No Interlocutory Appeal of Decision Denying Summary Judgment on Title VII “Ministerial Exception” Defense, Split Tenth Circuit Panel Holds

In Tucker v. Faith Bible Chapel Int’l., No. 20-1230 (10th Cir. June 7, 2022), a 2-1 panel of the Tenth Circuit holds that there is no appellate jurisdiction under the collateral-order doctrine to review the denial of summary judgment on the “ministerial exception” recognized by the U.S. Supreme Court.

Two Supreme Court decisions from the past decade, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), and Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020), carved out a First Amendment exception from employment-discrimination statutes for employees involved in the core activity of ministry or guiding worship for a church, temple, or other religious institutions. In both of these cases, the plaintiffs were schoolteachers with a role in ministry.

The present case also concerns a science teacher at “a Christian school offering Bible-based education from kindergarten through high school.” While he had performed successfully since 2000, 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.”

Tucker filed a federal lawsuit claiming violations Title VII of the Civil Rights Act of 1964, “alleging that the school fired him in retaliation for opposing a racially hostile environment,” and a Colorado common law claim for wrongful termination in violation of public policy. After the district court permitted limited discovery on the ministerial exception, the church moved for summary judgment on that defense. The court denied the motion, holding that the question of “whether Mr. Tucker was a ‘minister’ within the meaning of the ‘ministerial exception’ is genuinely disputed on the evidence presented.”

The defendant church appealed both decisions, invoking jurisdiction under 28 U.S.C. § 1291—which provides for review of “final” district court orders—based on the collateral order doctrine. And appellate jurisdiction was the only issue decided on the appeal.

The panel majority dismisses the appeal. The panel majority first notes that in contrast to the “church autonomy” doctrine— a kindred First Amendment doctrine that immunizes houses of worship from judicial review of belief or doctrine—the ministerial exception is a fact-bound affirmative defense and does not present a question of law. “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.”

The panel majority considers the application of the collateral order doctrine, which renders immediately appealable as “final” orders that “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment.” The Supreme Court has in recent years sought to tap the brakes on this doctrine (see Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017)), especially to prevent fact-based issues from migrating up the appellate channel prematurely, treating it as a “narrow” exception.

The panel majority finally analyzes whether the category of “ministerial exception” cases should be treated as collateral-order cases. It holds that such cases flunk the third element of the test, i.e., that they are effectively unreviewable on appeal.  It holds that in contrast to such recognized collateral orders as qualified, absolute, and sovereign immunity defenses, the “ministerial exception” represents only a defense to liability and does not “immunize[] a religious employer from suit on employment discrimination claims.”

“[E]ven 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 refusal to remand a civil case to state court, to name just a few.”

Nor is the “ministerial exception” a “structural” limitation on the power of courts, holds the panel majority. “Any limitation the ‘ministerial exception’ imposes [on courts] 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.”

In passing, the panel also holds that the “ministerial exception” also fails the first prong of the test for the collateral order doctrine. “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 . . . . 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.”

Dissenting, Judge Bacharach would hold that denial of the “ministerial exception” should be immediately appealable. “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.”

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: