Tucker v. Faith Bible Chapel Int'l. ( 2022 )

Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 7, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
GREGORY TUCKER,
Plaintiff - Appellee,
v. No. 20-1230
FAITH BIBLE CHAPEL
INTERNATIONAL, d/b/a Faith Christian
Academy, Inc.,
Defendant - Appellant.
------------------------------------
EUGENE VOLOKH; ROBERT J.
PUSHAW; RICHARD W. GARNETT;
ROBERT COCHRAN; ELIZABETH A.
CLARK; THE ASSOCIATION OF
CHRISTIAN SCHOOLS
INTERNATIONAL; THE COLORADO
CATHOLIC CONFERENCE;
RELIGIOUS LIBERTY SCHOLARS;
JEWISH COALITION FOR RELIGIOUS
LIBERTY; PROFESSOR ASMA UDDIN;
NATIONAL WOMEN’S LAW CENTER;
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL
EMPLOYEES; AMERICAN SEXUAL
HEATH ASSOCIATION; CALIFORNIA
WOMEN LAWYERS; DC COALITION
AGAINST DOMESTIC VIOLENCE;
DESIREE ALLIANCE; EQUAL RIGHTS
ADVOCATES; EQUALITY
CALIFORNIA; EQUITY FORWARD;
FORGE, INC.; GLBTQ LEGAL
ADVOCATES & DEFENDERS; HUMAN
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2
RIGHTS CAMPAIGN; IN OUR OWN
VOICE; NATIONAL BLACK WOMEN’S
REPRODUCTIVE JUSTICE AGENDA;
KWH LAW CENTER FOR SOCIAL
JUSTICE AND CHANGE;
LATINOJUSTICE PRLDEF; LEGAL AID
AT WORK; LEGAL VOICE; MUSLIMS
FOR PROGRESSIVE VALUES; NARAL
PRO-CHOICE AMERICA; NATIONAL
ASIAN PACIFIC AMERICAN
WOMEN’S FORUM; NATIONAL
ASSOCIATION OF SOCIAL WORKERS;
NATIONAL COALITION AGAINST
DOMESTIC VIOLENCE; NATIONAL
ORGANIZATION FOR WOMEN
FOUNDATION; NEW YORK LAWYERS
FOR THE PUBLIC INTEREST; PEOPLE
FOR THE AMERICAN WAY
FOUNDATION; RELIGIOUS
COALITION FOR REPRODUCTIVE
CHOICE; REPRODUCTIVE JUSTICE
ACTION COLLECTIVE; SERVICE
EMPLOYEES INTERNATIONAL
UNION; SPARK REPRODUCTIVE
JUSTICE NOW!, INC.; UJIMA INC.;
THE NATIONAL CENTER ON
VIOLENCE AGAINST WOMEN IN THE
BLACK COMMUNITY; WOMEN
EMPLOYED; WOMEN LAWYERS ON
GUARD INC.; WOMEN’S BAR
ASSOCIATION OF THE DISTRICT OF
COLUMBIA; WOMEN’S BAR
ASSOCIATION OF THE STATES OF
NEW YORK; WOMEN’S INSTITUTE
FOR FREEDOM OF THE PRESS; THE
WOMEN’S LAW CENTER OF
MARYLAND; WOMAN’S LAW
PROJECT; WV FREE, CIVIL RIGHTS
EDUCATION AND ENFORCEMENT
CENTER; NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION; THE
EMPLOYEE RIGHTS ADVOCACY
INSTITUTE FOR LAW & POLICY, AND
2
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3
THE INSTITUTE FOR
CONSTITUTIONAL ADVOCACY AND
PROTECTION,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CV-01652-RBJ-STV)
_________________________________
Daniel H. Blomberg (Daniel D. Benson and Christopher Mills, The Becket Fund for
Religious Liberty, Washington, D.C., and Christopher J. Conant and Robert W. Hatch,
Hatch Ray Olsen Conant LLC, Denver, Colorado, with him on the briefs), The Becket
Fund for Religious Liberty, Washington, D.C. for Defendant-Appellant.
Bradley Girard (Richard B. Katskee, Americans United for Separation of Church and
State, and Bradley A. Levin, Jeremy A. Sitcoff, and Peter G. Friesen, Levin Sitcoff, PC,
Denver, CO, with him on the brief), Americans United for Separation of Church and
State, Washington, D.C., for Plaintiff-Appellee.
_________________________________
Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
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
3
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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
4
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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
5
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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,
504 U.S. 158, 167–68 (1992), not private religious employers; and
- the “ministerial exception” is an affirmative defense, not a limitation on
courts’ authority to hear Title VII cases, see Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012).
We cannot, and should not, ignore these well-established lines of Supreme
Court precedent and, therefore, we reject Faith Christian’s (and the dissent’s)
arguments for application of the collateral order doctrine here. We conclude, instead,
6
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7
that we lack jurisdiction over this interlocutory appeal and, therefore, DISMISS this
appeal.
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
7
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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,
565 U.S. at 181; see also Our Lady, 140 S. Ct. at 2060–61. The “ministerial
exception” is “not a jurisdictional bar” that might abort the traditional judicial
process. Hosanna-Tabor, 565 U.S. at 195 n.4. Instead, it “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.’” Id. (quoting Morrison v. Nat’l
Australia Bank Ltd., 561 U.S. 247, 254 (2010)).
Because it is well established that a religious employer does not “enjoy a
general immunity from secular laws,” Our Lady, 140 S. Ct. at 2060, the “ministerial
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, 772 F.2d 1164, 1169 (4th Cir. 1985) (recognizing Title VII applies to a
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.
8
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 9
religious institution’s “secular employment decisions”), cited favorably in
Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238, 1245–46 (10th Cir. 2010).
The “ministerial exception” is triggered only when the plaintiff-employee in a Title
VII case qualifies as a “minister.”
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
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
9
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 196 F.3d 940, 950
(9th Cir. 1999))); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 836 (6th
Cir. 2015) (holding “ministerial exception can be asserted as a defense against state law
claims”).
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.”
10
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 11
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, 140 S. Ct. at 2060.
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.
11
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 565 U.S. at 196. The
“ministerial exception,” then, is an exception to employment discrimination laws
which would otherwise apply to a religious employer when the employment dispute
involves a minister.
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., 289 F.3d 648, 657 (10th Cir.
2002) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)). The “ministerial
exception,” on the other hand, applies in one sense more broadly because it applies
regardless of whether the dispute is rooted in religious belief, but the exception also
applies more narrowly only to employment discrimination claims asserted by a
minister. See id. at 654 n.2. The threshold determination for applying the
“ministerial exception” is whether the plaintiff-employee qualifies as a “minister.”
See id.12
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 140 S. Ct. at 2067 (“call[ing] on courts
to take all relevant circumstances into account and to determine whether each
particular position implicated the fundamental purpose of the exception”); see also id.
at 2063 (stating that, “[i]n determining whether a particular position falls within the
Hosanna-Tabor exception, a variety of factors may be important.”); id. at 2066
(noting that in Our Lady “[t]here is abundant record evidence that [the
plaintiffs-employees] both performed vital religious duties,” discussing that evidence
at length); Hosanna-Tabor, 565 U.S. at 190–94 (considering, in significant detail, “all
the circumstances of [the employee’s] employment”).
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., 882 F.3d 655, 657–58 (7th Cir. 2018) (per curiam) (stating
that “whether Grussgott’s role as a Hebrew teacher can properly be considered
ministerial is subject to a fact-intensive analysis” required by Hosanna-Tabor);
Fratello v. Archdiocese, 863 F.3d 190, 206–10 (2d Cir. 2017) (conducting
fact-intensive inquiry into whether employee was a minister); Cannata v. Catholic
Diocese, 700 F.3d 169, 176 (5th Cir. 2012) (noting that “the Hosanna-Tabor Court
engaged in a fact-intensive inquiry and explicitly rejected the adoption of a ‘rigid
formula’ or bright-line test”); E.E.O.C. v. Roman Catholic Diocese, 213 F.3d 795,
13
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 14
801 (4th Cir. 2000) (pre-Hosanna-Tabor) (“While the ministerial exception promotes
the most cherished principles of religious liberty, its contours are not unlimited and
its application in a given case requires a fact-specific inquiry.”); see also Clement v.
Roman Catholic Diocese, No. CV 16-117 Erie, 2017 WL 2619134, at *4 n.3 (W.D.
Pa. June 16, 2017) (unreported) (stating that “the Supreme Court’s decision in
Hosanna-Tabor makes clear that the application of the ministerial exception requires
a factual inquiry to determine if the employee qualifies as a ‘minister’”). This court,
too, has treated the question of whether an employee qualifies as a “minister” as a
fact question. See Skrzypczak, 611 F.3d at 1243–44.
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.” 777 F.3d at 833 (6th Cir.
2015). Conlon, however, made that statement in a Fed. R. Civ. P. 12(b)(6) context,
where every determination is a legal one. Id. Further, as previously noted, a number
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.”
14
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 15
Second, the dissent mentions Skrzypczak, 611 F.3d 1238 (10th Cir. 2010), a
pre-Hosanna-Tabor case. A review of the Skrzypczak opinion indicates that the
Tenth Circuit treated the question of whether the plaintiff-employee was a minister
for purposes of the “ministerial exception” as one of fact. The Tenth Circuit, in that
pre-Hosanna-Tabor case, applied the Fourth Circuit’s general standard for
determining who qualifies as a minister—“any employee who serves in a position that
‘is important to the spiritual and pastoral mission of the church.’” Skrzypczak, 611 F.3d
at 1243 (quoting Rayburn, 772 F.2d at 1169 (4th Cir.)). In upholding summary
judgment for the religious employer under that standard, Skrzypczak first considered
the employer’s evidence of the plaintiff-employee’s job duties, determining that that
“evidence . . . tends to show her position was not limited to a merely administrative role,
but it also involved responsibilities that furthered the core of the spiritual mission of the
Diocese.” 611 F.3d at 1243. That was sufficient evidence under the Fourth Circuit’s
standard to prove that the plaintiff-employee was a minister, shifting the burden to
the plaintiff-employee, in opposing summary judgment, to “bring forward specific
facts showing a genuine issue for trial.” Id. (quoting Kannady v. City of Kiowa, 590 F.3d
1161, 1169 (10th Cir. 2010)). Skrzypczak concluded only that the plaintiff-employee
there had not met her burden because the only evidence she proffered were three deficient
affidavits:
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,
15
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 426 S.W.3d 597, 608–09 (Ky.
2014), which applied state law to conclude that whether an employee is a minister is
a question of law. That state-law case is not persuasive in the face of two U.S.
Supreme Court cases, Our Lady and Hosanna-Tabor, as well as the Tenth Circuit
decision in Skrzypczak, treating the determination of whether a religious entity’s
employee is a minister as a fact-intensive inquiry.
16
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 17
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.
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.
17
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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.), 944 F.3d 1259, 1271
18
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 19
(10th Cir. 2019) (noting this Court will “not address arguments raised in the District
Court in a perfunctory and underdeveloped manner”) (quotation marks omitted).
Faith Christian argues in its reply brief that it cannot forfeit a defense under
the church autonomy doctrine. (Aplt. Reply Br. 17 (citing Lee v. Sixth Mount Zion
Baptist Church. 903 F.3d 113, 118 n.4 (3d Cir. 2018) (holding religious institution
cannot “waive” “ministerial exception”).) We do not need to address that argument
in this case because here the problem is not forfeiture. The problem here is instead
that, because of the procedural posture of this case and because Faith Christian
waited until its motion for reconsideration to refer, only perfunctorily, to the church
autonomy doctrine, Faith has not adequately asserted or developed a defense under
that doctrine. Neither party has yet had an adequate opportunity to address the
threshold question presented by such a defense, whether the parties’ employment
dispute is “‘rooted in religious belief,’” Bryce, 289 F.3d at 657 (quoting Yoder, 406
U.S. at 215).6 Here, therefore, we address only a “ministerial exception” defense,
which applies only when a “minister” sues his or her religious employer for violating
anti-discrimination employment laws.7
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
19
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 324 U.S. 229, 233 (1945).
Faith Christian instead invokes the collateral order doctrine, “an expansive
interpretation of [§ 1291’s] finality requirement” first announced in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which allows appeals “from
principles underlying that doctrine are not helpful in resolving the issue presented in
this appeal.
20
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 437 U.S. 463, 468 (1978) (numbers
added), superseded on other grounds by rule as stated in Microsoft Corp. v. Baker,
137 S. Ct. 1702, 1708–10 (2017).
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, 515 U.S. at 309. Because of these concerns, the collateral order doctrine
only applies to a “small class” of decisions “which finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at
546.
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
21
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 22
separate appeals from the various rulings’ in a single case.” Los Lobos Renewable
Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 664 (10th Cir. 2018) (quoting Will
v. Hallock, 546 U.S. 345, 350 (2006)). Emphasizing how small the class of
immediately appealable collateral orders is, this Court has noted that, “[i]n case after
case in year after year, the Supreme Court has issued increasingly emphatic
instructions that the class of cases capable of satisfying this ‘stringent’ test should be
understood as ‘small,’ ‘modest,’ and ‘narrow.’” Kell v. Benzon, 925 F.3d 448, 452
(10th Cir. 2019) (quoting United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir.
2010)).
