Will McRaney v. N Amer Mission Bd So Baptist

United States Court of Appeals

for the Fifth Circuit

No. 19-60293

Will McRaney,

Plaintiff—Appellant,

versus

The North American Mission Board Of The Southern

Baptist Convention, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:17-CV-80

ON PETITION FOR REHEARING EN BANC

(Opinion – 7/16/2020, 5 Cir., , F.3d

)

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:

The court having been polled at the request of one of its members,

and a majority of the judges who are in regular active service and not

disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Circ. R. 35),

the petition for rehearing en banc is DENIED.

No. 19-60293

In the en banc poll, 8 judges voted in favor of rehearing (Judges

Jones, Smith, Elrod, Willett, Ho, Duncan, Oldham, and Wilson), and 9

judges voted against rehearing (Chief Judge Owen and Judges Stewart,

Dennis, Southwick, Haynes, Graves, Higginson, Costa, and Engelhardt).

ENTERED FOR THE COURT:

___________________________

Stephen A. Higginson

United States Circuit Judge

2

No. 19-60293

James C. Ho, Circuit Judge, joined by Jones, Smith, Elrod,

Willett, and Duncan, Circuit Judges, dissenting from denial of

rehearing en banc:

If religious liberty under our Constitution means anything, it surely

means at least this much: that the government may not interfere in an

internal dispute over who should lead a church—and especially not when the

dispute is due to conflicting visions about the growth of the church. But it

turns out that nothing is sacred, for that is precisely what we are doing here.

The First Amendment forbids government intrusion in “matters of

church government.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140

S. Ct. 2049, 2060 (2020). It secures church “autonomy with respect to

internal management decisions that are essential to the institution’s central

mission.” Id. “And a component of this autonomy is the selection of the

individuals who play certain key roles.” Id.

This case falls right in the heartland of the church autonomy doctrine.

A former Southern Baptist minister brought this suit to protest his dismissal

from church leadership. That fact alone should be enough to bar this suit.

As the saying goes, personnel is policy.

Moreover, this case proves the truth of that old adage. The complaint

acknowledges that the plaintiff was dismissed because he “consistently

declined to accept” church policy regarding “the specific area of starting new

churches, including the selection, assessing and training of church planters.”

He even admits that “this cause of action had its roots in Church policy.”

We should take him at his word. This case is a dispute over a church’s vision

for spreading “the gospel of Jesus Christ through evangelism and church

planting”—a fundamental tenet of faith, not just for the defendant in this

suit, but for hundreds of millions of evangelicals around the world. Put

simply, this suit puts the church’s evangelism on trial.

3

No. 19-60293

Not surprisingly, the district court dismissed this suit as barred by the

First Amendment. We should have affirmed that decision. But the panel did

the opposite. I respectfully dissent from the denial of rehearing en banc.

I.

The following facts are taken directly from Plaintiff’s complaint and

the strategic partnership agreement (“SPA”) that gives rise to this dispute:

The Baptist Convention for Maryland/Delaware (“Maryland/Delaware”) is

a state convention comprised of 560 Baptist churches that works in

cooperation with the Southern Baptist Convention (“SBC”). The North

American Mission Board (“North America”) is a subdivision of the SBC that

“exists to work with churches, associations and state conventions in

mobilizing Southern Baptists as a missional force to impact North America

with the gospel of Jesus Christ through evangelism and church planting.” Its

priorities include assisting churches in “planting healthy, multiplying,

evangelistic SBC churches,” “appointing, supporting, and assuring

accountability for missionaries,” and “providing missions education and

coordinating volunteer missions opportunities for church members.”

Maryland/Delaware and North America have worked together for

some time under the terms of the SPA—a religious document whose stated

purpose is “to define the relationships and responsibilities of

[Maryland/Delaware] and [North America] in areas where the two partners

jointly develop, administer and evaluate a strategic plan for penetrating

lostness through church planting and evangelism.”

Plaintiff Will McRaney is an ordained minister. As the former

executive director of Maryland/Delaware, he guided the direction of the

ministry and organization, as well as the screening and managing of all staff.

He also served as Maryland/Delaware’s designated representative in SPA

negotiations with North America.

4

No. 19-60293

In 2014, North America drafted a new SPA that “gave [North

America] more controls over the financial resources and the hiring,

supervising and firing of staff positions of the state conventions.” North

America then began pressuring Maryland/Delaware—and McRaney in

particular—to accept the new SPA. But McRaney “consistently declined to

accept the newly written SPA.” He “view[ed] the proposed SPA as a

weakening of the autonomy of [Maryland/Delaware] and the relinquishment

of all controls to [North America] in the specific area of starting new

churches, including the selection, assessing and training of church planters.”

