Supreme Court Rejects Appeal From Air Force Officer Who Refused Vaccine

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington on April 23, 2021. (Erin Schaff/Pool/AFP via Getty Images)

The U.S. Supreme Court this week declined to hear an appeal from an Air Force reserve officer who was removed from the service's command after he wouldn't get a COVID-19 vaccine.

Lt. Col. Jonathan Dunn, in a court filing, said he was previously denied a religious exemption and removed from his post because he didn't want to receive the vaccine.

Dunn, a combat veteran who served in Afghanistan, said he tested positive for COVID-19 last year and requested the religious exemption. After he was denied, he filed a legal petition in a California federal court and argued that the Pentagon violated both federal law and his constitutional rights.

The California court rejected his request for a temporary order to bar the Air Force from relieving him of his duties. Later, the U.S. Court of Appeals for the 9th Circuit declined to hear his case before he appealed to the Supreme Court.

His application for an injunction was presented to Justice Elena Kagan, who referred it to the Court, which was denied. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated that they would grant Dunn's request and allowed him to continue to serve in his post while the appeals process plays out.

"If unvaccinated airmen with contraindications are deployable, and unvaccinated pregnant service members can serve for nine months, without harming a compelling interest, applicant can serve," Dunn's petition argued (pdf), in part.

And because he contracted COVID-19, Dunn argued he has natural immunity conferred by a previous infection.

"It is still less likely that a vaccinated or naturally immune member of his unit would experience more than mild symptoms, much less require hospitalization or evacuation," the lawsuit said, adding that the U.S. Air Force's "track record before the vaccine mandate makes it far-fetched that the unit would fail to complete its mission."

Before the Air Force and other military branches reached their current vaccination rate, "thousands of asymptomatic service members have deployed and served domestically over the past two years," the suit continued to say.

Gorsuch, Thomas, and Alito also sided with 35 Navy SEALs in March 2022 when the court rejected their lawsuit. In that case, Alito wrote that the Supreme Court “does a great injustice” to the SEALs by “rubberstamping the Government’s request.”

“These individuals appear to have been treated shabbily by the Navy, and the Court brushes all that aside,” Alito wrote.

Since the Pentagon imposed mandatory vaccination, religious exemptions have been hard to come by in all branches of the armed service.