*3 Before BACHARACH , EBEL , and McHUGH , Circuit Judges.
_________________________________
EBEL , Circuit Judge.
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This appeal presents a single jurisdictional issue: Whether Appellant Faith Bible Chapel International can bring an immediate appeal under the collateral order doctrine challenging the district court’s interlocutory decision to deny Faith summary judgment on its affirmative “ministerial exception” defense. Faith operates a school, Faith Christian Academy (“Faith Christian”). Plaintiff Gregory Tucker, a former high school teacher and administrator/chaplain, alleges Faith Christian fired him in violation of Title VII (and Colorado common law) for opposing alleged race *4 discrimination at the school. As a religious employer, Faith Christian generally must comply with anti-discrimination employment laws. But under the affirmative “ministerial exception” defense, those anti-discrimination laws do not apply to employment disputes between a religious employer and its ministers. Here, Faith Christian defended against Tucker’s race discrimination claims by asserting that he was a “minister” for purposes of the exception.
The Supreme Court deems the determination of whether an employee is a “minister” to be a fact-intensive inquiry that turns on the particular circumstances of a given case. Here, after permitting limited discovery on only the “ministerial exception,” the district court ruled that, because there are genuinely disputed material facts, a jury would have to resolve whether Tucker was a “minister.” Summary judgment for Faith Christian, therefore, was not warranted. Faith Christian immediately appealed that decision, seeking to invoke our jurisdiction under the collateral order doctrine.
The Supreme Court has stated time and again that the collateral order doctrine permits a narrow exception to the usual 28 U.S.C. § 1291 requirement that we only review appeals taken from final judgments entered at the end of litigation. In deciding whether the collateral order doctrine permits immediate appeals from the category of orders at issue here—orders denying summary judgment on the “ministerial exception” because there remain disputed issues of material fact—we must weigh the benefit of an immediate appeal against the cost and disruption of allowing appeals amid ongoing litigation. After conducting that balancing, we *5 determine that we do not have jurisdiction to consider this interlocutory appeal. Instead, we conclude the category of orders at issue here can be adequately reviewed at the conclusion of litigation.
In deciding that we lack jurisdiction, we reject Faith Christian’s arguments, which the dissent would adopt. Faith Christian seeks to justify an immediate appeal first by making the novel argument that the “ministerial exception” not only protects religious employers from liability on a minister’s employment discrimination claims, but further immunizes religious employers altogether from the burdens of even having to litigate such claims. In making this argument, Faith Christian deems the “ministerial exception” to be a semi-jurisdictional “structural” limitation on courts’ authority to hear Title VII claims. On that basis, Faith Christian then draws an analogy between the decision to deny Faith Christian summary judgment on its “ministerial exception” defense and those immediately appealable decisions to deny government officials qualified immunity from suit under 42 U.S.C. § 1983.
We reject both steps of Faith Christian’s argument. The Supreme Court has made clear that the “ministerial exception” is an affirmative defense to employment discrimination claims, rather than a jurisdictional limitation on the authority of courts to hear such claims. Further, the “ministerial exception” is not analogous to qualified immunity available to government officials. The Supreme Court has only permitted immediate appeals from the denial of qualified immunity when the issue presented for appeal is one of law, not fact. Here, on the other hand, the critical question for *6 purposes of the “ministerial exception” is the fact-intensive inquiry into whether Tucker was a minister.
Moreover, the reason that the Supreme Court permits immediate appeals from the denial of qualified immunity is to protect, not individual government officials, but rather the public’s interest in a functioning government. That public interest is not present when a private religious employer seeks to avoid liability under Title VII from employment discrimination claims.
Faith Christian’s (and the dissent’s) argument for application of the collateral order doctrine here contradicts several well-established lines of Supreme Court precedent establishing that
- the question of whether an employee is a minister is a fact-intensive inquiry, rather than a legal determination, see Our Lady of Guadalupe Sch. v. Morrissey-Berru,140 S. Ct. 2049 , 2066–67 (2020); - the collateral order doctrine applies only narrowly, usually to review legal, rather than factual, determinations, see Johnson v. Jones,515 U.S. 304 , 307, 309–10, 313–18 (1995);
- qualified immunity protects only government officials, see Wyatt v. Cole,
I. BACKGROUND
A. Relevant Facts
Faith Christian Academy is a Christian school offering Bible-based education from kindergarten through high school. The students and staff come from a wide array of religious perspectives.
Tucker began teaching high school science at the school in 2000. Later he also taught courses entitled “Leadership” and “Worldviews and World Religions.” In 2014, Faith Christian hired Tucker for the additional job of chaplain, a position also referred to as the Director of Student Life. In 2017, Tucker was assigned the additional task of planning Faith Christian’s weekly “Chapel Meetings.”
In January 2018, Tucker conducted a chapel meeting—he calls it a symposium—on race and faith. Although Faith Christian initially congratulated Tucker on the presentation, that presentation was not well-received by some parents and students. As a result, the school relieved Tucker of his duties preparing and conducting weekly chapel meetings and soon thereafter removed him from his position as Director of Student Life. At the end of February 2018, the school also fired him from his teaching position.
B. Procedural Posture
Tucker filed a complaint with the Equal Employment Opportunity Commission and, after receiving a right-to-sue letter, sued Faith Christian. Tucker asserted two *8 causes of action relevant here: 1) a claim under Title VII of the Civil Rights Act of 1964, alleging that the school fired him in retaliation for opposing a racially hostile environment; and 2) a Colorado common law claim for wrongful termination in violation of public policy. [1]
At the outset of this litigation, Faith Christian moved to dismiss the action
under Fed. R. Civ. P. 12(b)(6), asserting the “ministerial exception.” The exception
is rooted in the First Amendment, which “bar[s] the government from interfering
with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor,
Because it is well established that a religious employer does not “enjoy a
general immunity from secular laws,” Our Lady,
exception” does not preclude discrimination claims brought by a religious employer’s
non-ministerial employees. See, e.g., Rayburn v. Gen. Conf. of Seventh-Day
Adventists,
Here, Faith Christian asserted its affirmative “ministerial exception” defense in a Rule 12(b)(6) motion to dismiss, but the district court converted that motion into one for summary judgment under Fed. R. Civ. P. 56. The court then permitted limited discovery only on the questions of whether Faith Christian is a religious employer entitled to assert the “ministerial exception” and whether Tucker qualified as a minister. After the parties addressed those questions, the district court denied Faith Christian summary judgment, ruling that, while Faith Christian could assert the “ministerial exception,” the question of “whether Mr. Tucker was a ‘minister’ within the meaning of the ‘ministerial exception’ is genuinely disputed on the evidence presented.” (Aplt. App. 284; see also id. (stating “that there is a genuine dispute of material fact as to whether Mr. Tucker was a ‘minister’”).) The district court later denied Faith Christian’s motion for reconsideration. [2] Faith Christian immediately *10 appealed both decisions, invoking our jurisdiction under 28 U.S.C. § 1291 based on the collateral order doctrine. [3]
II. DISCUSSION
This case presents an important jurisdictional question of first impression for this Court: whether a decision denying a religious employer summary judgment on its “ministerial exception” defense constitutes an immediately appealable final order under the collateral order doctrine. Ultimately, we answer that question in the negative and conclude we lack appellate jurisdiction to consider this interlocutory appeal.
In reaching that conclusion, we: (A) address the scope of this appeal, which
involves the “ministerial exception”; (B) discuss general collateral-order-doctrine
principles, the only justification Faith Christian invokes in support of its
interlocutory appeal; and (C) apply those collateral-order principles to the category of
F.3d 1152, 1158 (9th Cir. 2017) (recognizing “ministerial exception” applies to state
law causes of action “that would otherwise impinge on the church’s prerogative to
choose its ministers or to exercise its religious beliefs in the context of employing its
ministers.” (quoting Bollard v. Cal. Province of the Soc’y of Jesus,
[3] Faith Christian has not invoked 28 U.S.C. § 1292(b), which permits a litigant to ask the district court to certify that the interlocutory “order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
orders at issue here, orders denying summary judgment on the “ministerial exception” defense.
A. The Scope of This Appeal
We first review what is at issue in this appeal—and what is not. Namely, this appeal involves only Faith Christian’s affirmative defense under the “ministerial exception,” not a defense under the broader church autonomy doctrine. Although the two defenses share a common heritage, they are distinct defenses; we constrain our analysis here to the “ministerial exception.” We begin by reviewing the similarities and differences between the two defenses.
1. The “Ministerial Exception” and the Church Autonomy Doctrine Both defenses are grounded in the First Amendment, which protect[s] the right of churches and other religious institutions to decide matters “‘of faith and doctrine’” without government intrusion. Hosanna-Tabor, 565 U.S. at 186 (quoting Kedroff [v. St. Nicholas Cathedral of Russian Orthodox Church], 344 U.S. [94,] 116 [(1952)]). . . . The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what we have termed “‘matters of church government.’” [Hosanna-Tabor,] 565 U.S. at 186. This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.
Our Lady,
The “ministerial exception” is a narrower offshoot of the broader church autonomy doctrine; it only precludes employment discrimination claims brought by a “minister” against his religious employer.
*12 [A] church’s independence on matters “of faith and doctrine” requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith. The ministerial exception was recognized to preserve a church’s independent authority in such matters.
Id. at 2060–61 (footnote omitted); see also Hosanna-Tabor,
Like the church autonomy doctrine, the “ministerial exception” “operates as an
affirmative defense to an otherwise cognizable claim.” Hosanna-Tabor, 565 U.S. at
195 n.4. While these defenses are related, the threshold question for determining
when they apply differs. “Before the church autonomy doctrine is implicated, a
threshold inquiry is whether the alleged misconduct is ‘rooted in religious belief.’”