In response, North America worked to oust McRaney from his church

leadership position. It advised other Maryland/Delaware leaders that he had

repeatedly refused to meet with North America’s President. It also

threatened to withhold all funding from Maryland/Delaware unless

Maryland/Delaware dismissed McRaney and accepted the new SPA. As

McRaney puts it, North America leaders “g[ave] a one-year notice of

cancellation” of the previous SPA, and “set[] forth in [a] letter . . . false and

libelous accusations against [McRaney]”—all “[a]s a direct result of [his]

refusal to accept the new SPA.” After a series of meetings with North

America, Maryland/Delaware terminated McRaney.

McRaney filed this suit alleging that North America interfered with

his contract with Maryland/Delaware and caused his termination. He also

claims that North America lobbied another religious group to disinvite him

from speaking at a large mission symposium in Mississippi. Finally, he

contends that North America defamed him and caused him emotional

distress by posting a photo of him in its headquarters’ reception area that

“communicate[d] he was not to be trusted and [was] public enemy #1.”

The district court dismissed the suit under the First Amendment,

reasoning that McRaney’s claims would presumably require the court to

5

No. 19-60293

determine whether North America had “valid religious reason[s]” for its

actions. McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, 2019 WL

1810991, at *3 (N.D. Miss. Apr. 24, 2019).

But a panel of this court reversed, holding that “[t]he district court’s

dismissal was premature” because it is “not certain that resolution of

McRaney’s claims will require the court to interfere” with “purely

ecclesiastical questions”—“matters of church government, matters of faith,

or matters of doctrine.” McRaney v. N. Am. Mission Bd. of the S. Baptist

Convention, Inc., 966 F.3d 346, 350–51 (5th Cir. 2020).

II.

“The First Amendment protects the right of religious institutions ‘to

decide for themselves, free from state interference, matters of church

government as well as those of faith and doctrine’”—as the Supreme Court

has repeatedly held, and reminded us again just this year. Guadalupe, 140

S. Ct. at 2055 (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox

Church in N. Am., 344 U.S. 94, 116 (1952)). See also Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186 (2012);

Serbian E. Orthodox Diocese for U.S. & Canada v. Milivojevich, 426 U.S. 696,

721–22 (1976); Watson v. Jones, 80 U.S. 679, 733–34 (1871). The church

autonomy doctrine “does not mean that religious institutions enjoy a general

immunity from secular laws.” Guadalupe, 140 S. Ct. at 2060. “[B]ut it does

protect their autonomy with respect to internal management decisions that

are essential to the institution’s central mission.” Id.

So the district court was right to dismiss this suit, because each of the

three actions taken by the religious organizations that McRaney wishes to

challenge here—decisions about whom to place in leadership, whom to host

at a religious conference, and whom to exclude from one’s headquarters—is

an “internal management decision[] that [is] essential to the institution’s

6

No. 19-60293

central mission.” Id. Each of these claims involves internal, “purely

ecclesiastical” matters of church governance that federal courts have no

business adjudicating. Watson, 80 U.S. at 733. See id. (describing certain

matters as “strictly and purely ecclesiastical in . . . character, . . . over which

the civil courts exercise no jurisdiction,” including “matter[s] which

concern[] theological controversy, church discipline, ecclesiastical

government, or the conformity of the members of the church to the standard

of morals required of them”) (emphasis added).

For example, “the authority to select and control who will minister to

the faithful”—that is, deciding who will lead and who will speak—“is the

church’s alone” because it is “a matter ‘strictly ecclesiastical.’”

Hosanna-Tabor, 565 U.S. at 195 (quoting Kedroff, 344 U.S. at 119). As a

unanimous Supreme Court made clear, “[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

(emphasis added). After all, “imposing an unwanted minister” or

“[a]ccording the state the power to determine which individuals will minister

to the faithful” violates both “the Free Exercise Clause, which protects a

religious group’s right to shape its own faith and mission through its

appointments,” and “the Establishment Clause, which prohibits

government involvement in such ecclesiastical decisions.” Id. at 188–89. See

also Guadalupe, 140 S. Ct. at 2060 (“[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.”)

(quotations omitted); Simpson v. Wells Lamont Corp., 494 F.2d 490, 492 (5th

Cir. 1974) (“Certainly a congregation’s determination as to who shall preach

from the church pulpit is at the very heart of the free exercise of religion.”).