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, 515 U.S. at 311–13
(discussing Mitchell v. Forsyth, 472 U.S. 511 (1985)). But, after weighing the costs
and benefits of an immediate appeal, the Supreme Court determined that an
immediate appeal from the denial of qualified immunity cannot be justified when the
challenged order “resolved a fact-related dispute about the pretrial record, namely,
whether or not the evidence in the pretrial record was sufficient to show a genuine issue
of fact for trial.” Id. at 307 (emphasis added); see also id. at 313–18. In reaching that
22
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 23
conclusion, the Supreme Court stated that “considerations of delay, comparative expertise
of trial and appellate courts, and wise use of appellate resources argue in favor of limiting
interlocutory appeals of ‘qualified immunity’ matters to cases presenting more abstract
issues of law.” Id. at 317. That is because “the existence, or nonexistence, of a triable
issue of fact—is the kind of issue that trial judges, not appellate judges, confront almost
daily.” Id. at 316. Further, “questions about whether or not a record demonstrates a
‘genuine’ issue of fact for trial, if appealable, can consume inordinate amounts of
appellate time,” which means “greater delay.” Id. And
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
23
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 515 U.S. 304, 315 (1995). Thus, our task is not
to look at the “individual case [and] engage in ad hoc balancing to decide
issues of appealability.” Id. Instead, we must undertake a more general
consideration of “the competing considerations underlying all questions
of finality—‘the inconvenience and costs of piecemeal review on the one
[hand] and the danger of denying justice by delay on the other.’” Id.(citation omitted).
Los Lobos Renewable Power, 885 F.3d at 664. We must, then, evaluate appealability
under the collateral order doctrine without regard to a “particular injustice” that may
be “averted” by an immediate appeal in a given case. Dig. Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 868 (1994) (quotation marks omitted)); see also Johnson,
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 515 U.S. at 307, 313.
24
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 25
515 U.S. at 315 (“[W]e do not . . . in each individual case engage in ad hoc balancing to
decide issues of appealability.”).
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, 885 F.3d at 664. As previously stated,
[t]o come within the “small class” of decisions excepted from the
final-judgment rule by Cohen, the order must [1] conclusively determine
the disputed question, [2] resolve an important issue completely separate
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.
25
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 26
from the merits of the action, and [3] be effectively unreviewable on
appeal from a final judgment.
Coopers & Lybrand, 437 U.S. at 468 (1978) (applying Cohen, 337 U.S. 541). As
explained next, Faith Christian can only meet the first and third Cohen requirements
if we treat the “ministerial exception” as immunizing a religious employer, not just
from liability, but from having to litigate at all its employee’s employment
discrimination claims. Because we decline to afford the “ministerial exception” such
expansive treatment, we conclude Faith Christian has not established our jurisdiction
under the collateral order doctrine.
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 requirement10
a. Faith Christian has failed to establish that this category of orders
denying summary judgment will be effectively unreviewable on
appeal from final judgment
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.
26
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 27
We conclude that this category of orders, like most orders denying summary
judgment, see Ralston v. Cannon, 884 F.3d 1060, 1066 (10th Cir. 2018), can be
effectively reviewed in the usual course of litigation; that is, we can effectively
review such an order on appeal after the conclusion of litigation in the district court,
see Dig. Equip., 511 U.S. at 868. In arguing to the contrary, Faith Christian asserts
that the “ministerial exception” protects religious employers not just from liability
based on its minister’s employment discrimination claims, but also from the burden
of litigating such claims, and it is this protection against the burdens of litigation that
will be lost without an immediate appeal. We reject that argument because Faith
Christian is incorrect that the “ministerial exception” immunizes a religious employer
from suit on employment discrimination claims.
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, 565 U.S. at 195
n.4 (quoting Morrison, 561 U.S. at 254) (emphasis added). Hosanna-Tabor, in
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,
27
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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.” 565 U.S. at 188. But requiring a religious employer to
incur litigation costs to defend against claims asserted against it by an employee
under a generally applicable employment discrimination statute does not punish a
religious employer. It is, instead, the cost of living and doing business in a civilized
and highly regulated society. See Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank, 473 U.S. 173, 202, 204–05 (1985) (Stevens, J., concurring)
(addressing citizen’s litigation costs incurred to challenge local government’s zoning
decisions), overruled in part on other grounds by Knick v. Twp. of Scott, 139 S. Ct.
2162, 2167–68 (2019); HMK Corp. v. Cty. of Chesterfield, 616 F. Supp. 667, 670–71
(E.D. Va. 1985). It bears repeating that religious institutions do not “enjoy a general
immunity from secular laws.” Our Lady, 140 S. Ct. at 2060.
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.
28
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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.,
511 U.S. at 873. That includes orders denying summary judgment. See id. But
allowing an immediate appeal from the denial of a dismissal based on all of these
rules would eviscerate the congressionally mandated final judgment rule. See id.;
Wright & Miller, 15A Federal Practice & Procedure § 3911.4.
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.
29
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 515 U.S. at 309.
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
30
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 472 U.S. at 525–
27. Because qualified immunity is predicated on “an immunity from suit rather than
a mere defense to liability . . . , it is effectively lost if a case is erroneously permitted
to go to trial.” Id. at 526. But Faith Christian has not cited any case holding that the
“ministerial exception” similarly immunizes a private religious employer from the
burdens of litigating employment discrimination claims brought against it by one of
its ministers.13
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
13
To the contrary, see Smith & Tuttle, 86 Fordham L. Rev. at 1881 (stating that “the
ministerial exception, at bottom, is still a defense to liability rather than a
comprehensive immunity from suit” and any error that the district court makes in not
applying that exception can be reviewed effectively on appeal from final judgment).
31
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 32
the First Amendment more generally provides an immunity from trial, as opposed to
an ordinary defense to liability.” Id. at 1090. Although Herx did not involve the
“ministerial exception,” id. at 1091 n.1, it does support both our conclusions that the
“ministerial exception” does not immunize a religious employer from litigating Title
VII claims asserted against it by a minister and that orders denying summary
judgment on the “ministerial exception” are not immediately appealable.
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, 289 F.3d at 654
(addressing church autonomy doctrine); see also Skrzypczak, 611 F.3d at 1242(addressing “ministerial exception”). But in doing so, we were quick to note further
that, “[o]f course, the doctrines and their inquiries are quite different, as are the
reasons for addressing them early in the litigation process.” Bryce, 289 F.3d at 654
n.1. Qualified immunity applies to suits against government officials in an effort to
protect the public’s interest in a functioning government. See id. To that end,
qualified immunity seeks to avoid “the general costs of subjecting officials to the
risks of trial—distraction of officials from their governmental duties, inhibition of
discretionary action, and deterrence of able people from public service.” Mitchell,
472 U.S. at 526 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).14
14
For similar reasons, courts have recognized the need for immediate appeals under
the collateral order doctrine from categories of orders denying a government
32
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 33
Courts, however, “hesita[te] to extend immunity from suit to a private party
without a statutory basis” to do so because “[i]mmunity from suit is a benefit
typically only reserved for governmental officials.” Gen. Steel Domestic Sales,
L.L.C. v. Chumley, 840 F.3d 1178, 1182 (10th Cir. 2016). The Supreme Court has
similarly stated that rationales underlying qualified immunity—“to safeguard
government, and thereby to protect the public at large”—“are not transferable to
private parties.” Wyatt, 504 U.S. at 168. The fact that the “ministerial exception”
applies only to private religious organizations, then, counsels against treating the
“ministerial exception” like an immunity from suit, under both Supreme Court and
Tenth Circuit precedent.
official’s claim to absolute immunity. See Mitchell, 472 U.S. at 525 (citing Nixon v.