Bryce v. Episcopal Church in the Diocese of Colo.,
*13
The Supreme Court has made clear, in both Hosanna-Tabor and Our Lady, that
this threshold determination of whether an employee is a “minister” for purposes of
the “ministerial exception” requires a fact-intensive inquiry into the specific
circumstances of a given case. See Our Lady,
Following those Supreme Court decisions, a number of circuit courts have also
recognized the fact-intensive nature of this inquiry. See Grussgott v. Milwaukee
Jewish Day Sch., Inc.,
Contrary to all this authority, Faith Christian, as well as the dissent, deems the
determination of whether an employee is a minister instead to present a question of
law rather than fact. In reaching that conclusion, the dissent relies on three cases,
none of which come from the United State Supreme Court. First, the dissent relies on
Conlon, a case decided post-Hosanna-Tabor but before Our Lady. There, the Sixth
Circuit stated that “whether the [ministerial] exception attaches at all is a pure
question of law which this court must determine for itself.”
of other circuits courts, following the Supreme Court, have instead recognized the fact-intensive inquiry necessary to determine whether a plaintiff-employee was a “minister.”
Second, the dissent mentions Skrzypczak,
All three affidavits contain identical language, beginning with the conclusion that “[Appellant’s] job was purely administrative,” and continuing with the statement, taken almost verbatim from Rayburn, that “[the job] in no way required or involved a primary function of teaching, spreading the faith, *16 control of church governance, supervision of a religious order, or supervision or participation in religious ritual in worship.” (Appellant’s App. at 161–65.) “To survive summary judgment, nonmovant’s affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (internal quotation marks omitted). Despite Appellant’s contentions, these affidavits are exactly the type of conclusory affidavits that are insufficient to overcome summary judgment. Even if we accept [that] these affidavits are based on personal knowledge, they do not set forth any facts, admissible or otherwise, that a court could consider as raising a material issue of fact. Instead, each affidavit merely parrots a general rule that a court could consider in determining the ministerial exception’s application and then states, in the affiant’s opinion, the legal conclusion the court should reach. Accordingly, we hold the district court did not err in its determination that Appellant was a minister for purposes of the exception.
Id. at 1244. Although Skrzypczak uses the phrase “legal conclusion” in describing the plaintiff-employee’s deficient affidavits, the overall opinion treats the question of whether the plaintiff-employee qualified as a “minister” as a factual determination. Different from that case, here Tucker, in opposing summary judgment, submitted evidence to support his assertion that he was not a minister.
Lastly, the dissent relies on a pre-Our Lady case from the Kentucky Supreme
Court, Kirby v. Lexington Theological Seminary,
The cases on which the dissent relies, then, are not persuasive. We, therefore, treat the question of whether Tucker is a minister, for purposes of applying the “ministerial exception,” as a fact-intensive inquiry rather than a straight legal conclusion. [4]
With this general legal framework in mind, we now turn to the circumstances of the case before us.
2. The Defense Asserted in This Case is Only a “Ministerial Exception” Defense and Not a Church Autonomy Defense Faith Christian, in its converted summary judgment motion, asserted only a “ministerial exception” defense and, importantly, the limited discovery and summary judgment pleadings focused only on that issue. [5] In its motion for reconsideration, Faith Christian continued to assert the “ministerial exception” defense, but also for the first time referred, perfunctorily, to a defense under the broader church autonomy doctrine. On appeal, Faith Christian now relies on both defenses and, at times, lumps them together.
*18
Faith Christian, however, has not adequately developed a factual record for
asserting the church autonomy defense. In particular, there has been no record
development on that defense’s necessary threshold question: whether the employment
dispute between Tucker and Faith Christian is rooted in a difference in religious
belief or doctrine. Further, the parties only briefly and very generally alluded to the
nature of their dispute in their pleadings. In his amended complaint, for example,
Tucker alleged that Faith Christian fired him in retaliation for Tucker opposing race
discrimination at the school. Faith Christian asserted in its answer, filed after the
district court denied Faith Christian summary judgment on the “ministerial
exception,” that it fired Tucker because it disagreed with the biblical interpretations
upon which he relied in his “Race and Faith” presentation. Faith Christian makes
that argument again in its appellate briefs. Tucker counters that, prior to his firing,
Faith Christian never raised concerns about any religious message he conveyed as
part of the “Race and Faith” presentation and, instead, the school’s administration
told Tucker that his firing was an economic decision based on his offending too many
tuition-paying parents and their children. Whether or not Faith Christian’s conflict
with Tucker was rooted in religious belief, then, is directly disputed and the facts
underlying that question have not yet been developed. Therefore, because Faith
Christian did not adequately assert or develop a defense under the church autonomy
doctrine in the district court, that defense is not properly before us. See Rumsey
Land Co. v. Res. Land Holdings, LLC (In re Rumsey Land Co.),
*20 Having thus defined the scope of this appeal, we now turn to the legal question it presents: whether the collateral order doctrine permits Faith Christian’s immediate interlocutory appeal from the district court’s decision to deny summary judgment on the “ministerial exception” defense. Before answering that question, we first review the general principles of the collateral order doctrine.
B. The Collateral Order Doctrine Generally
The general principles of the collateral order doctrine are familiar. As an
Article III court created by Congress, we “possess only such jurisdiction as is
conferred by statute.” Edward H. Cooper, 15A Federal Practice & Procedure
(“Wright & Miller”) § 3901 (2d ed. updated Apr. 2021). Here, the statutory basis for
appellate jurisdiction is 28 U.S.C. § 1291, which grants “courts of appeals . . .
jurisdiction of appeals from all final decisions of the district courts.” The district
court’s decision at issue here, denying Faith Christian summary judgment because
there remain genuinely disputed issues of material fact that must be resolved by a
fact-finder, obviously does not fit the usual definition of a “final decision”—“one
which ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment,” Catlin v. United States,
*21
orders characterized as final . . . even though it may be clear that they do not
terminate the action or any part of it.” Wright & Miller, 15A Federal Practice &
Procedure § 3911. To be immediately appealable, such orders “must [1] conclusively
determine the disputed question, [2] resolve an important issue completely separate
from the merits of the action, and [3] be effectively unreviewable on appeal from a
final judgment.” Coopers & Lybrand v. Livesay,
Immediate appeals under the collateral order doctrine are disfavored; they “are the exception, not the rule” because
too many interlocutory appeals can cause harm. An interlocutory appeal
can make it more difficult for trial judges to do their basic job—
supervising trial proceedings. It can threaten those proceedings with
delay, adding costs and diminishing coherence. It also risks additional,
and unnecessary, appellate court work either when it presents appellate
courts with less developed records or when it brings them appeals that,
had the trial simply proceeded, would have turned out to be unnecessary.
Johnson,
Courts, then, “must apply” the collateral order doctrine “with an eye towards
preserving judicial economy and avoiding ‘the harassment and cost of a succession of
*22
separate appeals from the various rulings’ in a single case.” Los Lobos Renewable
Power, LLC v. AmeriCulture, Inc.,
Of particular relevance here, the Supreme Court has recognized that when, as
here, the order being appealed involves the issue of whether there exists genuinely
disputed fact questions, the benefit of an immediate appeal is likely outweighed by
the cost of disrupting the ordinary course of litigation. In the qualified immunity
context, for example, the Court has recognized the benefit of an immediate appeal
from interlocutory orders denying government officials qualified immunity when
review of that denial involves a legal question. See Johnson,
the close connection between this kind of issue and the factual matter that will likely surface at trial means that the appellate court, in the many instances in which it upholds a district court’s decision denying summary judgment, may well be faced with approximately the same factual issue again, after trial, with just enough change brought about by the trial testimony[] to require it, once again, to canvass the record. That is to say, an interlocutory appeal concerning this kind of issue in a sense makes unwise use of appellate courts’ time, by forcing them to decide in the context of a less developed record, an issue very similar to one they may well decide anyway later, on a record that will permit a better decision.
Id. at 316–17. The Supreme Court, therefore, denied an immediate appeal from the category of orders denying summary judgment based on qualified immunity when that denial was based on the determination that there were genuinely disputed issues of material fact that remain to be resolved. Id. at 317. The Court reached that conclusion even while acknowledging that its decision “forces public officials to trial,” “[a]nd, to that extent, it threatens to undercut the very policy (protecting public officials from *24 lawsuits) that (the Mitchell Court held) militates in favor of immediate appeals” in the qualified-immunity context. [8] Id.
One other important point that we keep in mind when considering whether to
apply the collateral order doctrine is that our focus is not on whether an immediate
appeal should be available in a particular case, but instead we focus on whether an
immediate appeal should be available for the category of orders at issue:
[W]e “decide appealability for categories of orders rather than individual
orders.” Johnson v. Jones,
Los Lobos Renewable Power,
For our purposes here, the relevant category is orders preliminarily denying a religious employer summary judgment on the “ministerial exception” defense because there exist genuinely disputed issues of fact that a jury must first resolve. Next, weighing whether the collateral order doctrine should apply to that category of orders, we conclude that these orders do not fall within the small, modest, and narrow class of cases capable of satisfying this stringent collateral-order test. See Kell, 925 F.3d at 452. [9]
C. The Collateral Order Doctrine Applied Here
It is Faith Christian’s burden to establish our jurisdiction to consider
immediate appeals from this category of orders under the collateral order doctrine.
See Los Lobos Renewable Power,
Coopers & Lybrand,
1. Faith Christian has established Cohen’s second requirement Of these three requirements, Cohen’s second requirement is clearly satisfied here. There is no doubt that this category of orders—decisions denying a religious employer summary judgment on the “ministerial exception”—presents an important First Amendment issue, and that issue is separate from the merits of an employee’s discrimination claims.