7

No. 19-60293

Likewise, a religious organization’s decision to exclude and

communicate internally about a former affiliate is a protected “internal

management decision.” See, e.g., Hosanna-Tabor, 565 U.S. at 201 (Alito, J.,

concurring) (explaining that “control over [certain] employees” is an

“essential component” of a religious group’s “freedom to speak in its own

voice, both to its own members and to the outside world”) (quotations

omitted); Watson, 80 U.S. at 733 (“[C]ivil courts exercise no jurisdiction”

over “matter[s] which concern[] . . . church discipline, ecclesiastical

government, or the conformity of members of the church to the standard of

morals required of them . . . .”); Whole Woman’s Health v. Smith, 896 F.3d

362, 373 (5th Cir. 2018) (refusing to compel discovery of a third-party

religious group’s “internal communications” in part because the order

“interfere[d] with [the group’s] decision-making processes,” “expose[d]

those processes to an opponent,” and “w[ould] induce similar ongoing

intrusions against religious bodies’ self-government”); cf. Boy Scouts of Am.

v. Dale, 530 U.S. 640, 648 (2000) (“Forcing a group to accept certain

members may impair [its] ability . . . to express those views, and only those

views, that it intends to express.”); see also W. Cole Durham &

Robert Smith, 1 Religious Organizations & the Law § 5:17

(2017) (“[T]he church autonomy case law . . . has resulted in [courts]

declining to take jurisdiction over numerous subject matters related to

religion, including . . . disputes concerning the discipline of church members,

and claims arising from or related to church communications.”).

So it’s no surprise that the district court dismissed this suit. Because

there’s no way to adjudicate this dispute without violating the church

autonomy doctrine. For example, the panel acknowledges that, to determine

whether North America unlawfully interfered with McRaney’s contract with

Maryland/Delaware, a court will have to inquire why Maryland/Delaware

voted to fire McRaney—including whether North America “intentionally

8

No. 19-60293

made false statements about him to [Maryland/Delaware] that resulted in his

termination” or “damaged [his] business relationships”—and if so, whether

to punish North America for doing so. McRaney, 966 F.3d at 349. Likewise,

to determine whether North America’s actions impermissibly deprived

McRaney of a speaking slot at the mission symposium in Mississippi, a court

will need to determine whether North America “got him uninvited to speak

at the mission symposium”—and if so, why. Id. Finally, to hold North

America liable for defamation and intentional infliction of emotional distress,

a court will have to determine why North America circulated an internal

opinion about McRaney and excluded him from its own headquarters—and

then whether to punish North America for doing so.

All of this is anathema to the First Amendment. Decisions about who

should lead, who should preach, and who should be excluded are all

quintessential examples of “internal management decisions” that the

Constitution leaves entirely to the discretion of the church. And this is

especially so where, as here, these decisions were made as the result of a

disagreement over a core mission of the church—establishing new churches

and evangelizing new members.

III.

The panel’s various attempts to justify further proceedings in this case

conflict with bedrock First Amendment doctrine in several additional ways.

At first, the panel suggests that this suit does not implicate the church

autonomy doctrine, because McRaney is merely asking the court to apply

“neutral principles of tort law,” and because dismissal of the case would be

tantamount to giving religious institutions a “preferred position in our

society” by uniquely immunizing them from civil liability. Id. at 348–49, 351.

There are various problems with these rationales, as explained below.

But among the most troubling is this: Under the panel’s logic, no claim would

9

No. 19-60293

ever be subject to the church autonomy doctrine—every civil plaintiff

purports to invoke neutral legal principles, and every application of the church

autonomy doctrine grants religious organizations special treatment.

Moreover, these justifications miss a foundational principle of our

Constitution—that the whole point of the First Amendment is to give

religion a “preferred position in our society.” Id. at 348. See, e.g.,

Hosanna-Tabor, 565 U.S. at 189.

Perhaps in recognition of these difficulties, the panel ultimately

decides to backtrack. In the end, it suggests that it is merely too early in the

case to invoke the church autonomy doctrine—and that the doctrine might

be successfully deployed at a later stage of the litigation. But this too fails for

multiple reasons. It’s internally inconsistent with the panel’s neutral

principles and preferential treatment theories, which would presumably bar

application of the church autonomy doctrine at all stages of the case. It

misunderstands both the scope of and reasoning behind the church autonomy

doctrine. And in any event, the district court already has what the panel says

it needs to wait for—certainty that McRaney’s case will turn on whether

North America had “valid religious reason[s]” for its actions. McRaney, 966

F.3d at 351. Indeed, that standard was met with the very first docket entry in

the case—it is clear from the face of McRaney’s complaint (and further

confirmed in his later filings) that this case is all about whether North

America’s actions were based on “valid religious reason[s].” Id.

A.

To begin with, the panel contends that the church autonomy doctrine

does not apply here because this suit only requires the court to apply “neutral

principles of tort law.” Id. at 349. This is wrong for at least three reasons.