Fitzgerald, 457 U.S. 731 (1982)). In recognizing both qualified and absolute
immunity, the Supreme Court has “consistently held that government officials are
entitled to some form of immunity from suits for damages” in order to protect “public
officers . . . from undue interference with their duties and from potentially disabling
threats of liability.” Harlow, 457 U.S. at 806. Absolute immunity applies to
“officials whose special functions or constitutional status requires complete
protection from suit,” like legislators acting in their legislative capacity, judges
acting in their judicial capacity, and prosecutors and executive officers engaged in
adjudicative functions, as well as the President of the United States. Id. “For
executive officials in general, however, . . . qualified immunity represents the norm,”
in an effort “to balance competing values: not only the importance of a damages
remedy to protect the rights of citizens, but also ‘the need to protect officials who are
required to exercise their discretion and the related public interest in encouraging the
vigorous exercise of official authority.’” Id. (quoting Butz v. Economou, 438 U.S.
478, 506 (1978)). Courts also recognize immediate appeals under the collateral order
doctrine from categories of orders denying a government’s claim to Eleventh
Amendment immunity, see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 141 (1993), as well as a foreign government’s claim to immunity, see
Herx, 772 F.3d at 1090 (7th Cir.).
33
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 34
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
15
Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659 (10th Cir.
2018), is one such example. But that case otherwise has no relevance to the issues
before us. It dealt with the application of a unique New Mexico statute providing
expedited procedures in a narrow class of litigation described as “strategic lawsuits
against public participation,” or “SLAPP.” Id. at 662. Here, of course, there is no
SLAPP claim and obviously no need to apply the New Mexico law.
34
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 35
state regulation.”). Religious entities can be sued on myriad theories. See
Skrzypczak, 611 F.3d at 1244–46 (discussing lawsuits that can and cannot be brought
against religious organizations); Tomic v. Catholic Diocese, 442 F.3d 1036, 1039–40
(7th Cir. 2006) (same), overruled on other grounds by Hosanna-Tabor, 565 U.S. at
195 n.4 (holding “ministerial exception” is not jurisdictional).
As just one example, religious employers can be sued by their non-ministerial
employees for violating anti-discrimination employment statutes. See, e.g., Rayburn,
772 F.2d at 1169. That highlights the importance of the merits question at issue in
this appeal. If the employee is a minister, suit over the employment discrimination
claims ends. But if the employee is not a minister, then those claims must be
resolved according to our normal jurisprudential process.
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
35
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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.’”
565 U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254) (emphasis added).
16
Similarly, immunity is never mentioned or suggested by the Supreme Court in its
later, closely related case of Our Lady.
36
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 37
Hosanna-Tabor stated that it would interfere with a church’s “internal
governance” to require the “church to accept or retain an unwanted minister, or
punish[] a church for failing to do so.” Id. at 188. That reasoning, of course, does
not preclude the need for a fact-finder first to determine whether the plaintiff is or is
not in fact a minister. Hosanna-Tabor also held that to grant the relief the
employee-minister sought in that case—reinstatement and damages—would violate
the First Amendment, and it concluded that, because the employee in that case was a
minister, “the First Amendment requires dismissal.” Id. at 194. All of that language
from Hosanna-Tabor suggests that the “ministerial exception” is a defense that
protects a religious employer from ultimate liability under Title VII from a plaintiff
who is found to be a minister but not from the normal judicial process to make that
predicate determination of whether the plaintiff-employee is in fact a minister.17
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
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.
37
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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.’” 565 U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254) (emphasis added).18
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. 511 U.S. at 873–75
(emphasis added) (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 501 (1989),
and citing Mitchell, 472 U.S. 511).19
18
The Supreme Court has more generally warned courts to be cautious when using
the label “jurisdictional.” See Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004).
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
38
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 561 U.S. at 254). Faith Christian nevertheless
attempts an end-run around this clear Supreme Court language, trying to make the
same argument we have just rejected by dressing it up in different clothes—e.g.,
trying to advance the same argument this time under the rubric of a structural
Supreme Court to give the word “bar” the weight the dissent would give it. Neither
the dissent nor the parties have cited any case giving Hosanna-Tabor’s use of the
term “bar” the expansive and novel reading suggested by Faith Christian and the
dissent. Nor have we found any such case. The dissent points to the Sixth Circuit’s
Conlon decision. But Conlon did not address immunity. Instead, it relied on
Hosanna-Tabor to hold that a religious employer cannot waive the application of the
“ministerial exception” defense once it has been determined that the
plaintiff-employee qualifies as a minister. 777 F.3d at 833–36. Neither the Supreme
Court nor this Court has addressed that waiver question. But waiver, in any event, is
not the same as an immunity from suit that Faith Christian seeks here.
20
The dissent also relies on this court’s use of the term “adjudication” in Bryce, a
pre-Hosanna Tabor Tenth Circuit case, 289 F.3d at 656. While Bryce discussed the
“ministerial exception,” its ruling was based only on the church autonomy doctrine.
See id. at 651, 658 n.2.
39
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 777 F.3d 829 (6th Cir.); Lee, 903 F.3d 113(3d Cir.); and Tomic, 442 F.3d 1036 (7th Cir.). None of these three cases are binding
on us. But, in any event, each of them is distinguishable. None of the three address
the question of whether the “ministerial exception” immunizes a religious employer
from litigating employment discrimination claims. Instead, each of those cases
addressed only the question of whether a religious employer could waive (or forfeit)
a “ministerial exception” defense. Further, each of the three cases addressed the
waiver question only after it was clear that the plaintiff-employee was a minister.
That, too, differs from this case. Of greater concern, the specific language from
those cases on which Faith Christian relies contradicts Hosanna-Tabor’s express
language indicating that the “ministerial exception” does not implicate a court’s
power to hear an employment discrimination claim.
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. 777 F.3d at 833. The Sixth Circuit then determined
that the plaintiff-employee in that case was a minister and, thus, that the employer
40
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 41
could assert the “ministerial exception.” Id. at 832, 834–35. Only after that did
Conlon cite the First Amendment and state the generally accepted principle that the
“government cannot dictate to a religious organization who its spiritual leaders will
be.” Id. at 835–36. On that basis, Conlon rejected the plaintiff-employee’s assertion
that the employer had “waived” its “ministerial exception” defense, ruling that the
“ministerial exception” cannot be waived.” Id. at 836.
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. 903 F.3d at 116–18. Lee
moved for summary judgment and, in its defense, the Church responded by asserting
several defenses, but not the “ministerial exception.” Id. at 118 & n.2. It was the
district court which, sua sponte, raised the “ministerial exception” and eventually
granted the non-moving Church summary judgment on that basis. Id. at 118. The
Third Circuit ruled that the employer had not “waived” the affirmative “ministerial
exception” defense because it “is rooted in constitutional limits on judicial
authority.” Id. at 118 n.4. Alternatively, the court noted that Lee did not argue
waiver to the district court. Id.