2. Faith Christian has not established Cohen’s third requirement [10] a. Faith Christian has failed to establish that this category of orders denying summary judgment will be effectively unreviewable on appeal from final judgment
*27
We conclude that this category of orders, like most orders denying summary
judgment, see Ralston v. Cannon,
As we have already indicated, the Supreme Court deems the “ministerial
exception” to be, “not a jurisdictional bar,” but instead to “operate[] as an affirmative
defense to an otherwise cognizable claim . . . because the issue presented by the
exception is ‘whether the allegations the plaintiff makes entitle him to relief,’ not
whether the court has ‘power to hear [the] case.’” Hosanna-Tabor,
recognizing the “ministerial exception,” further stated that “[r]equiring a church to
accept or retain an unwanted minister, or punishing a church for failing to do so, . . .
interferes with the internal governance of the church, depriving the church of control over
the selection of those who will personify its beliefs.” Id. at 188. That language
indicates that the “ministerial exception” protects religious employers from liability,
*28
but nothing there suggests a further protection from the burdens of litigation itself.
See Peter J. Smith & Robert W. Tuttle, “Civil Procedure and the Ministerial
Exception,” 86 Fordham L. Rev. 1847, 1881-82 (2018) (noting that, when “disputed
questions of fact concerning the plaintiff’s status as a minister cannot be resolved at
the summary judgment stage, . . . the matter proceeds to trial.”). Generally, any error
a district court makes in failing to apply an affirmative defense foreclosing liability
can be reviewed and corrected after final judgment has been entered in the case. See
id. at 1881 (noting “fundamental value of the ministerial exception would not be
entirely lost by waiting for a final judgment before permitting an appeal”).
[11]
[12]
[11]
Hosanna-Tabor indicated that “[r]equiring a church to accept or retain an unwanted
minister, or punishing a church for failing to do so, . . . interferes with the internal
governance of the church.”
[12] Faith Christian argues that it might hypothetically be required to keep an unwanted minister during the pendency of this trial if it cannot raise a challenge to the district court order interlocutorily. But, of course, that issue is not present in this case because Faith Christian fired plaintiff summarily within days of hearing from disgruntled parents.
Further, Faith Christian has not presented evidence that this concern will typically be presented in other similar litigation scenarios. To the contrary, self-help would seem to be the norm for almost all such other situations.
*29
The “ministerial exception” shares the same characteristics as numerous other
defenses to liability that a church might assert in other kinds of litigation.
“[V]irtually every right that could be enforced appropriately by pretrial dismissal
might loosely be described as conferring a ‘right not to stand trial.’” Dig. Equip.,
Thus, even though other situations could just as convincingly be characterized as involving rules protecting against the burdens of going to trial, courts have almost always denied immediate appeals under the collateral order doctrine from the following: orders denying dismissal based on lack of subject matter jurisdiction, lack of personal jurisdiction, immunity from service of process, preclusion principles, an agency’s primary jurisdiction, forum non conveniens, speedy trial rights (in a criminal case), almost all denials of summary judgment, and the district court’s Faith Christian responds that it might ultimately have to respond in damages to improper discharge, but of course that would be a consequence only after trial if the plaintiff is found not to have been a minister and that the discharge was improper under Title VII. If that situation prevails, of course, the church is simply being held properly to the same standards as all other institutions and employers in America. There is no allegation or evidence that alternatives to an interlocutory collateral-order appeal now would be onerous to Faith Christian or, indeed, to most churches in America. Expedited litigation procedures such as the bifurcated procedures used here will often be adequate to address the concerns that Faith Christian raises. *30 refusal to remand a civil case to state court, to name just a few. See Dig. Equip., 511 U.S. at 873; Wright & Miller, 15A Federal Practice & Procedure §§ 3911.3, 3911.4. This litany of analogous situations underscores that courts have jealously protected the narrow scope of the collateral order doctrine and for good reason: The general lesson of these illustrations and still others is simple. The mere burden of submitting to trial proceedings that will be wasted if the appellant’s position is correct does not support collateral order appeal. Nor is it enough to show that a wrong order may cause tactical disadvantages that cannot be undone even by a second trial. The final judgment rule rests on a determination that ordinarily these costs must be borne to support the greater benefits that generally flow from denying interlocutory appeal.
Wright & Miller, 15A Federal Practice & Procedure § 3911.4 (footnotes omitted).
Those benefits include, among others, avoiding the delays and disruptions to
litigation caused by piecemeal appeals and preventing unnecessary and repetitive
appellate review. See Johnson,
b. Faith Christian’s analogy to qualified immunity is inaccurate Faith Christian counters that the “ministerial exception” is no ordinary affirmative defense; it is one rooted in the First Amendment and, therefore, the denial of summary judgment on that defense warrants an immediate appeal. In support of that assertion, Faith Christian tries to draw an analogy between the category of orders at issue here—orders denying summary judgment to a religious employer on the “ministerial exception” because there remain factual disputes that a fact-finder must resolve—and a non-church based category of orders for which courts do allow interlocutory appeals—when the district court denies a government official qualified *31 immunity based on abstract questions of law. But that analogy is not helpful to Faith Christian because these two affirmative defenses—the “ministerial exception” and qualified immunity—are simply not at all similar.
Unlike the “ministerial exception,” the Supreme Court has explicitly
recognized that qualified immunity protects government officials not only from
liability, but also from the burdens of litigation itself. See Mitchell,
In an analogous situation, the Seventh Circuit refused to permit an immediate
appeal under the collateral order doctrine from an order denying a religious employer
summary judgment on Title VII’s statutory exemptions and its general First
Amendment defense. Cf. Herx v. Diocese of Ft. Wayne-S. Bend, Inc., 772 F.3d
1085, 1088, 1090 (7th Cir. 2014). Herx reasoned that, “although the statutory and
constitutional rights asserted in defense of this suit are undoubtedly important, the
Diocese [the religious employer] has not established that the Title VII exemptions or
To the contrary, see Smith & Tuttle,
Faith Christian’s policy arguments for extending qualified immunity to private
religious employers are also not persuasive. To be sure, this Court has previously
noted some similarities between a religious employer’s First Amendment defenses
and “a government official’s defense of qualified immunity.” Bryce,
official’s claim to absolute immunity. See Mitchell,
The dissent incorrectly suggests that we are concerned about applying the collateral order doctrine generally in civil cases between private parties. Not so. As the cases cited by the dissent illustrate, immediately appealable collateral orders can arise in the course of private civil litigation. [15] Our specific concern is instead with the dissent’s unprecedented extension of immunity to private religious organizations in order to protect them from the burdens of even litigating claims brought against them by employees alleging illegal employment discrimination. Since the dissent fails to establish the necessary predicate that the “ministerial exception” protects churches from even litigating a Title VII claim, it has no other basis to seek to apply the Cohen collateral order doctrine.
Treating the “ministerial exception” as protecting religious employers from the burdens of litigation based on the First Amendment does not make sense in the bigger picture of religious organizations and the legal system. Although religious institutions enjoy some protections under the “ministerial exception,” religious institutions do not “enjoy a general immunity from secular laws.” Our Lady, 140 S. Ct. at 2060; see also Ohio C.R. Comm’n v. Dayton Christian Schs., Inc., 477 U.S.
619, 628 (1986) (“Even religious schools cannot claim to be wholly free from some
*35
state regulation.”). Religious entities can be sued on myriad theories. See
Skrzypczak,
As just one example, religious employers can be sued by their non-ministerial
employees for violating anti-discrimination employment statutes. See, e.g., Rayburn,
In summary, Faith Christian has failed to cite any case specifically treating the “ministerial exception” as protecting a religious employer from litigation itself. Such a position is contrary to our legal system’s treatment of religious entities generally— they are protected by the First Amendment, certainly, but are generally not excused from complying with generally applicable government regulation or from being haled into court.
c. The grounds Faith Christian asserts for extending qualified immunity to a private religious employer are not persuasive Faith Christian’s argument for an immediate appeal is premised on treating the “ministerial exception” like qualified immunity. The dissent adopts that argument. Both advance two justifications for extending qualified immunity from suit to private *36 religious employers—Hosanna-Tabor treated the “ministerial exception” as an immunity from suit and the “ministerial exception” is a structural limitation on the court’s authority to act. Neither justification is a correct statement of the law.
i. Hosanna-Tabor did not treat the “ministerial exception” as
immunizing a private religious employer from suit
Faith Christian contends that the Supreme Court, in first recognizing the
“ministerial exception” in Hosanna-Tabor, treated the “ministerial exception” as
immunizing religious employers, not just from liability, but from suit itself.
Hosanna-Tabor, however, never addressed the “ministerial exception” in terms of an
immunity of any kind. Instead, it treated the “ministerial exception” as an
affirmative defense and never once referred to it as an immunity from suit.
[16]
Hosanna-Tabor’s reasoning suggests only that the “ministerial exception” protects
religious employers from liability under Title VII for employment discrimination
claims asserted against the religious employer by its ministers. Tellingly,
Hosanna-Tabor held that the “ministerial exception” is “not a jurisdictional bar,” but
instead “operates as an affirmative defense to an otherwise cognizable claim . . .
because the issue presented by the exception is ‘whether the allegations the plaintiff
makes entitle him to relief,’ not whether the court has ‘power to hear [the] case.’”
In arguing to the contrary, Faith Christian and the dissent rely on
Hosanna-Tabor’s use of the word “bar” several times—i.e., stating that the
ministerial exception “bars . . . suit” over a religious employer’s decision to fire the
plaintiff, id. at 196. According to Faith Christian, the use of the word “bar,” without
more, “establishes” that the “ministerial exception” immunizes a private religious
*38
employer from suit under Title VII. However, it would be odd indeed and contrary to
the clear language and reasoning in Hosanna-Tabor if Hosanna-Tabor reached the
unprecedented result advanced by Faith Christian, extending immunity from suit to
private religious employers without expressly addressing and explaining its decision
to do so. It would be odder still for the Court to do so simply by using such a
generally applicable term as “bar.” This is especially true in Hosanna-Tabor, where
the Court expressly stated that the “ministerial exception” is “not a jurisdictional
bar,” but instead “operate[s] as an affirmative defense to an otherwise cognizable
claim . . . because the issue presented by the exception is ‘whether the allegations the
plaintiff makes entitle him to relief,’ not whether the court has ‘power to hear [the]
case.’”