First, the panel misinterprets the reference to “neutral principles of

law” in Jones v. Wolf, 443 U.S. 595, 602–04 (1979). To be sure, Jones held

10

No. 19-60293

that courts may employ “neutral principles of law as a means of adjudicating

a church property dispute”—specifically, that courts may “examine certain

religious documents, such as a church constitution, for language of trust in

favor of the general church.” Id. at 604. But this was not to allow “religious

autonomy concerns [to] be ignored whenever an ostensibly neutral or secular

principle or policy seems relevant.” 1 Rel. Orgs. § 5:16. Rather, it was

designed “to protect religious autonomy,” including “internal formulations

of religious doctrine and polity,” “by assuring that secular courts would

intervene in religious affairs only when the religious community itself had

expressly stated in terms accessible to a secular court how a particular

controversy should be resolved.” Id. (emphases added). Jones thus includes

the following cautionary note: “If . . . the interpretation of the instruments

of ownership . . . require[s] the civil court to resolve a religious controversy, then

the court must defer to the resolution of the doctrinal issue by the authoritative

ecclesiastical body.” 443 U.S. at 604 (emphases added).

So Jones is not an invitation to courts to decide all church property

disputes—let alone all other manner of internal church disputes. Rather, it’s

an invitation to churches, where they deem it appropriate, to ask courts to

assist them in resolving certain church property disputes.

Moreover, the panel’s theory that this suit should be allowed because

it involves only “neutral principles of tort law” is tantamount to saying that

any plaintiff can litigate any case against a church, so long as he invokes a legal

principle that complies with Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872 (1990). After all, Smith ostensibly

allows the government to impose “neutral law[s] of general applicability” on

the religious and non-religious alike, so long as such laws are reasonably

related to a legitimate government interest. See id. at 879, 881 & n.1. But the

Supreme Court unanimously rejected this position in Hosanna-Tabor. There

the government attempted to apply federal non-discrimination law to a

11

No. 19-60293

church on the ground that the law complied with Smith. See 565 U.S. at 189

(“The EEOC and [Plaintiff] . . . contend that our decision in [Smith]

precludes recognition of a ministerial exception.”). But that would require

reading Smith to overturn over a century of church autonomy precedent. Not

surprisingly, then, the Supreme Court dismissed this argument as having “no

merit,” noting that Smith does not govern “internal church decision[s] that

affect[] the faith and mission of the church itself.” Id. at 190. See also 1 Rel.

Orgs. § 5:12 (noting that Hosanna-Tabor “affirmed . . . that the principle of

church autonomy prevails over a neutral and generally-applicable law[] if it

interferes with a religious organization’s dismissal of an unwanted

minister”). The panel’s “misguided application” of Jones “invokes external

neutral standards to override religious autonomy,” “profoundly weaken[ing]

the protection [that] the religious autonomy cases have long provided against

government intrusion in religious affairs,” and “tak[ing] state power into

protected domains in which []binding religious autonomy cases do not allow

it to go.” Id. at § 5:16.1

And consider this: If an appeal to “neutral principles of tort law”

were all it took to sue a religious institution, it would be the exception that

swallowed the rule. Under Guadalupe and Hosanna-Tabor, the church

autonomy doctrine immunizes religious institutions from various

anti-discrimination claims. See also id. at § 5:12 (noting that the Court’s

decision to allow church autonomy to bar suit brought under “a leading piece

of federal civil rights legislation” only “demonstrates [the doctrine’s] reach

and power”). Surely the panel would not contend that anti-discrimination

1

In any event, compliance with Smith is hardly the hallmark of First Amendment

fidelity, considering that “[c]ivil rights leaders and scholars have derided . . . Smith . . . as

‘the Dred Scott of First Amendment law.’” Horvath v. City of Leander, 946 F.3d 787, 794

(5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part) (citing

authorities).

12

No. 19-60293

laws are non-neutral legal principles. So if the panel is right, then Guadalupe

and Hosanna-Tabor must be wrong.

Second, the Supreme Court has never extended the “neutral

principles of law” approach beyond the context of church-property disputes.

To the contrary, the Court has “intimat[ed]” that the church autonomy

doctrine “cannot be brushed aside as irrelevant or controlled by the ‘neutral

principles’ rule of Jones v. Wolf merely because it is raised in defense to

common law claims.” Id. See also id. (noting that in Hosanna-Tabor, “the

Court specifically mentioned contract and tort claims . . . as settings where

the ministerial exception might apply”). In fact, the Supreme Court and

lower courts have invoked the church autonomy doctrine across a broad

range of claims—up to and even including church property disputes. See id.

at § 5:17 (citing cases that “decline[d] to take jurisdiction over numerous

subject matters related to religion, including . . . disputes over church property,

disputes concerning religious employment, disputes between ministers or

church leaders and the church, claims against clergy for malpractice or

breach of fiduciary duty, claims against churches or church leaders for

negligent hiring or poor supervision of employees, disputes concerning the

discipline of church members, and claims arising from or related to church

communications.”) (emphasis added).