In Tomic, a pre-Hosanna-Tabor case, the Seventh Circuit treated the
“ministerial exception” as a jurisdictional limitation, see 442 F.3d at 1039, a
proposition which the Supreme Court later rejected in Hosanna-Tabor, see 565 U.S.
at 195 n.4. In a general discussion, Tomic noted “that federal courts cannot always
avoid taking a stand on a religious question.” 442 F.3d at 1039. Where, for example,
41
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 42
a church designated all of its employees, including the janitor, as a minister, a “court
would have to determine whether under the actual law of the church in question . . .
janitors really were ministers.” Id. But under the specific facts that the
plaintiff-employee alleged in Tomic, the Seventh Circuit held that the
plaintiff-employee, as the music director for a Catholic diocese, qualified as a
minister. Id. at 1040–41. After reaching that conclusion, the Seventh Circuit
considered “whether it makes a difference that the diocese represents itself as an
‘equal opportunity’ employer.” Id. at 1041. The court held it did not make a
difference because “the ministerial exception, like the rest of the internal-affairs
doctrine, is not subject to waiver or estoppel.” Id. at 1042.
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.’”
565 U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254). Moreover, although the
post-Hosanna-Tabor cases of Conlon and Lee recognized that Hosanna-Tabor held
that the “ministerial exception” is not jurisdictional, neither Conlon nor Lee
acknowledged and addressed the Supreme Court’s further language indicating that
the “ministerial exception” does not implicate a court’s “‘power to hear [the] case,’”
42
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 43
id. (quoting Morrison, 561 F.3d at 254). (Neither Faith Christian nor the dissent
address this language from Hosanna-Tabor, either.)
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, 521 U.S. 203, 233 (1997).
43
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 44
A district court’s decision to deny a religious employer summary judgment
because there are disputed issues of fact material to whether or not the
plaintiff-employee is a minister does not represent excessive entanglement. See
generally id. (noting “[i]nteraction between church and state is inevitable”). Instead,
the fact finder must determine whether the plaintiff-employee is a minister before
deciding whether the “ministerial exception” applies in a given case. If the
plaintiff-employee is not a minister, there is no entanglement with religion and the
“ministerial exception” does not apply. Religious institutions do not “enjoy a general
immunity from secular laws.” Our Lady, 140 S. Ct. at 2060. Instead, applying
neutral and generally applicable laws to religious institutions ordinarily does not
violate the First Amendment. See Fulton v. City of Philadelphia, 141 S. Ct. 1868,
1876–77 (2021) (citing cases). Faith Christian, thus, is subject to Title VII
discrimination claims brought against it by a non-ministerial employee. See
Rayburn, 772 F.3d at 1169 (4th Cir.). Requiring Faith Christian to litigate to
resolution here the genuinely disputed predicate factual issue of whether or not
Tucker is a minister does not amount to an excessive entanglement of courts with
religion. It is instead a necessary factual determination that will resolve whether the
“ministerial exception” even applies in the first place. And, where there is a
genuinely disputed factual issue as to whether an employee qualifies as a “minister,”
a jury must resolve that predicate material factual dispute. That cannot be avoided in
light of the fact-intensive nature of the question, as emphasized by the Supreme
44
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 45
Court in both Our Lady, 140 S. Ct. at 2066–67, and Hosanna-Tabor, 565 U.S. at 190–
94.
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.”
45
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 46
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, 896 F.3d 362 (5th
Cir. 2018), but the circumstances at issue there were very different from this case. In
Smith, the district court issued a discovery order requiring the Texas Conference of
Catholic Bishops (“Conference”), which was not a party to the litigation, to produce
its “internal communications.” Id. at 364. The Fifth Circuit permitted an immediate
appeal from that decision under the collateral order doctrine because the contested
discovery order conclusively determined that the non-party Conference had to turn
over its internal communications and, because the discovery order was directed to a
non-party, it was effectively unreviewable following a final judgment entered in the
parties’ litigation. Id. at 367–69. That is a very different situation than the one
presented here, where a party-defendant (Faith Christian) seeks an immediate
collateral-order appeal from the denial of summary judgment on its affirmative
defense because there remain material factual disputes that a jury must decide. Here,
Faith Christian can challenge that finding after final judgment if an adverse judgment
is ultimately rendered against it.
46
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 47
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.
47
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 48
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, 437 U.S. at 468 (applying Cohen, 337 U.S. 541).
48
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 49
But Faith Christian cannot satisfy Cohen’s first requirement either. It is clear that the
district court denied summary judgment because a jury must resolve the genuinely
disputed fact question of whether Tucker was a “minister”; that ruling unquestionably
did not “conclusively determine the disputed question” of Tucker’s ministerial status,
Coopers & Lybrand, 437 U.S. at 468 (emphasis added). Instead, the district court’s
decision clearly contemplates further factual proceedings to resolve that disputed
issue of fact of Tucker’s ministerial status vel non.
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
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
49
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 50
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, 442 F.3d at 1039 (7th Cir.). We lack jurisdiction to consider the
merits of the district court’s decision and so we do not address those merits in detail.
But there are concerns about the dissent’s discussion of those merits.
50
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 51
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, 565 U.S. 171, 188 (2012); Our Lady of
Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020). By
barring consideration of these disputes, the ministerial exception protects
the free exercise of religion and prevents judicial entanglement in religious
matters. Hosanna-Tabor, 565 U.S. at 188.
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
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.
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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.
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.
2
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 53
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, 859 F.2d 842, 844 (10th Cir. 1988). So we should
consider all of Mr. Tucker’s jurisdictional challenges.
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
3
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 54
because they concern not just a defense against liability but also a “right
not to stand trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This
right exists only rarely, when it’s “embodied in a constitutional or
statutory provision entitling a party to immunity from suit.” Digit. Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 874 (1994).
We proceed cautiously when characterizing a defense as a protection
from the suit itself rather than just liability. Will v. Hallock, 546 U.S. 345,
350 (2006). For this characterization, we consider whether delayed review
would “imperil . . . a substantial public interest or some value of a high
order.” Mohawk Indus. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting
Will, 546 U.S. at 352–53). The Supreme Court has identified values of a
“high order” in defenses involving qualified immunity, absolute immunity,
Eleventh Amendment immunity, and double jeopardy. Will, 546 U.S.
at 352. These defenses serve values of a high order like the separation of
powers, the efficiency of government, the discretion of governmental
officials, the State’s dignitary interests, and the mitigation of power
imbalances between governmental and private litigants. Id. at 352–53.
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
4
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 55
government.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis
added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).
Government can be disrupted by
 distracting “officials from their governmental duties,”
 “inhibit[ing] discretionary action,” and
 “deterr[ing] . . . able people from public service.”
Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).
Consider also absolute immunity, which is an affirmative defense
that prevents civil liability for official acts by certain governmental actors.
Nixon v. Fitzgerald, 457 U.S. 731, 744–47, 755 (1982). This affirmative
defense stems from the structural separation of powers among the branches
of government. Id. at 748. Given the importance of this structural
protection, the Supreme Court treats absolute immunity as immediately
appealable. Id. at 742–43; see also Will, 546 U.S. at 352 (stating that
immediate appealability in Nixon v. Fitzgerald was based on concern that
delay of an appeal would compromise separation of powers).