The Supreme Court uses the term “bar” in many different contexts. As just
one example which unmistakably contradicts the dissent’s reliance on the word “bar”
in this case, the Supreme Court in Digital Equipment distinguished orders holding
“that an action is barred on claim preclusion principles” from orders involving an
“entitlement to ‘avoid suit altogether,’” like qualified immunity.
*39 The dissent’s contention, that Hosanna-Tabor’s use of the word “bar” all by
itself implicitly extended qualified immunity from suit to private religious employers is unpersuasive. [20]
ii. Faith Christian has not established that the “ministerial exception” is a “structural” limitation on a court’s authority sufficient to immunize private religious employers from suit under Title VII
Reiterating, Hosanna-Tabor held that the “ministerial exception” is “not a
jurisdictional bar” and does not implicate a court’s “‘power to hear [the] case.’” 565
U.S. at 195 n.4 (quoting Morrison,
[20] The dissent also relies on this court’s use of the term “adjudication” in Bryce, a
pre-Hosanna Tabor Tenth Circuit case,
*40 limitation on courts’ authority to rule on an employment discrimination claim. Faith Christian’s argument is still not persuasive.
a.
The three out-of-circuit cases on which Faith
Christian relies are inapposite
Faith Christian cites three cases from other circuits in support of its
structural-limitations argument—Conlon,
In Conlon, for example, the Sixth Circuit expressly stated that, before deciding
whether a religious employer could “waive[]” its “ministerial exception” defense, the
court first had to “consider whether the ministerial exception would otherwise apply
to the[] facts” plaintiff alleged.
In Lee, a Third Circuit case, there was no dispute that the plaintiff-employee,
the pastor of a Baptist church, qualified as a minister. Lee sued the church, alleging
the church had breached its employment contract with Lee.
In Tomic, a pre-Hosanna-Tabor case, the Seventh Circuit treated the
“ministerial exception” as a jurisdictional limitation, see
None of these three out-of-circuit cases binds this Court. Furthermore, and of
most concern, the language from each of these cases on which Faith Christian
relies—language referring to the “ministerial exception” as a “structural” or a
constitutional “limitation” on a court’s “authority”—contradicts Hosanna-Tabor’s
language explicitly stating that the “ministerial exception” is not jurisdictional and
does not implicate the question of “whether the court has ‘power to hear [the] case.’”
Beyond that significant problem, none of these three cases address the question presented here, which is whether the category of orders denying a religious employer summary judgment on its “ministerial exception” defense should be immediately appealable. Nor do any of these three cases address whether the “ministerial exception” immunizes a religious employer from ever having to litigate its minister’s employment discrimination claims. Instead, the three cases cited by Faith Christian address only whether an employer can “waive” (or forfeit) its affirmative “ministerial exception” defense, once it has been determined that the plaintiff-employee is a minister. That waiver question, which neither the Supreme Court nor this Court has addressed, is not analogous to the immunity from suit Faith Christian seeks here. For myriad reasons, then, these three cases on which Faith Christian relies are not helpful.
b.
The Establishment Clause requires that courts avoid
only excessive entanglement
Faith Christian relies on the Establishment Clause’s admonition that courts
avoid excessive entanglement with religion to argue that the “ministerial exception”
is a “structural” limitation on a court’s authority to adjudicate an employment
discrimination claim. But “[e]ntanglement must be ‘excessive’ before it runs afoul of
the Establishment Clause.” Agostini v. Felton,
Faith Christian disagrees, asserting that allowing this case to proceed to merits discovery and possibly a trial will require the district court’s excessive entanglement with religion. But determining the narrow binary factual question of whether a particular plaintiff is or is not a minister of the defendant church is not excessive entanglement. If the determination is that the plaintiff is not a minister, requiring the church to stand trial on an employment discrimination claim, or indeed other secular claims, is not excessive entanglement or even entanglement at all. If Faith Christian were entitled to immunity here it would be “immunity by ipse dixit”—immunity because Faith Christian simply declared Tucker (and indeed nearly all of its employees) to be ministers.
If this case goes to trial, it does not reasonably mean that even a jury will ever be required to resolve any religious dispute. Instead, the district court could instruct the jury to decide first whether Tucker is a minister (without regard to whether he is a faithful or feckless minister); if Tucker is determined to be a minister, the jury’s inquiry ends. Only if the jury finds that Faith Christian failed to prove that Tucker is a minister can the jury then decide the secular merits of Tucker’s Title VII (and Colorado law) claims.
To hold otherwise would place a religious employer above the law, and that is not the purpose of the “ministerial exception.”
c. Faith Christian has not cited any case where an interlocutory ruling denying dismissal of a claim against a party based on the Establishment Clause was immediately appealable
Faith Christian has not cited, nor have we found, any case permitting an immediate collateral-order appeal challenging a court’s decision to decline to dismiss secular claims based on the Establishment Clause’s prohibition against courts’ excessive entanglement with religion.
Faith Christian mentions Whole Women’s Health v. Smith,
d. Conclusion as to Faith Christian’s structural
argument
Bringing this discussion full circle, Hosanna-Tabor expressly held that the “ministerial exception” is not jurisdictional. See 565 U.S.at 195 n.4. But even if, directly contrary to Hosanna-Tabor’s clear language, we treated the “ministerial exception” as jurisdictional, that would not entitle Faith Christian to an immediate appeal. Even decisions denying dismissal based on the lack of subject matter or personal jurisdiction are generally not immediately appealable. See 15A Wright & Miller §§ 3911.3, 3911.4.
Furthermore, even if, again contrary to Hosanna-Tabor’s express language, we instead relied on the Establishment Clause to treat the “ministerial exception” as a limitation on a court’s authority to adjudicate an employee’s discrimination claim, Faith Christian would still not be entitled to an immediate appeal. Any limitation the “ministerial exception” imposes is only conditional and would not be triggered unless and until the religious employer established as a matter of fact that the employee qualified as a minister. The Establishment Clause’s admonition that courts avoid excessive entanglement with religion would have no application if the employee was found not to be a minister. And, as already explained, and as emphasized by the Supreme Court in Hosanna-Tabor and Our Lady, because the determination of whether or not an employee is a minister involves a fact-intensive inquiry, the denial of summary judgment on that issue because there are material factual disputes does not justify an immediate appeal under the collateral order doctrine.
Many of the arguments made by Faith Christian, the dissent and a number of amici to the contrary simply presuppose that the plaintiff-employee will always be a minister. Those arguments are not realistic. They ignore the possibility, presented here, that a district court will conclude that summary judgment cannot be entered for the religious employer because there are genuinely disputed material facts that a jury must resolve. If a jury’s resolution of those facts indicates that the employee is not a minister, then the Establishment Clause is not implicated.
c. Conclusion as to Cohen’s third requirement We conclude that the “ministerial exception” is not analogous to qualified immunity and does not immunize religious employers from the burdens of litigation itself. While the “ministerial exception” does protect a religious employer from liability on claims asserted by a “minister” who alleges that the employer violated anti-discrimination employment laws, any error the district court makes in failing to apply that affirmative defense can be effectively reviewed and corrected through an appeal after final judgment is entered in the case.
3. Faith Christian also cannot meet Cohen’s first requirement, that the category of orders being appealed conclusively determine the disputed question
Because we conclude that Faith Christian has failed to establish that this
category of orders satisfies the third Cohen prong, we need not address whether Faith
Christian satisfied Cohen’s first prong—that the category of orders being appealed
conclusively determine the disputed question, whether an employee qualifies as a
minister. See Coopers & Lybrand,
As with the third Cohen requirement, again the dissent can only conclude that the first Cohen requirement is satisfied if the “ministerial exception” immunizes religious employers even from suit under Title VII. But, as explained in our discussion of the third Cohen requirement, this is an incorrect characterization of the “ministerial exception. [21]
III. CONCLUSION
The Supreme Court could of course extend the scope of the collateral order doctrine to allow interlocutory appeals of cases like the one before us. But until and unless that occurs, our task is to apply current existing law, which we have tried faithfully to do. Only a very small number of orders qualify categorically as immediately appealable under the collateral order doctrine. Faith Christian has not shown that the category of orders at issue here—decisions denying a religious employer summary judgment on the employer’s “ministerial exception” defense because of a genuine dispute of material issues of fact—cannot be effectively reviewed at the conclusion of the litigation. We, therefore, do not have jurisdiction under the collateral order doctrine to consider this appeal and, accordingly, DISMISS it for lack of jurisdiction.
district court explained the evidence, Faith Christian’s evidence was primarily
self-serving documents describing Tucker’s position, like an extension agreement and
teacher handbook, while Tucker’s evidence addressed the actual “facts and
circumstances of his employment.” (Aplt. App. 284.) The district court noted that, if
a jury believed Tucker’s evidence, the jury “could rationally” find that he was not a
“minister.” Id. Furthermore, Faith Christian’s documents on which the dissent relies
appear to classify all teachers and indeed all staff members as “ministers.” Such an
indiscriminate blanket statement giving ministerial status to essentially its entire staff
is contrary to the case-specific inquiry as to whether a given employee should be
deemed a “minister” for purposes of the “ministerial exception.” See Fratello, 863
F.3d at 207 (2d Cir.) (noting that religious employer “cannot insulate itself from . . .
liability by bestowing hollow ministerial titles upon many or all of its employees”);
see also Tomic,
Gregory Tucker v. Faith Bible Chapel, No. 20-1230 BACHARACH , J., dissenting
This case involves an employment dispute and the ministerial
exception. This exception stems from the Religion Clauses of the First
Amendment and bars courts from considering employment disputes
between religious bodies and their ministers.
Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC
,
The defendant (Faith Bible Chapel) sought summary judgment [1] based on the ministerial exception, arguing that the plaintiff (Mr. Gregory Tucker) had been employed as a minister. But the district court denied summary judgment and reconsideration. [2] Faith Bible appeals, arguing that
appellate jurisdiction exists under the collateral-order doctrine and
*52 the ministerial exception bars relief. [3] The majority concludes that we lack jurisdiction, but I respectfully disagree. In my view, we have appellate jurisdiction under the collateral- order doctrine. With jurisdiction, we should reverse because the undisputed evidence shows that Mr. Tucker was acting as a minister when his employment ended. So I respectfully dissent.
I. After his employment ended, Mr. Tucker sued.
Mr. Tucker worked as a teacher and as a Director of Student Life/Chaplain at a religious school, Faith Christian Academy. But parents of the students bristled when Mr. Tucker led a program on race and faith, and school officials later stripped Mr. Tucker of his position as a Director of Student Life/Chaplain. About a month later, school officials also terminated his employment as a teacher.
The termination led to a suit against the school’s operator, Faith Bible, under Title VII and Colorado law for retaliating against Mr. Tucker’s anti-racist statements. In response, Faith Bible attributes the termination to a disagreement about Mr. Tucker’s interpretation of scriptural passages.
The substantive issue on appeal is whether a genuine dispute of material fact existed regarding Mr. Tucker’s status as a minister.
II. We should consider all of Mr. Tucker’s jurisdictional challenges.
Faith Bible argues that Mr. Tucker conceded multiple jurisdictional
arguments by failing to respond to them when he briefed jurisdiction. But
parties cannot waive challenges to appellate jurisdiction.
Tuck v. United
Servs. Auto. Ass’n
,
III. The ministerial exception involves a defense against suit, not just
against liability.
Consideration of these jurisdictional challenges turns on the nature of the ministerial exception. Mr. Tucker considers this exception like any ordinary affirmative defense, serving only the personal interests of private individuals to avoid personal liability for private wrongs. In my view, however, the ministerial exception also serves as a structural safeguard against judicial meddling in religious disputes. As a structural safeguard, the ministerial exception protects religious bodies from the suit itself— unlike most affirmative defenses that protect only against liability.
A. Affirmative defenses that immunize a party from suit must serve some value of a high order.
The nature of the ministerial exception matters because appellate
jurisdiction ordinarily arises only after the district court has entered a final
order. 28 U.S.C. § 1291. But some orders warrant earlier appellate review
*54
because they concern not just a defense against liability but also a “right
not to stand trial.”
Mitchell v. Forsyth
,
We proceed cautiously when characterizing a defense as a protection
from the suit itself rather than just liability.
Will v. Hallock
,
Consider qualified immunity, which shields government officials
from suits for damages unless the official violates a clearly established
federal constitutional or statutory right. The Supreme Court treats qualified
immunity as “an
immunity from suit
rather than a mere defense to liability”
because the costs of litigation “can be peculiarly disruptive of effective
*55
government.”
Mitchell v. Forsyth
,
distracting “officials from their governmental duties,”
“inhibit[ing] discretionary action,” and
“deterr[ing] . . . able people from public service.”
Id.
(quoting
Harlow v. Fitzgerald
,
Consider also absolute immunity, which is an affirmative defense
that prevents civil liability for official acts by certain governmental actors.
Nixon v. Fitzgerald
,
And consider Eleventh Amendment immunity, which bars federal
suits against states.
P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.
,
A final example involves the Double Jeopardy Clause, which protects
an individual from being punished twice for the same offense.
Abney v.
United States
,
B. The ministerial exception protects values of a high order by carrying out a constitutional mandate and preserving the structural separation of church and state.
The ministerial exception also advances values of a high order, protecting religious bodies from burdensome litigation over religious doctrine and preserving the structural separation of church and state. These values compel courts to resolve application of the ministerial exception at an early stage of the litigation. Id. at 350–51.
The unique nature of the ministerial exception stems from its origins
in the Free Exercise and Establishment Clauses of the First Amendment,
which “protect the right of churches and other religious institutions to
decide matters ‘of faith and doctrine’ without government intrusion.”
Our
*57
Lady of Guadalupe Sch. v. Morrissey-Berru
,
The First Amendment’s protection extends to religious bodies’
employment matters. Without limitations on judicial meddling in
employment disputes, religious bodies might skew their employment
decisions. For example, a religious body might hesitate to fire a minister
even in the face of doctrinal disagreements. “There is the danger that
churches, wary of EEOC or judicial review of their decisions, might make
them with an eye to avoiding litigation or bureaucratic entanglement rather
than upon the basis of their own personal and doctrinal assessments of who
would best serve the pastoral needs of their members.”
Rayburn v. Gen.
Conf. of Seventh-Day Adventists
,
The ministerial exception not only protects religious bodies from the need to skew their employment decisions, but also advances three structural values:
1. Protection of a religious body’s internal governance
2. Limitation on governmental power over religious matters
3. Prevention of judicial encroachment in matters of religion
*58
First, in keeping with the Free Exercise Clause, the ministerial
exception protects the internal governance of religious bodies by allowing
them “to shape [their] own faith[s] and mission[s] through [the religious
bodies’] appointments.”
Id.
The right to independently make employment
decisions “ensures that the authority to select and control who will
minister to the faithful—a matter ‘strictly ecclesiastical,’—is the church’s
alone.”
Id.
at 194–95 (quoting
Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church in N. Am.
,
Second, under the Establishment Clause, the ministerial exception
serves as a structural limit on governmental power over religious matters.
See Conlon v. InterVarsity Christian Fellowship/USA
,
Third, the ministerial exception confines the judiciary to issues
requiring expertise in law, preventing judicial encroachment in matters of
religion.
Tomic v. Cath. Diocese of Peoria
,
Given these structural values, three circuits have held that the
ministerial exception—unlike most other affirmative defenses—can’t be
waived.
See Lee v. Sixth Mount Zion Baptist Church of Pittsburgh
, 903
F.3d 113, 118 n.4 (3d Cir. 2018) (concluding that “the Church is not
deemed to have waived [the ministerial exception] because the exception is
rooted in constitutional limits on judicial authority”);
Conlon v.
InterVarsity Christian Fellowship/USA
,
The majority argues that the three opinions are distinguishable because they
didn’t address whether the ministerial exception provides immunity from “litigation” (as opposed to immunity from liability),
addressed only whether a religious body could “waive (or forfeit) a ‘ministerial exception defense,’” and *61 addressed waiver only after explaining that the claimant was a minister.
These purported differences mean little.
The majority is incorrect as to the first purported difference: The
Sixth Circuit
did
treat the ministerial exception as a bar against the suit
itself. In
Conlon
, the Sixth Circuit concluded that the ministerial exception
was no longer waivable because the Supreme Court’s opinion in
Hosanna-
Tabor
had treated the ministerial exception as a bar to suit rather than just
as a defense against liability.
Conlon v. Intervarsity Christian
Fellowship/USA
,
The second purported difference fails to consider the courts’ reasons
for treating the ministerial exception as nonwaivable. In
Lee
, for example,
the parties didn’t raise the ministerial exception.
Lee v. Sixth Mount Zion
Baptist Church of Pittsburgh
,
Finally, the majority states that the three courts discussed the merits
(the claimant’s status as a minister) before discussing the inability to
waive the ministerial exception. This statement is incorrect because
Lee
discussed waiver simultaneously with the merits.
Lee
,
C. Because the ministerial exception advances interests of a high order, the issue should be decided early in the litigation.
The ministerial exception thus protects interests of a high order by
maintaining the structural division between religious and governmental
realms. Given these important interests, early resolution is necessary to
avoid costly, burdensome litigation between religious bodies and their
*63
ministers.
[4]
See Rayburn v. General Conference of Seventh-Day Adventists
,
D. The Supreme Court has characterized the ministerial exception as a bar to the suit (rather than just as a defense against liability).
The Supreme Court held in
Hosanna-Tabor
that the “ministerial
exception
bars . . . a suit
” over the religious body’s decision to fire the
plaintiff.
The majority suggests that I’m putting too much stock in the
Supreme Court’s choice of a verb (
bar
). But I’m putting little stock in the
verb
bar
. The Supreme Court concluded that that the ministerial exception
serves to “bar[] . . . a suit.”
Hosanna Tabor
,
The Sixth Circuit has addressed this aspect of
Hosanna-Tabor
. Prior
to
Hosanna-Tabor
, the Sixth Circuit had held that a religious body could
waive the ministerial exception.
Hollins v. Methodist Healthcare, Inc.
,
1. “[T]he Establishment Clause . . .
prohibits
government
involvement in ecclesiastical matters.”
2. “It is ‘
impermissible
for the government to contradict a
church’s determination of who can act as its ministers.’”
*66
Id.
(alteration in original) (quoting
Hosanna-Tabor
,
Despite the Supreme Court’s characterization of the ministerial
exception as a bar to suit, Mr. Tucker argues that we should not construe
the ministerial exception as “a jurisdictional bar.” Appellee’s
Jurisdictional Memorandum at 11. He is correct: The ministerial exception
doesn’t prevent the district court from hearing the case. So the ministerial
exception doesn’t prevent jurisdiction over the subject-matter or the
parties. In this respect, the ministerial exception resembles other
nonjurisdictional defenses like qualified immunity and absolute immunity.
See Nevada v. Hicks
,
E. These values are not undermined by Mr. Tucker’s contrasts with other immunities.
The ministerial exception does bear some differences with other
affirmative defenses like qualified immunity and absolute immunity. The
primary difference involves waivability: Unlike those immunities, the
ministerial exception is considered nonwaivable because of its structural
*67
character.
See Hicks
,
First, Mr. Tucker argues that the ministerial exception does not
provide blanket immunity from all civil liability. He’s right about that.
See
Our Lady of Guadalupe Sch. v. Morrissey-Berru
,
The ministerial exception involves only an immunity from trial in
employment
disputes between a religious body and its ministers.
See Our
Lady of Guadalupe
,
Because of this limitation, the majority points out that religious
employers can be sued “by non-ministerial employees” for discriminating
in employment. Maj. Op. at 35. But this distinction proves little. We
protect a religious body’s authority over the employment of ministers
because of the Religion Clauses.
See Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC
,
Second, Mr. Tucker argues that the benefits from protections like
qualified immunity should be reserved for government officials, not private
parties.
[7]
As the majority observes, however, the collateral-order doctrine
*69
applies to private parties as well as governmental parties.
Eisen v. Carlisle
& Jacquelin
,
Finally, Mr. Tucker urges us to follow the Seventh Circuit Court of
Appeals, stating that it has declined to apply the collateral-order doctrine
to the ministerial exception.
See Herx v. Diocese of Fort Wayne-South
Bend, Inc.
,
In sum, the ministerial exception protects interests like those advanced by qualified immunity, absolute immunity, and Eleventh Amendment immunity. For example, the ministerial exception
protects the First Amendment right of free exercise by insulating religious bodies from costly and burdensome litigation over purely religious decisions on who may serve as a minister and
functions as a structural limitation, preserving religious independence and the separation of church and state. These functions distinguish the ministerial exception from other run-of- the-mill affirmative defenses to liability. Given these differences, the ministerial exception protects not only against liability but also against the suit itself.
F. The majority errs by discounting the value of early judicial review based on unidentified factual disputes.
When addressing qualified immunity, district courts sometimes deny summary judgment based on factual disputes. See Sawyers v. Norton , 962 F.3d 1270, 1281 (10th Cir. 2020). The majority asserts that in this circumstance, the Supreme Court disallows “an immediate appeal” because the costs outweigh the benefits. Maj. Op. at 21–22. Based on this assertion, the majority argues that we should disallow an immediate appeal because the district court denied Faith Bible’s motion for summary judgment based on factual disputes. Id. at 23–24 n.8.
The majority’s argument starts with a faulty premise: The district
court didn’t identify any factual disputes. So we need
not
disallow “an
immediate appeal.” The majority disagrees, stating that the court did
identify a factual dispute—Mr. Tucker’s status as a minister. But status as
a minister is a question of law, not fact.
See Conlon v. Intervarsity
Christian Fellowship/USA
,
Though the district court found a disagreement over ministerial status, the court didn’t identify any evidentiary disputes over Mr. Tucker’s title, job, or duties. The court instead referred only to a disagreement as to “the totality of the facts and circumstances of [Mr. Tucker’s] employment.” Appellant’s App’x vol. 1, at 281.
In qualified immunity cases, when the district court doesn’t identify any factual disputes, we
“review the record to determine what facts the district court
likely assumed,”
Armijo ex rel., Chavez v. Wagon Mound Pub.
Schools
,
IV. The ministerial exception satisfies the collateral-order doctrine.
Generally, appellate jurisdiction exists only after the district court
has issued a final order. 28 U.S.C. § 1291. But we can sometimes deem a
narrow class of orders final even if they do not end the litigation.
Gelboim
v. Bank of Am. Corp
,
The collateral-order doctrine contains three elements: 1. The order conclusively determined an issue.
2. That issue is completely separate from the merits. 3. The decision on this issue would be effectively unreviewable after the final judgment.
Los Lobos Renewable Power, LLC v. Americulture, Inc.
,
Given the district court’s ruling and the ministerial exception’s interests of a high order, the three elements of the collateral-order doctrine are met.
1. The district court’s order conclusively determined the applicability of the ministerial exception.
The first element requires a district court’s conclusive determination
of the issue.
See
pp. 22–23, above. A district court conclusively decides an
issue “if it is not subject to later review or revision by the district court.”
Los Lobos Renewable Power, LLC v. Americulture, Inc.
,
The district court’s decision conclusively determines the religious body’s immunity from suit. If the court were to defer consideration to the end of the case, the religious body would lose its protection from the trial itself. Subjected to suit, the religious body could suffer judicial meddling in religious doctrine, expensive and time-consuming litigation over the content and importance of religious tenets, and blurring of the line between church and state. See Part III(B)–(C), above.
Mr. Tucker points out that the religious body could ultimately appeal
when the case finishes. But that’s also true of qualified immunity, absolute
immunity, and Eleventh Amendment immunity. Though the defendants
might ultimately prevail based on these immunities, deferral of an appeal
*75
would conclusively determine the need to stand trial on the plaintiff’s
claims.
See Mitchell v. Forsyth
,
Mr. Tucker also argues that the district court declined to decide the issue rather than conclusively deny application of the ministerial exception. The district court did say that it was deferring consideration of Mr. Tucker’s status as a minister. But the ruling effectively denied Faith Bible’s claim to immunity from suit. The ruling on the ministerial exception thus satisfies this element of the collateral-order doctrine. See id. at 537 (stating that “the court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiff’s allegations” (emphasis in original)).
The majority does not definitively answer whether the first element is satisfied here. Instead, the majority states that the element is likely absent because of genuine issues of disputed fact. But the district court doesn’t identify any factual disputes. See Part III(F), above. So I would conclude that the district court’s order satisfied the first element, conclusively denying Faith Bible’s immunity from suit.
2. The applicability of the ministerial exception is completely
separate from the merits of the employment dispute.
The second element entails complete separation from the merits.
See
pp. 22–23, above. Complete separation exists when the issue differs
significantly “from the fact-related legal issues” underlying the merits of
*76
the plaintiff’s claim.
Los Lobos Renewable Power, LLC v. Americulture,
Inc.
,
3. If an appeal must await entry of a final order, the immunity from suit would become unreviewable.
The third element is satisfied when interlocutory review is needed because the matter would otherwise become unreviewable. See pp. 22–23, above.
Mr. Tucker points out that when the district court denies summary judgment on the ministerial exception, the defendant can reassert the issue later, moving for judgment as a matter of law or even filing a post- judgment motion. But that’s true of other defenses like qualified immunity or absolute immunity.
Though appellate courts can address the ministerial exception (like qualified immunity or absolute immunity) at the end of the case, deferral of the appeal could subject the religious body to burdensome discovery, trial, and post-judgment motions. The eventual ability to appeal would thus come at a cost, protecting the religious body from liability but not from the suit itself. See Part III(B)–(C), above.
* * *
For these reasons, the denial of the ministerial exception on summary judgment satisfies the collateral-order doctrine. We thus have jurisdiction. V. I would conduct de novo review of the denial of summary
judgment.
On the merits, we should conduct de novo review.
Skrzypczak v.
Roman Cath. Diocese
,
When applying this standard to assess qualified immunity, we credit
the district court’s assessment of facts that a reasonable jury could find.
See Estate of Booker v. Gomez
,
VI. The ministerial exception applies as a matter of law.
The ministerial exception bars courts from considering an
employment claim brought by a minister against a religious body.
Our
Lady of Guadalupe Sch. v. Morrissey-Berru
,
A. Multiple factors bear on his status as a minister.
No rigid formula exists for determining whether an employee worked as a minister. Hosanna-Tabor Evangelical Church & Sch. v. EEOC. , 565 U.S. 171, 190 (2012). Without a rigid formula, we must consider the Supreme Court’s two cases involving teachers at religious schools: Hosanna-Tabor and Our Lady of Guadalupe .
In Hosanna-Tabor , the Supreme Court considered four factors to characterize a religious school’s teacher as a minister:
1. whether the school had held the teacher out as a minister, 2. what the teacher’s title had been and what her religious education had entailed,
3. whether the teacher had held herself out as a minister, and 4. what the teacher’s job responsibilities had been.
Id. at 191–92. In applying these factors, the Court observed that the school had held the teacher out as a minister, that she had retained the title of a “commissioned minister,” that she had identified as a minister “call[ed] to religious service,” and that her duties had “reflected a role in conveying the Church’s message and carrying out its mission.” Id. Given these circumstances, the Court regarded the teacher as a minister. Id.
In
Our Lady of Guadalupe
, the Supreme Court regarded two teachers
at a religious school as ministers.
The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work live at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.
Id. at 2055.
In determining that the two teachers had worked as ministers, the Court considered three factors:
1. “[T]hey both [had] performed vital religious duties.” 2. They had been “obliged to provide instruction about the Catholic faith” and “to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.”
3. The religious school [had] “expressly [seen the two teachers] as playing a vital part in carrying out the mission of the church.” Id. at 2066.
Relying on
Hosanna-Tabor
and
Our Lady of Guadalupe
, Faith Bible
argues that Mr. Tucker worked as a minister in his capacities as a teacher
and as a Director of Student Life/Chaplain.
[10]
In addressing this argument,
we credit the district court’s assessment of the facts that a reasonable jury
could have found.
See Roosevelt-Hennix v. Prickett
,
B. As a Director of Student Life/Chaplain, Mr. Tucker was a minister.
Under Mr. Tucker’s version and other undisputed facts, he qualified as a minister in his role as Director of Student Life/Chaplain.
Mr. Tucker testified that he had held himself out to the students not only as “the Director of Student Life,” but also as the “Chaplain.” Id. at 373. As the Chaplain, Mr. Tucker had acknowledged focusing on the students’ “physical, rational, and spiritual wellbeing.” Id. His focus on spiritual wellbeing is reflected in
his title and training,
the school’s explanation to Mr. Tucker of his role, and his responsibilities.
Title and Training
From August 2014 to January 2018, Mr. Tucker served as a Director of Student Life/Chaplain at Faith Christian Academy. Appellant’s App’x vol. 1, at 278. The parties dispute whether
Mr. Tucker had the primary title of “Director of Student Life” or “Chaplain” and
Faith Bible told Mr. Tucker that he was not a minister for tax purposes.
Though Mr. Tucker disputes his primary title, he described his
position as “Director of Student Life/Chaplain” and admitted that his
employment contract and extensions had referred to his job as “Chaplain.”
*82
Id.
at 208–09, 271, 277, 280. These references bear significance because
the Supreme Court has considered job titles in determining the ministerial
status.