Finally, the panel opinion violates our rule of orderliness. In Simpson,

a dismissed pastor, like McRaney, claimed that his suit could be resolved “on

the basis of ‘neutral principles of law,’ which c[ould] be applied without

establishing any particular view or interpretation of religious doctrine.” 494

F.2d at 493. His suit only required the court to determine secular questions,

he claimed—namely, whether he was fired for “his views on race and merger

of the segregated church organization, and because of the color of his wife’s

skin.” Id. This was not a “church dispute,” he theorized, but a secular

13

No. 19-60293

“racial dispute.” Id. In short, “Simpson would narrowly limit ecclesiastical

disputes to differences in church doctrine.” Id. (emphases added).

We rejected the argument. In doing so, we noted that the pastor’s

crabbed view of the church autonomy doctrine contradicted the “‘spirit of

freedom for religious organizations’ . . . reflected in the Supreme Court’s

decisions”—including the “‘power to decide for themselves, free from state

interference, matters of church government as well as those of faith and

doctrine.’” Id. (quoting Kedroff, 344 U.S. at 116).

B.

The panel also contends that invoking the church autonomy doctrine

here would “impermissibly place a religious [institution] in a preferred

position in our society,” and allow “religious entities [to] effectively

immunize themselves from judicial review of claims brought against them.”

McRaney, 966 F.3d at 348, 351.

But the whole point of the First Amendment, of course, is to privilege

religion. As the Supreme Court has unanimously stated, “the text of the

First Amendment itself . . . gives special solicitude to the rights of religious

organizations.” Hosanna-Tabor, 565 U.S. at 189.

That we need to be reminded of this may be what is most alarming

about this case. It is widely understood (or at least it used to be) that “[w]e

are a religious people whose institutions presuppose a Supreme Being.”

Zorach v. Clauson, 343 U.S. 306, 313 (1952). “Prayers in our legislative halls;

the appeals to the Almighty in the messages of the Chief Executive; the

proclamations making Thanksgiving Day a holiday; ‘so help me God’ in our

courtroom oaths—these and all other references to the Almighty . . . run

through our laws, our public rituals, [and] our ceremonies.” Id. at 312–13.

14

No. 19-60293

So it should be beyond dispute that, “[w]hen the state encourages

religious instruction or cooperates with religious authorities . . . it follows the

best of our traditions. For it then respects the religious nature of our people

and accommodates the public service to their spiritual needs. To hold that it

may not would be to find in the Constitution a requirement that the

government show a callous indifference to religious groups.” Id. at 313–14.

In short, protecting religious institutions from government

interference is not just the point of the church autonomy doctrine that the

Supreme Court has recognized for nearly 150 years—it is foundational to

who we are as Americans.

C.

Having initially intimated that the church autonomy doctrine can

never bar cases like McRaney’s, the panel switches gears. It suggests that it

is merely too early to dismiss the case on that ground. As the panel now

theorizes, it is not yet “certain” that this case will require the court to

examine whether North America acted for “valid religious reason[s].”

McRaney, 966 F.3d at 351. North America must present some “evidence” of

these religious reasons before a court may consider dismissal on First

Amendment grounds. Id.

Again, this approach is internally inconsistent with the panel’s neutral

principles and preferential-treatment concerns, which would logically apply

at all stages of a lawsuit. It is also wrong for a number of additional reasons.

To begin with, we have no right to condition application of the church

autonomy doctrine on a religious institution’s ability to produce “evidence”

that it had “valid religious reasons” for its actions. Id. To the contrary, the

Supreme Court has been very clear that the church autonomy doctrine does

not “safeguard a church’s decision to fire a minister only when it is made for

a religious reason.” Hosanna-Tabor, 565 U.S. at 194 (emphasis added). “[A]

15

No. 19-60293

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.” Guadalupe, 140 S. Ct. at 2060 (emphases

added). That is why “the general principle of church autonomy” guarantees

“independence,” not only in “matters of faith and doctrine,” but also in

“matters of internal government.” Id. at 2061.

The reason for the Court’s categorical approach in this sphere is

simple: Secular courts are not competent to determine what constitutes a

“valid religious reason”—let alone whether a party has produced sufficient

evidence of one. See, e.g., Milivojevich, 426 U.S. at 713 (“For civil courts to

analyze whether the ecclesiastical actions of a church . . . are . . . ‘arbitrary’

must inherently entail inquiry into [what] . . . canon or ecclesiastical law

supposedly requires the church . . . to follow . . . . But this is exactly the

inquiry that the First Amendment prohibits.”); Watson, 80 U.S. at 733

(“[C]ivil courts exercise no jurisdiction” over “matter[s] which concern[]

theological controversy.”).