And consider Eleventh Amendment immunity, which bars federal
suits against states. P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 141, 144 (1993). To relieve states of burdensome suits and
to ensure vindication of a state’s dignitary interests, the Supreme Court
treats Eleventh Amendment immunity as immediately appealable,
5
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 56
characterizing it as an affirmative defense protecting values of a high
order. Will, 546 U.S. at 352–53.
A final example involves the Double Jeopardy Clause, which protects
an individual from being punished twice for the same offense. Abney v.
United States, 431 U.S. 651, 661 (1977). Immediate appellate review is
needed because the government’s prosecutorial power can subject
individuals “to embarrassment, expense and ordeal . . . to live in a
continuing state of anxiety.” Will, 546 U.S. at 352 (quoting Abney, 431
U.S. at 661–62).
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
6
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 57
Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020)
(quoting Hosanna-Tabor, 565 U.S. at 186).
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, 772 F.2d 1164, 1171 (4th Cir. 1985). The
potential cloud of litigation might also affect a religious body’s criteria for
future vacancies in the ministry. See EEOC v. Cath. Univ. of Am., 83 F.3d
455, 467 (D.C. Cir. 1996).
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
7
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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., 344 U.S. 94, 119 (1952)); see also Skrzypczak
v. Roman Cath. Diocese, 611 F.3d 1238, 1243 (10th Cir. 2010) (“The
ministerial exception preserves a church’s ‘essential’ right to choose the
people who will ‘preach its values, teach its message, and interpret its
doctrines, both to its own membership and to the world at large,’ free from
the interference of civil employment laws.” (quoting Bryce v. Episcopal
Church in the Diocese of Colo., 289 F.3d 648, 656 (10th Cir. 2002))).
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, 777 F.3d 829, 836
(6th Cir. 2015) (“The ministerial exception is a structural limitation
imposed on the government by the Religion Clauses.”); Lee v. Sixth Mount
Zion Baptist Church of Pittsburgh, 903 F.3d 113, 118 n.4 (3d Cir. 2018)
(noting that the ministerial exception “is rooted in constitutional limits on
judicial authority”); see also John Hart Ely, Democracy & Distrust:
8
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 59
A Theory of Judicial Review 94 (1980) (arguing that the Religion Clauses
perform a “structural or separation of powers function”). The
Constitution’s structural limitation prohibits governmental involvement “in
religious leadership disputes.” Conlon, 777 F.3d at 836; see also Peter J.
Smith & Robert Tuttle, Civil Procedure & the Ministerial Exception, 86
Fordham L. Rev. 1847, 1880–81 (2018) (noting that the ministerial
exception is “best understood as an effectuation of the Establishment
Clause’s limits on governmental authority to decide strictly and purely
ecclesiastical matters” (citing Hosanna-Tabor, 565 U.S. at 188–89)); Carl
H. Esbeck, The Establishment Clause as a Structural Restraint on
Governmental Power, 84 Iowa L. Rev. 1, 3–4 (1998) (arguing that the
Establishment Clause serves as a “structural restraint on the government’s
power to act on certain matters pertaining to religion”).
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, 442 F.3d 1036, 1042 (7th Cir.
2006), abrogated in part on other grounds, Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). By confining
courts to legal disputes, the ministerial exception preserves the separation
of religious and legal realms, preventing “secular courts [from] taking on
9
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 60
the additional role of religious courts, as if the United States were a
theocracy.” Id.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, 777 F.3d 829, 836 (6th Cir. 2015)
(concluding that “the Constitution does not permit private parties to waive
the First Amendment’s ministerial exception” because “[t]his
constitutional protection is . . . structural”); Tomic v. Cath. Diocese of
Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006) (stating that “the ministerial
exception . . . is not subject to waiver or estoppel”), abrogated in part on
other grounds, Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
EEOC, 565 U.S. 171 (2012). No circuit has reached a contrary conclusion.
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
10
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 777 F.3d 829, 836 (6th Cir. 2015) (citing Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 181–89
(2012)); see pp. 15–16, below.
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, 903 F.3d 113, 118 n.4 (3d Cir. 2018). But
the Third Circuit considered the ministerial exception nonwaivable because
it “is rooted in constitutional limits on judicial authority.” Id. In Conlon,
the Sixth Circuit interpreted Hosanna-Tabor to prevent courts from ever
considering the ministerial exception as waived because it “is a structural
limitation imposed on the government by the Religion Clauses.” Conlon,
777 F.3d at 836 (citing Hosanna-Tabor Evangelical Lutheran Church &
11
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 62
Sch. v. E.E.O.C., 565 U.S. 171, 181–89 (2012)). As the Third and Sixth
Circuits explained, they disallowed waiver because of the ministerial
exception’s structural character.
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, 903 F.3d at 118–23.
Regardless of the sequence of these issues, however, why would the courts’
organization of their opinions render the content distinguishable? The
parties didn’t raise the ministerial exception in any of these cases, but each
circuit held that the court had to address the issue anyway because of its
unique structural quality, setting it apart from most other affirmative
defenses.
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
12
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 63
ministers. 4 See Rayburn v. General Conference of Seventh-Day Adventists,
772 F.2d 1164, 1171 (4th Cir. 1985) (stating that Title VII actions can be
lengthy and subject churches to “subpoena, discovery, cross-examination,
the full panoply of legal process designed to probe the mind of the church
in the selection of its ministers”); see also EEOC v. Cath. Univ. of Am.,
83 F.3d 455, 467 (D.C. Cir. 1996) (concluding that the EEOC’s two-year
investigation into a minister’s claim, combined with extensive pretrial
inquiries and a trial, “constituted an impermissible entanglement with
judgments that fell within the exclusive province of the Department of
Canon Law as a pontifical institution”). And early resolution will soften
the disruption into a religious body’s internal affairs. See Demkovich v. St.
Andrew the Apostle Par., 3 F.4th 968, 982–83 (7th Cir. 2021) (expressing
concern that litigation over the ministerial exception could “protract legal
process” and “the very process of inquiry could ‘impinge on rights
guaranteed by the Religion Clauses’” (quoting Rayburn, 772 F.2d at 1171
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.
13
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 64
(4th Cir. 1985) and NLRB v. Cath. Bishop of Chi., 440 U.S. 490, 502
(1979))).
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. 565 U.S. at 196 (emphasis added). 5 By using the words “bar” and
“suit,” the Supreme Court has recognized the function of the ministerial
exception as a protection against litigation itself (rather than just as a
defense against liability).
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, 565 U.S. at 196. Substitute
any synonym for bar, such as prevent. See Bryan A. Garner, Garner’s
Dictionary of Legal Usage 103 (3d ed. 2001) (“Bar means ‘to prevent
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., 289 F.3d 648, 656
(10th Cir. 2002) (emphasis added). The majority argues we cannot rely on
Bryce because the holding ultimately turned on the church autonomy
doctrine. See Maj. Op. at 39 n.20. But there we considered the ministerial
exception as a part of the church autonomy doctrine. Id. at 656.