Our Lady of Guadalupe
,
The School’s Explanation of Mr. Tucker’s Role
The school’s explanation of Mr. Tucker’s role, though not
dispositive, is “important.”
Our Lady of Guadalupe
,
In 2017, Mr. Tucker signed the school’s Extension Agreement for the position of Chaplain. The agreement states:
The Superintendent of Faith Christian Academy . . . discussed with Employee the necessity that the hand of the Lord be on Employee and that he/she exhibits the gift necessary to perform in the position of Chaplain. Employee expressed his/her belief that he/she has this gift and that God has called him/her to minister this gift at [the school].
Appellant’s App’x vol. 1, at 99, 275.
Under the extension agreement, the school required that the “hand of the Lord” be on Mr. Tucker as its “Chaplain.” Mr. Tucker thus accepted a call to minister to the school community, and the school held Mr. Tucker out as a religious leader.
Responsibilities
As a Director of Student Life/Chaplain, Mr. Tucker bore responsibility for religious leadership. He emphasizes that these responsibilities included
organization of “religiously oriented” chapel services, spiritual guidance and counseling,
endorsement of Christianity,
integration of “a Christian worldview” in his teaching, “a passionate relationship with Jesus Christ,” and assistance to students in developing their relationships with Jesus Christ.
Appellee’s Jurisdictional Memorandum at 3, 5; Appellee’s Resp. Br. at 47. These characterizations are supported by the summary-judgment record, which showed Mr. Tucker’s organization of “weekly chapel meetings” consisting of “‘assemblies or symposiums’” where people with a variety of religious or nonreligious perspectives would address “matters of interest at the school.” Appellant’s App’x vol. 1, at 281.
The chapels included some secular activities, like “announcements, awards, rallies, student election speeches, and other ordinary high school- related matters.” Id. But Mr. Tucker describes the chapels as “religiously- oriented discussion groups.” Appellee’s Jurisdictional Memorandum at 3.
In a presentation to students, Mr. Tucker described his duties as “the physical, relational, and spiritual wellbeing” of students and planning “chapels, retreats, outreach projects, and student mentoring opportunities that are designed to provide opportunities for student spiritual growth.” Appellant’s App’x vol. 1, at 271.
Mr. Tucker’s extension agreement also required obedience to
scripture and attendance at prayer sessions and church services.
Id.
at 100,
275. Though Mr. Tucker had some secular duties as a Director of Student
Life/Chaplain, many aspects of his work were religious.
See Scharon v. St.
Luke’s Episcopal Presbyterian Hosps.
,
* * *
Based on all of the circumstances, I would conclude that the undisputed facts show that Mr. Tucker acted as a minister in his capacity as a Director of Student Life/Chaplain.
C. Mr. Tucker also served as a minister in his role as a teacher. Mr. Tucker also qualified as a minister in his role as a teacher. Title and Training
Mr. Tucker not only served as a Director of Student Life/Chaplain but also taught at the school from August 2000 to July 2006 and August 2010 to February 2018. Id. at 278–279. The school’s handbook gave teachers the title of “minister.” Id. at 276.
The title as a minister reflected “a significant degree of religious
training.”
Hosanna-Tabor
,
he had participated in Campus Ministry, Campus Crusade for Christ, Young Life International, and Malibu Presbyterian college group leadership and worship team, he had worked “extensive[ly] . . . in ministry,” he was “a dedicated Christian,” and
he had a “Christian philosophy of education.” Appellant’s App’x vol. 2, at 471. His asserted credentials bore the traditional hallmarks of a job in the ministry.
In his declaration, Mr. Tucker denies “specific training in the Bible”
in comparison to teachers who taught “Bible” as a subject. Appellant’s
*86
App’x vol. 1 at 206. But his own emphasis of his religious background and
relevant credentials reflects an awareness of his religious duties.
See
Grussgott v. Milwaukee Jewish Day Sch., Inc.
,
Mr. Tucker insists that no religious training was required for his job.
But the Supreme Court has stated that the ministerial exception doesn’t
require religious training. In
Our Lady of Guadalupe
, for example, the
Supreme Court found satisfaction of the ministerial exception despite the
claimant’s “limited formal religious training.”
The School’s Explanation of Mr. Tucker’s Role The teacher handbook also reflects the religious character of the job: To become a teacher or full time worker at Faith Christian Academy is a calling from the Lord Jesus Christ to minister. You are joining this ministry, not as an employee, but as a minister to [the school’s] students and families. [The school]’s ministry focus emphasizes the following items:
1. [The school] desires to provide an academic program that is based on the scriptural principles found in the Word of God, the Holy Bible. [Academy] teachers are committed to the *87 integration of biblical truth within each academic and extra- curricular discipline. [11] Additionally, teachers are responsible to facilitate godly character development, teach good study habits and encourage academic excellence. Each teacher must be thoroughly prepared and use effective instructional methods and techniques.
2. Although [the school] is a Christian academic institution, an additional emphasis is placed upon the spiritual life of all students. [The school]’s desire is to train and lead students into attitudes and habits, which will bring them to Christ-like maturity. This includes encouraging all students to develop a prayer life, a passion to share to [sic] Gospel message, and characteristics such as honesty, humility, purity, faithfulness, love, and service. . . . [12]
3. All staff members must be aware of the importance of our ministry to one another. Each teacher needs to be open to the Holy Spirit to offer words of encouragement, prayer, and concern for one another. It is important that teachers be willing to work as a team, make and receive positive suggestions, stand, as much as possible, with fellow teachers (especially in times of hardship), and guard the reputation of others. Trusting in the Lord in areas of personal needs as well as school needs and looking to Him as the primary source of wisdom, help, knowledge, and strength is critical.
Appellant’s App’x vol. 1, at 109, 276 (emphasis added).
Given the school’s explanation of teachers’ roles, the qualifications included religious dedication. For example, when Mr. Tucker applied, he had to say “[w]ithout mental or other reservation” that he believed in
the divine inspiration and infallibility of the Bible, the existence of one God in the persons of God the Father, God the Son, and God the Holy Spirit,
the virgin birth,
the Lord Jesus Christ’s deity, sinless humanity, atoning death, bodily resurrection, ascension to his Father’s right hand, and future return in power and glory,
the need for every person to receive the gift of eternal life from Jesus Christ in order to reach heaven, the ministry of the Holy Spirit,
the church as the spiritual body headed by Christ, the principle of baptism through immersion, and the eternal existence of all people in heaven or hell. Appellant’s App’x vol. 2, at 419. These requirements reflect Faith Bible’s consideration of teachers as religious leaders.
Responsibilities
Although Mr. Tucker referred to himself as a teacher rather than a minister, he taught at a Bible-based religious school. So he taught not only science, a secular subject, but also two classes in the Bible Department *89 called “Leadership” and “Worldviews and World Religions.” And Mr. Tucker’s duties as a teacher included four religious responsibilities:
1. “Live in a vital relationship with God (Father, Son and Holy Spirit) as [the teacher] communicate[s] with Him through prayer and the Scriptures. John 15, Col. 3:25.” 2. “Demonstrate daily a relationship with Jesus that is filled with grace and truth. John 1:14.”
3. “To the greatest extent possible, live at peace with all, abstain from all appearance of evil, and refrain from gossip. Romans 12:18, 1 Thessalonians 5:16–18 & Proverbs 26:20.” 4. “Discern and follow the leading of the Holy Spirit throughout the day. Gal. 5:16–18.”
Id.
at 213;
see also Our Lady of Guadalupe
,
We address not only Mr. Tucker’s responsibilities but also the
criteria used to evaluate his performance in determining his ministerial
status.
Our Lady of Guadalupe
,
Mr. Tucker points out that he didn’t need to promote any particular
Christian beliefs over others.
[13]
He cites an out–of–circuit case,
Dole v.
Shenandoah Baptist
, in arguing that teaching “all classes . . . from a
pervasively religious perspective” and “subscrib[ing] to the Shenandoah
statement of faith” were insufficient to trigger the ministerial exception.
Dole
isn’t persuasive because it preceded
Hosanna-Tabor
and
Our
Lady of Guadalupe
. Given the guidance from
Hosanna-Tabor
and
Our Lady
of Guadalupe
, a court would need to consider Mr. Tucker’s obligation to
teach from a Christian perspective, one that endorsed Christianity’s
“worldview,” “integrate[d] a Christian worldview in his teachings,” and
“endorse[d] Christianity in general terms.” Appellant’s App’x vol. 1
at 279–80;
see Hosanna-Tabor
,
D. The alleged denial of a tax benefit doesn’t prevent application of the ministerial exception.
On appeal, Mr. Tucker argues that a factual issue existed because
Faith Bible had denied a tax benefit to him on the ground that he wasn’t a
minister. Mr. Tucker’s appellate brief contained a single sentence
addressing the issue, stating: “[W]hen he asked the School about a tax
benefit available to ministers, he was expressly told he ‘did not qualify
because [he] was not a minister.’” Appellee’s Corrected Resp. Br. at 45
(quoting Appellant’s App’x vol. 1, at 210).
[14]
This sentence does not supply
a meaningful reason to question Mr. Tucker’s status as a minister.
See
Lenox MacLaren Surgical Corp. v. Medtronic, Inc.
,
Even if we were to consider this assertion, it would not prevent summary judgment. Under the federal tax code, taxpayers enjoy a tax deduction if they
qualify as “minister[s] of the gospel” and
obtain compensation consisting of rental allowances or the rental value of the homes furnished to them as part of their salary.
26 U.S. § 107.
The requirements differ for the ministerial exception and the tax
deduction.
See
Sally R. Wagenmaker, Ryan Oberly, & Paul Wintors,
Religious Tax Reclassification for Public Charities
, 33 Taxation of
Exempts 34, 40 (2022) (stating that the requirements differ significantly
for the ministerial exception and status under the tax code as a minister of
the gospel). For example, status as a “minister of the gospel” requires an
ordination, a commission, or a license “to perform sacerdotal functions.”