Moreover, forcing religious institutions to defend themselves on

matters of internal governance is itself a tax on religious liberty. See, e.g.,

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979) (warning that

“the very process of inquiry” into “the good faith of [a] position asserted by

. . . clergy-administrators and its relationship to [the organizations’] religious

mission” “may impinge on the rights guaranteed by the Religion Clauses”);

Hosanna-Tabor, 565 U.S. at 205–06 (Alito, J., concurring) (“[T]he mere

adjudication of . . . questions [regarding the “real reason” for the dismissal of

a religious employee] would pose grave problems for religious autonomy: It

would require calling witnesses to testify about the importance and priority

of [a] religious doctrine . . . , with a civil factfinder sitting in ultimate judgment

of what the accused church really believes, and how important that belief is

to the church’s overall mission.”); Whole Woman’s Health, 896 F.3d at 373

16

No. 19-60293

(finding it “self-evident” that enforcing a subpoena against a third-party

religious organization would “chill[]” the group’s activities and

“undermine[]” its ability to “conduct frank internal dialogue and

determinations”).

Indeed, by forcing a religious institution to produce “evidence” of

valid religious reasons for its actions, the panel is approving the very kind of

regime that the Supreme Court found so odious in Corporation of the Presiding

Bishopric of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.

327 (1987). “[I]t is a significant burden on a religious organization to require

it, on pain of substantial liability, to predict which of its activities a secular

court will consider religious. The line is hardly a bright one, and an

organization might understandably be concerned that a judge would not

understand its religious tenets and sense of mission. Fear of potential liability

might affect the way an organization carrie[s] out what it underst[ands] to be

its religious mission.” Id. at 336.

Finally, even accepting the panel’s incorrect standard, it is already

obvious from the face of the complaint that litigating this dispute will

inevitably require inquiry into North America’s “valid religious reason[s].”

McRaney, 966 F.3d at 351. McRaney himself argues that North America took

action precisely because he refused to accept church policy in “the specific

area of starting new churches, including the selection, assessing and training

of church planters.” He likewise admits in his response to the motion to

dismiss that “this cause of action had its roots in Church policy” and “began

as a battle of power and authority between two religious organizations.”

***

It should not be difficult for the district court to dismiss this case again

on remand, even accepting the incorrect standards set forth by the panel.

McRaney admitted, both in his complaint and elsewhere, that this case is

17

No. 19-60293

rooted in a dispute over church policy. Those statements were not

mentioned by the panel, and they should be enough to show on remand that

there is “evidence” that this case will turn on whether there are “valid

religious reason[s]” behind the actions challenged here. Id.

I nevertheless find the panel decision troubling because it invites

future challenges to internal church decisions based on “neutral principles of

tort law.” Id. at 349. And no doubt future plaintiffs will be less candid than

McRaney in admitting the religious motivations at the heart of their disputes.

The denial of rehearing en banc in this case is accordingly an

“ominous sign” and “grave cause for concern” for “those who value

religious freedom.” Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2433 (2016)

(Alito, J., dissenting from the denial of certiorari). I respectfully dissent.

18

No. 19-60293

Andrew S. Oldham, Circuit Judge, joined by Smith, Willett,

Duncan, and Wilson, Circuit Judges, dissenting from the denial of

rehearing en banc:

The Supreme Court has told us that the judicial power of the United

States does not extend to ministry disputes. Watson v. Jones, 80 U.S. 679, 727

(1871); see also Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,

2059–61 (2020). This case should’ve ended with a straightforward

application of that doctrine. Dr. McRaney got into a ministry dispute with

the Baptist Convention of Maryland/Delaware (“BCMD”) and the North

American Mission Board. The source of that dispute? McRaney did not share

the religious organizations’ ministry vision for church planting. So BCMD

voted to terminate McRaney. Then McRaney brought the ecclesiastical

dispute to the civil courts. The ecclesiastical-autonomy doctrine requires us

to stay out of it. But our panel decision puts us in the middle of it. Indeed, the

district court on remand is tasked with determining whether the ecclesiastical

organizations have “valid religious reasons” for their actions. I respectfully

dissent.

I.

As always, I start with the Constitution’s original public meaning. The

ecclesiastical-autonomy doctrine has a rich historical pedigree. And that

history informed the meaning of the Constitution and its Religion Clauses at

the Founding.

A.

In the Middle Ages, clergy were categorically exempt from the reach

of civil courts. See Felix Makower, The Constitutional

History and Constitution of the Church of England 384–

94 (London, 1895). During the reign of the Saxon kings, civil courts had no

jurisdiction over clergy accused of even clearly secular crimes unless and

19

No. 19-60293

until the bishop divested them of their spiritual authority. Leonard W.