14
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 65
(often by legal obstacle).’”). The Supreme Court paired this verb with the
direct object suit, which means “[a]ny proceeding by a party or parties
against another in a court of law.” Suit, The Black Law Dictionary
(11th ed. 2019). The Supreme Court’s language was unmistakable: It
characterized the ministerial exception as a defense that would prevent the
proceeding itself. I think that we should take the Supreme Court’s choice
of words at face value, for “a good rule of thumb for reading [the Supreme
Court’s] decisions is that what they say and what they mean are one and
the same.” Mathis v. United States, 136 S. Ct. 2243, 2254 (2016).
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.,
474 F.3d 223, 226 (6th Cir. 2007). But the Sixth Circuit later concluded
that the ministerial exception was no longer waivable because Hosanna-
Tabor had treated the ministerial exception as a bar to the suit itself.
Conlon v. Intervarsity Christian Fellowship/USA, 777 F.3d 829, 836
(6th Cir. 2015). For this conclusion, the court drew upon two of Hosanna-
Tabor’s key passages:
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.’”
15
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 66
Id. (alteration in original) (quoting Hosanna-Tabor, 132 S. Ct. at 704,
706).
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, 533 U.S. 353, 373 (2001) (“There is no authority
whatsoever for the proposition that absolute- and qualified-immunity
defenses pertain to the court’s jurisdiction . . . .”). Though these
affirmative defenses aren’t “jurisdictional” in district court, they trigger
the collateral-order doctrine to create appellate jurisdiction. See Maj. Op.
at 22 (qualified immunity); id. at 32 n.14 (absolute immunity).
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
16
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 67
character. See Hicks, 533 U.S. at 373; pp. 10–12, above. 6 Mr. Tucker
nonetheless suggests three other differences between the ministerial
exception and other immunities. These differences prove little.
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, 140 S. Ct. 2049, 2060
(2020) (stating that the ministerial exception “does not mean that religious
institutions enjoy a general immunity from secular laws”). Religious
bodies remain subject to many civil and criminal laws. See, e.g., Emp.
Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990) (holding
that the government may enforce neutral and generally applicable laws
despite religious objections).
The ministerial exception involves only an immunity from trial in
employment disputes between a religious body and its ministers. See Our
Lady of Guadalupe, 140 S. Ct. at 2060 (“[The ministerial exception] does
protect their autonomy with respect to . . . the selection of the individuals
who play certain key roles.”); Skrzypczak v. Roman Cath. Diocese,
611 F.3d 1238, 1246 (10th Cir. 2010) (concluding that the ministerial
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, 173 F.3d 1226, 1233–34 (10th Cir. 1999).
Though waivable, Eleventh Amendment immunity can still trigger the
collateral-order doctrine. See pp. 5–6, above.
17
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 68
exception bars ministers’ pursuit of employment claims). The ministerial
exception doesn’t shield religious bodies from all secular laws.
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, 565 U.S. 171, 196 (2012) (concluding that the
First Amendment elevates the interest of religious bodies in choosing their
ministers). So ministerial employees can’t sue even though other
employees can. The distinction serves the structural purpose of the
Religion Clauses, preventing judicial intrusion into a religious body’s
employment of ministers. See Part III(B), above. On the other hand,
employment of secular employees doesn’t implicate the structural purpose
of the Religion Clauses.
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
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,
565 U.S. 171, 188 (2012); Our Lady of Guadalupe Sch. v. Morrissey-Berru,
140 S. Ct. 2049, 2060 (2020).
18
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 69
applies to private parties as well as governmental parties. Eisen v. Carlisle
& Jacquelin, 417 U.S. 156 (1974); Swift & Co. Packers v. Compania
Colombiana Del Caribe, S.A., 339 U.S. 684 (1950); Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949)). For example, we’ve recognized
appellate jurisdiction under the collateral-order doctrine when private
parties clashed over a state law. Los Lobos Renewal Power LLC v.
Americulture, Inc., 885 F.3d 659, 661 (10th Cir. 2018). Other circuits have
also applied the collateral-order doctrine to appeals by private parties. See
Black v. Dixie Consumer Prods. LLC, 835 F.3d 579, 583–84 (6th Cir. 2016)
(stating that the Sixth Circuit and other federal appellate courts have
frequently applied the collateral-order doctrine to private parties); see also
United States v. Bescond, 7 F.4th 127, 131 (2d Cir. 2021) (applying the
collateral-order doctrine in permitting an interlocutory appeal by a private
party on the issue of fugitive status).
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., 772 F.3d 1085 (7th Cir. 2014). As the majority observes,
however, the Seventh Circuit didn’t address the applicability of the
19
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 70
collateral-order doctrine to the ministerial exception. Maj. Op. at 31
(citing Herx, 772 F.3d at 1088, 1091 n.1). 8
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.
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., 772 F.3d 1085, 1091 (7th Cir. 2014). For this
conclusion, the Seventh Circuit relied on deficiencies in the briefing,
stating that the religious body had focused mainly “on the merits,” spent
“only a few sentences” on jurisdiction, and failed to cite relevant
authority. Id. at 1090–91. In our appeal, however, the parties have fully
briefed the applicability of the collateral-order doctrine.
20
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 71
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, 777 F.3d 829, 833 (6th Cir. 2015) (stating that
“whether the [ministerial] exception attaches at all is a pure question of
law”); Kirby v. Lexington Theol. Seminary, 426 S.W.3d 597, 608–09
(Kan. 2014) (“[W]e hold the determination of whether an employee of a
religious institution is a ministerial employee is a question of law for the
21
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 72
trial court, to be handled as a threshold matter.”). 9 Granted, the inquiry is
fact-dependent and considers the employee’s title, qualifications, and
responsibilities. But the ultimate question of ministerial status entails a
matter of law.
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, 159 F.3d 1253, 1261 (10th Cir. 1998), and
 “ask de novo whether sufficient evidence exists” for a
conclusion that the plaintiff overcame qualified immunity,
Lewis v. Tripp, 604 F.3d 1221, 1228 (10th Cir. 2010).
So when we consider qualified immunity, the district court’s reliance on
unidentified factual disputes won’t prevent application of the collateral-
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.
22
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 73
order doctrine. Id. The same is true here: Unidentified factual disputes
don’t prevent application of the collateral-order doctrine to the ministerial
exception.
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, 574 U.S. 405, 414 n.5 (2015) (quoting Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). These orders are
reviewable under the collateral-order doctrine. Id.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., 885 F.3d 659, 664
(10th Cir. 2018). We apply these elements to categories of orders rather
than to individual orders, weighing “the inconvenience and costs of
piecemeal review” against “the danger of denying justice by delay on the
other.” Id. (quoting Johnson v. Jones, 515 U.S. 304, 315 (1995)). “The
latter end of that scale has often tipped in favor of constitutionally based
immunities.” Id.23
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 74
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., 885 F.3d 659, 665
(10th Cir. 2018).
