates the strong 

protection for religious liberty that is provided by the 

framework that applies under RFRA and strict scrutiny.

The decision in question, Ramirez v. Collier, involved a convicted murderer awaiting execution and his rights under 
 

 

10 AUSTIN v. U. S. NAVY SEALS 1–26 

ALITO, J., dissenting 

the Religious Land Use and Institutionalized Persons Act 

of 2000, 14 Stat. 803, 42 U. S. C. §2000cc et seq., which, 

among other things, essentially requires prisons to comply

with the RFRA standard. Ramirez argued that his exercise 

of religion will be burdened unless Texas allows his pastor 

to lay hands on him and pray aloud while he is being executed. Ramirez was less than punctilious and consistent in 

requesting a religious accommodation, see Ramirez, 595 

U. S., at ___–___ (slip op., at 4–5); id., at ___ (THOMAS, J., 

dissenting) (slip op., at 8), but the Court’s decision forgave

all that. Texas objected to Ramirez’s request on the ground

that the pastor’s conduct might interfere with the execution, but the Court held that the State failed to discharge 

its burden to substantiate the likelihood of such harm. Id., 

at ___ (slip op., at 12). 

The contrast between our decision in Ramirez yesterday

and the Court’s treatment of respondents today is striking.

We properly went to some lengths to protect Ramirez’s

rights because that is what the law demands. We should 

do no less for respondents.