Levy, Origins of the Fifth Amendment 43 (1968); see, e.g.,

Wihtræd c. 6 (695) (“If a priest allow of illicit intercourse; or neglect the

baptism of a sick person, or be drunk to that degree that he cannot do it; let

him abstain from his ministry until the doom of the bishop.”); Alfred c. 21

(892) (“If a priest kill another man, . . . let the bishop secularize him; then let

him be given up from the minister . . . .”); Edward and Guthrum c. 4 § 2

(906) (“If a priest commits a crime worthy of death, he shall be seized and

kept until the bishop’s judgment.”).1 And during the reign of King Edgar the

Peaceful (959–975), the Church required all disputes between clergymen to

be addressed before bishops and not secular courts. See Makower, supra,

at 389. Spiritual supervisors retained exclusive competence to discipline

clergy, and civil courts could not intervene in church matters. See id. at 389–

90.

The Church’s exclusive jurisdiction over clergy served as a one-way

jurisdictional boundary. See id. at 390–91. Although civil courts were

powerless to interfere with the matters affecting clergy or other ministerial

prerogatives, religious authorities extended their power into the operation of

civil courts in a variety of ways. See id. at 385–86. For example, ecclesiastical

leaders served alongside a “high civil official” on civil courts. Id. at 384. King

Edgar mandated that “the bishop of the shire and the ealdorman” sit

together as a civil judicial body empowered to apply both “the law of God”

and “the secular law.” Edgar III c. 5. Thus, while civil officials had no role in

ecclesiastical matters, ecclesiastical officials adjudicated both sectarian and

secular matters. See Makower, supra, at 384–85; William Richard

1

Obviously, the present case involves only non-criminal controversies and, beyond

that, is limited to disputes between and among ecclesiastical officials. The aforementioned

examples are meant only to illustrate the ancient roots of ecclesiastical jurisdiction.

20

No. 19-60293

Wood Stephens, The English Church from the Norman

Conquest to the Accession of Edward I at 49 (1901).

The Norman Conquest further solidified the divide. Around 1076,

King William I issued an ordinance formally divesting civil courts of subject

matter jurisdiction over religious matters. See Ordinance of William I

Separating the Spiritual and Temporal Courts (“[N]o bishop . . . shall . . .

bring before the judgment of secular men any case which pertains to the rule

of souls.”); 1 William Stubbs, The Constitutional History

of England in Its Origin and Development 307–08 (3d ed.

Oxford, 1897). The ordinance established separate ecclesiastical courts.

Stephens, supra, at 49. As a result, bishops and other clergy were granted

exclusive jurisdiction over all cases “pertain[ing] to the rule of souls.”

Ordinance of William I. Not only did the Church retain exclusive personal

jurisdiction over cases involving its clergymen, it also gained exclusive

subject matter jurisdiction over disputes involving “the canons and the

episcopal laws.” Ibid.; accord Makower, supra, at 392. The resulting

changes were legion. See Stubbs, supra, at 307–08.

Over the next several centuries, the civil and ecclesiastical courts

continued to dispute the boundaries of their respective jurisdictions. See

Makower, supra, at 392–93. The courts each strived to extend their

competence to reach additional categories of cases claimed by the other. Ibid.

In their struggle, “[t]he lay courts employed new weapons” while “the

clergy resorted to the old.” Harold W. Wolfram, The “Ancient and Just”

Writ of Prohibition in New York, 52 Colum. L. Rev. 334, 334 (1952).

For example, the clergy threatened to excommunicate civil judges

who infringed ecclesiastical jurisdiction, while civil courts issued writs of

prohibition. Ibid. Writs of prohibition were injunctive. See Norma Adams,

The Writ of Prohibition to Court Christian, 20 Minn. L. Rev. 272, 274

21

No. 19-60293

(1936). Blackstone described them as necessary to secure the jurisdiction of

the King’s Bench over secular controversies. 3 William Blackstone,

Commentaries *112. When issued, they stripped ecclesiastical

jurisdiction and required transfer of the case to a civil court. See Adams,

supra, at 274.

But a writ of prohibition was not always the last word. See id. at 291–

92. An ecclesiastical court could challenge a writ of prohibition with a

competing writ of consultation seeking return of the suit to its court. Ibid.

The writs of prohibition and consultation created a procedural mechanism

for deciding the appropriate venue for resolution of particular controversies.

But they did precious little to clarify the jurisdictional boundary between the

secular and sacred. The line between the two remained an oft-litigated source

of controversy for centuries to come.