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
24
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 75
would conclusively determine the need to stand trial on the plaintiff’s
claims. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985).
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
25
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 76
the plaintiff’s claim. Los Lobos Renewable Power, LLC v. Americulture,
Inc., 885 F.3d 659, 665 (10th Cir. 2018) (quoting Johnson v. Jones,
515 U.S. 304, 314 (1995)). The majority finds satisfaction of this element
because the ministerial exception presents an important First Amendment
issue, which is distinct from the merits of the underlying employment
discrimination claim. Maj. Op. at 26. I agree.
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.
26
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 77
* * *
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, 611 F.3d 1238, 1243 (10th Cir. 2010). For this
review, we consider the evidence in the light most favorable to the
nonmoving party (Mr. Tucker). Id. Summary judgment would be
appropriate if “there is no genuine issue as to any material fact” and the
movant (Faith Bible) “is entitled to judgment as a matter of law.” Id.(quoting Fed. R. Civ. P. 56(c)).
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, 745 F.3d 405, 409 (10th Cir. 2014). I
would follow this approach, determining whether Mr. Tucker was a
minister based on the district court’s assessment of facts that a reasonable
jury could have found.
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, 140 S. Ct. 2049, 2055 (2020).
27
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 78
The parties do not dispute that Faith Bible is a religious body. So we need
only consider whether Mr. Tucker was working as a minister.
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.28
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 79
In Our Lady of Guadalupe, the Supreme Court regarded two teachers
at a religious school as ministers. 140 S. Ct. at 2049. The Court clarified
that “a variety of factors may be important,” including factors beyond
those considered in Hosanna-Tabor. Id. at 2063. The importance of the
factors will vary from case to case. Id. And the “religious institution’s
explanation [of an employee’s role] in the life of the religion in question is
important,” but not dispositive. Id. at 2066. “What matters,” the Court
explained, “is what an employee does.” Id. at 2064 (emphasis added). The
Court explained that teachers at religious schools often act as ministers
when fulfilling the school’s mission of instructing students in matters of
faith:
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.”
29
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 80
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, 717 F.3d 751, 753
(10th Cir. 2013). The district court concluded that a reasonable jury could
have found that under Mr. Tucker’s version, he hadn’t acted as a minister.
Appellant’s App’x vol. 1, at 284. So I would credit Mr. Tucker’s version
and other undisputed facts as summarized in the district court’s order. Id.at 277–82, ¶¶ 1–17.
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.
30
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 81
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.”
31
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 140 S. Ct. at 2056–57; Hosanna-Tabor,
565 U.S. at 191. Mr. Tucker’s title as Chaplain reflects religious
leadership.
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, 140 S. Ct. at 2066.
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.
32
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 83
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.
33
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 84
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., 929 F.2d 360, 362–63 (8th Cir.
1991) (stating that the position of “Chaplain” was “primarily a
‘ministerial’ position” despite the performance of some “secular activities
in that role”); see also Hosanna-Tabor, 565 U.S. at 193 (rejecting the
argument that ministers “perform exclusively religious functions” because
“heads of congregations themselves often have a mix of duties, including
secular ones”). Mr. Tucker had to organize religiously-oriented chapels
and discussion groups “designed to provide opportunities for student
spiritual growth.” Appellant’s App’x vol. 1, at 271. He was also
responsible for spiritual counseling.
* * *
34
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 85
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, 565 U.S. at 191. When Mr. Tucker applied as a
teacher, he stressed his credentials in the ministry, stating that
 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
35
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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., 882 F.3d 655, 659–60
(7th Cir. 2018) (concluding that the ministerial exception was supported by
a teacher’s touting of her experience in teaching religion).
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.” 140 S. Ct. at 2058. The
Court explained that insistence “on rigid academic requirements could have
a distorting effect” because “religious traditions may differ in the degree
of formal religious training thought to be needed in order to teach.” Id.
at 2064. So the absence of requirements for religious training would not
prevent application of the ministerial exception.
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
36
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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).
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.
37
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 88
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
38
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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, 140 S. Ct. at 2065 (noting that
teachers at religious schools often perform religious functions). These
religious responsibilities support ministerial status. See Fratello v.
Archdiocese of N.Y., 863 F.3d 190, 208 (2d Cir. 2017) (concluding that the
substance of a lay principal’s duties supported the ministerial exception
because they entailed “proficiency in religious leadership”).
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, 140 S. Ct. at 2057; Hosanna-Tabor, 565
U.S. at 191. Mr. Tucker acknowledges that these criteria included
consideration of his use of biblical principles and exhortation for his
students to engage in worship and service. Appellant’s App’x vol. 1,
at 208, 216 (“The staff member consistently illuminates Biblical principals
39
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 90
[sic] related to course material in a manner which leads students to
evaluate their personal worldview and/or challenges them to respond via
worship, service, etc.”).
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.
899 F.2d 1329, 1396 (4th Cir. 1990).
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, 565 U.S. at 192; Our Lady of Guadalupe,
140 S. Ct. at 2066. But Mr. Tucker went even further, for he acknowledged
that his “main goal” was to educate students “to help them become more
like Jesus Christ” because Christ was the “center” of his students’
13
He also asserts that school officials told him not to teach particular
doctrines. For this assertion, he presents no evidence.
40
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 91
education. Appellant’s App’x, vol. 2, at 320. Mr. Tucker’s stated goals
support ministerial status.
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., 762 F.3d 1114, 1122
n.7 (10th Cir. 2014) (noting that issues not adequately briefed will not be
considered on appeal).
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
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.
41
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 92
 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, 425 F.3d 492, 495 (D.C. Cir. 1970). No such
requirement exists for the ministerial exception. See Alice-Hernandez v.
Cath. Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003) (“In determining
whether an employee is considered a minister for the purposes of applying
[the ministerial] exception, we do not look to ordination but instead to the
function of the position.”); Elvig v. Calvin Presbyterian Church, 375 F.3d
951, 958 (9th Cir. 2004) (concluding that ordination is not required for the
ministerial exception).
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
42
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 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., 882 F.3d 655, 661
(7th Cir. 2018) (concluding that a religious body was entitled to summary
judgment under the ministerial exception when “at most two of the four
Hosanna-Tabor factors are present”); Conlon v. Intervarsity Christian
Fellowship/USA, 777 F.3d 829, 835 (6th Cir. 2015) (stating that the court
didn’t need to consider two factors because the “ministerial exception
clearly applies” when “formal title and religious function . . . are
present”). Here, though, all of the factors support application of the
ministerial exception. Mr. Tucker bore the titles of chaplain and teacher:
The job title “Chaplain” reflected a role as spiritual leader, and the
school’s handbook regarded teachers as ministers. Mr. Tucker’s role as a
religious leader was apparent not only from his job titles but also in his
responsibilities as the Director of Student Life/Chaplain and as a teacher.
And he touted his religious experience when applying for a job. Given the
prominent role of religion in Mr. Tucker’s positions, he would qualify as a
minister even under his version of the facts.
43
Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 94
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
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.
44