Kirk v. Commissioner
,
Even if Mr. Tucker were a “minister of the gospel” under the tax code, the tax deduction would be available only if his compensation package included free housing or a rental allowance. And he hasn’t alleged either free housing or a rental allowance. So Mr. Tucker’s asserted *93 ineligibility for the tax deduction lacks any bearing on application of the ministerial exception.
* * *
A religious body may be entitled to summary judgment under the
ministerial exception even when the pertinent factors cut both ways.
See,
e.g.
,
Grussgott v. Milwaukee Jewish Day Sch., Inc.
,
VII. Conclusion
I would conclude that
jurisdiction exists under the collateral-order doctrine and Faith Bible enjoyed immunity under the ministerial exception. Given these circumstances, I would reverse the denial of Faith Bible’s motion for summary judgment. [15]
Notes
[1] Tucker also asserted a claim under Title VI of the 1964 Civil Rights Act, which the district court dismissed. That dismissal is not at issue in this appeal.
[2] There are at least three questions underlying the determination of whether the “ministerial exception” applies in a given case: 1) Is the employer a religious organization entitled to assert the “ministerial exception” defense? 2) Is the employee a “minister”? And 3) is the claim that the employee is asserting against the employer the type of claim that is subject to the “ministerial exception”? As to the first question, Tucker does not challenge on appeal the district court’s ruling that Faith Christian could invoke the “ministerial exception.” It is the second question— whether Tucker qualifies as a “minister—that is the subject of this appeal. As to the third question, no one disputes that Tucker’s Title VII and state law wrongful discharge claims are subject to the “ministerial exception.” See Puri v. Khalsa, 844
[4] The dissent, as well as Faith Christian and amici, gloss over the fact that the threshold question that triggers the application of the exception—whether the plaintiff-employee qualifies as a minister—requires a fact-intensive inquiry. In light of that, there will often be cases (like the case before us) where the district court will be unable to resolve that threshold question at the motion-to-dismiss or summary-judgment stage of litigation. In those cases, the jury will have to resolve the factual disputes and decide whether an employee qualifies as a “minister” before the affirmative “ministerial exception” defense is triggered.
[5] In arguing on appeal that it has asserted a church autonomy defense all along, Faith Christian only points to several sentences in its converted summary judgment motion taken out of context.
[6] In a different context, the dissent notes that several circuits have held that a religious employer cannot waive (or forfeit) a “ministerial exception” defense. But this circuit has never addressed that question, and we need not do so here because there is no issue of waiver or forfeiture in the case before us.
[7] Whether a religious employer can take an immediate appeal under the collateral order doctrine from a district court’s decision not to dismiss claims based on the church autonomy doctrine presents difficult questions that differ from the issues we must address here. Because the church autonomy doctrine is not at issue here, Faith Christian’s and the dissent’s reliance on cases addressing that doctrine and the
[8] There are cases in the qualified-immunity context where a court will construe
disputed facts in the plaintiff’s favor in order to answer the legal question of whether
the plaintiff has asserted a clearly established constitutional violation. Here, on the
other hand, the question of whether an employee is a “minister” is largely a factual
question. The district court in this case held that based on the parties’ competing
evidence, a rational jury could find either that Tucker was or was not a “minister.”
That is quintessentially a factual determination for the jury. Furthermore, that factual
question at issue here is similar to the qualified-immunity question of fact that the
Supreme Court declined to address as a collateral order in Johnson—whether there
was sufficient evidence that a jury could find either that certain defendant police
officers were, or were not, present when other police officers allegedly beat the
plaintiff. See
[9] The dissent makes clear that it deems the district court in this particular case to have erred in denying Faith Christian summary judgment on its affirmative “ministerial exception” defense. The dissent, for example, notes that in this case the district court failed adequately to identify exactly what factual disputes preclude summary judgment. We disagree. The district court clearly stated that, based on the parties’ competing evidence, which the court laid out in some detail, a reasonable jury could find either that Tucker was, or was not, a minister. Nonetheless, the dissent’s assertion that the district court erred in denying summary judgment in this particular case is the wrong focus for deciding whether the category of orders at issue here, orders denying a religious employer summary judgment on its affirmative “ministerial exception” defense because there remain material factual disputes that a jury must decide, should always be immediately appealable.
[10] We address Cohen’s third requirement before we address Cohen’s first requirement because our analysis on the first requirement rests on some of the same analysis pertaining to Cohen’s third requirement, and it seems to be the more efficient way to address Faith Christian’s failure to satisfy either of these requirements.
[14] For similar reasons, courts have recognized the need for immediate appeals under the collateral order doctrine from categories of orders denying a government
[15] Los Lobos Renewable Power, LLC v. AmeriCulture, Inc.,
[16] Similarly, immunity is never mentioned or suggested by the Supreme Court in its later, closely related case of Our Lady.
[17] As noted previously, nothing in this litigation requires Faith Christian to employ an unwanted minister. It has the power, and has already exercised that power, to discharge Tucker. The only issue in this case is damages. If at trial Faith Christian shows that the discharge was protected under the “ministerial exception” or if it is otherwise defensible, Faith Christian would not have to respond in damages for its decision.
[18] The Supreme Court has more generally warned courts to be cautious when using
the label “jurisdictional.” See Kontrick v. Ryan,
[19] Hosanna-Tabor simply did not address whether any church defense immunizes a religious employer from litigation on a minister’s employment discrimination claims. A fair reading of that case as a whole does not suggest any conscious attempt by the
[21] Because Faith Christian has failed to meet either Cohen’s first or third requirements for immediate appeal under the collateral order doctrine, we have no interlocutory jurisdiction to address the merits of the district court’s decision to deny Faith Christian summary judgment on its “ministerial exception” defense. The dissent addresses the merits of that question and concludes the district court erred; that is, the dissent concludes that the factual question of whether Tucker was a “minister” should be taken from a jury and decided in the first instance by this court. We have two concerns about the dissent’s merits discussion. First, the dissent contends that the district court failed to identify specific factual disputes that preclude summary judgment. But that is not so. The district court laid out in extensive detail each side’s evidence on the question of whether Tucker was a minister (Aplt. App. 274–82) and then held that “whether Mr. Tucker was a ‘minister’ within the meaning of the ‘ministerial exception’ is genuinely disputed on the evidence presented” and that a reasonable jury considering that competing evidence could find either that Tucker was, or was not, a minister (id. at 284). Second, the dissent asserts that it views that competing evidence in the light most favorable to Tucker, but then relies on Faith Christian’s evidence. As the
[1] Faith Bible moved to dismiss, and the district court converted the motion to one for summary judgment.
[2] The district court granted Faith Bible’s motion for summary judgment on a claim under Title VI, but that claim does not bear on this appeal.
[3] Faith Bible also asserts a church-autonomy defense, which the majority treats as underdeveloped. I express no opinion on the development of that defense.
[4] The majority faults Faith Bible for failing to cite “any case permitting an immediate collateral-order appeal challenging a court’s decision to decline to dismiss secular claims based on the Establishment Clause’s prohibition against courts’ excessive entanglement with religion.” Maj. Op. at 45 (emphasis in original). But Mr. Tucker hasn’t cited any case to the contrary. That’s not surprising because this issue is one of first impression; there have been no circuit court cases deciding the issue either way.
[5] Similarly, our court discussed the issue in
Bryce v. Episcopal Church
in the Diocese of Colorado
, stating that the ministerial exception “
prevents
adjudication
of Title VII cases brought by ministers against churches.”
Bryce v. Episcopal Church in the Diocese of Colo.
,
[6] The Eleventh Amendment is jurisdictional,
Colby v. Herrick
, 849
F.3d 1273, 1278 (10th Cir. 2017), but it too can be waived.
Sutton v. Utah
St. Sch. for the Deaf & Blind
,
[7] Mr. Tucker suggests that the ministerial exception should provide no
immunity to religious bodies. But the Supreme Court has rejected that
suggestion.
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC
,
[8]
Herx
lacks any persuasive value because it relied only on the
religious body’s failure to present “a persuasive case” that the ministerial
exception satisfied the collateral-order doctrine.
Herx v. Diocese of Fort
Wayne-South Bend, Inc.
,
[9] The majority states that we treated the ministerial exception as a factual question in Skrzypczak v. Roman Cath. Diocese of Tulsa , 611 F.3d 1238, 1243–44 (10th Cir. 2010). In Skrzypczak , however, we never addressed whether the ministerial exception involved a matter of law or fact. See id. We simply upheld the religious body’s motion for summary judgment, considering the evidence as to the claimant’s job description and responsibilities. Id. at 1243–46.
[10] Mr. Tucker had lost his position as a Director of Student Life/Chaplain before his employment at the school came to an end. For about a month, he had served only as a teacher. See Part I, above. The change led the panel to ask the parties about the pertinent time- period for the ministerial exception. Was it (1) when Mr. Tucker was a director/chaplain and a teacher or (2) when he was just a teacher? I would not decide this issue because Mr. Tucker acted as a minister in both time- periods. See Part VI(B)–(C), below.
[11] Mr. Tucker’s declaration echoes his understanding that he was instructed to “‘integrate’ a Christian worldview into my teaching.” Appellant’s App’x vol. 1. at 207.
[12] The omitted portion of this quotation addresses whether staff members must guide “students who may not yet be born again” toward “an abiding relationship with Christ.” Mr. Tucker states that he was told to let doubting students address their concerns with parents or pastors. Appellant’s App’x vol. 1, at 208. So we do not rely on this portion of the handbook.
[13] He also asserts that school officials told him not to teach particular doctrines. For this assertion, he presents no evidence.
[14] In this sentence, Mr. Tucker cites his statement of facts, where he said: “At one point, Tucker inquired about whether he could take a parsonage allowance and he was told he could not.” Appellant’s App’x vol. 1, at 173.
[15] The parties agree that this conclusion applies equally to the claims under Title VII and Colorado law. See Maj. Op. at 9-10 n.2.