Consider for example the famed case of Nicholas Fuller. See Nicholas

Fuller’s Case (1607), 12 Co. Rep. 41 (K.B.). There, the High Commission—

an ecclesiastical court—hauled Fuller before it to answer for various

contemptuous statements he made against high commissioners and other

religious authorities. See Roland G. Usher, Nicholas Fuller: A Forgotten

Exponent of English Liberty, 12 Am. Hist. Rev. 743, 747–48 (1907). But

Fuller, a rabble-rousing lawyer, disputed the jurisdiction of the High

Commission and sought a writ of prohibition to transfer the case to the

King’s Bench. Id. at 749–50. Fuller argued that because his case implicated

slander and contempt—purely secular crimes—jurisdiction could not lie in

an ecclesiastical court. See 12 Co. Rep. at 42; Usher, supra, at 749–50. The

King’s Bench issued the writ prohibiting ecclesiastical jurisdiction based on

the secular crimes for which Fuller stood accused. Usher, supra, at 750. But

upon reconsideration, Sir Edward Coke, then Chief Justice of the King’s

Bench, issued a writ of consultation partially returning jurisdiction to the

High Commission. 12 Co. Rep. at 43–44. In doing so, Coke recognized and

22

No. 19-60293

reaffirmed the jurisdictional boundary between ecclesiastical and civil

jurisdiction.

The important point for present purposes is not the precise contours

of that boundary, which obviously changed over time. What matters is that

the jurisdictional line prohibiting civil courts from intruding on ecclesiastical

matters is an ancient one. It goes back to the Middle Ages. It has been part of

England’s formal law since William the Conqueror. It’s so entrenched in

English history that even Coke—the seventeenth century’s fiercest

champion of civil jurisdiction and the common law—respected it. And

although there were disputes about boundaries of ecclesiastical jurisdiction

over laypersons like Nicholas Fuller, there could be little dispute about

ecclesiastical jurisdiction over ecclesiastical matters like ministry disputes

and discipline.

B.

English philosopher John Locke also recognized the jurisdictional

boundary between religious and civil authority. His Letter Concerning

Toleration sought “to distinguish exactly the business of civil government

from that of religion, and to settle the just bounds that lie between the one

and the other.” John Locke, A Letter Concerning Toleration

10 (J. Brook ed., 1796) (1689). Locke believed it was “the duty of the civil

magistrate, by the impartial execution of equal laws, to secure unto all the

people in general, and to every one of his subjects in particular, the just

possession of these things belonging to this life.” Id. at 11. But he recognized

that because the “jurisdiction of the magistrate reaches only to these civil

concernments . . . it neither can nor ought in any manner to be extended to the

salvation of souls.” Ibid. (emphasis added); cf. Ordinance of William I.

Locke’s work was foundational to the original public understanding of

church autonomy in America. See Michael W. McConnell, The Origins and

23

No. 19-60293

Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.

1409, 1431 (1990) (“Locke’s ideas . . . are [an] indispensable part of the

intellectual backdrop for the framing of the free exercise clause.”); Carl H.

Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early

American Republic, 2004 BYU L. Rev. 1385, 1420 (2004) (“Locke’s theory

was imbibed by most educated Americans . . . .”); Noah Feldman, The

Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346, 354

(2002) (“Locke’s version of the idea of liberty of conscience formed the basic

theoretical ground for the separation of church and state in America.”). For

example, Baptist preacher John Leland made almost verbatim Lockean

arguments in favor of disestablishment: “The rights of conscience should

always be considered inalienable—religious opinions a[re] not the objects of

civil government, nor any way under its jurisdiction.” John Leland, The

Yankee Spy: Calculated for the Religious Meridian of Massachusetts, but Will

Answer for New Hampshire, Connecticut, and Vermont, Without Any Material

Alterations (1794), reprinted in The Writings of the Late Elder

John Leland 213, 228 (1845). But Locke didn’t go far enough for many

Evangelicals. That’s because Locke was a legislative supremacist—he

believed a conflict between the law and matters of faith “does not take away

the obligation of that law, nor deserve a dispensation.” A Letter

Concerning Toleration, supra, at 51. Locke attempted to rationalize

his position by arguing that such conflicts would “seldom happen.” Ibid.

That was hollow solace to “[t]he Baptists languishing in the

Culpepper jail and the Presbyterians fighting legislative interference with

their form of church governance.” McConnell, supra, at 1445. So

Evangelicals in America argued for disestablishment on grounds that

establishment tended to corrupt religion through governmental interference.

See, e.g., Declaration of the Virginia Association of Baptists (Dec. 25, 1776),

reprinted in 1 The Papers of Thomas Jefferson 660–61 (Julian P.

24

No. 19-60293

Boyd ed., 1950) [hereinafter Papers of Thomas Jefferson] (arguing

that preachers should not be “Officers of the State” because “those whom

the State employs in its Service, it has a Right to regulate and dictate to; it may

judge and determine who shall preach; when and where they shall preach; and

what they must preach.”). And they argued that ecclesiastical jurisdiction

must be defined by looking to “what matters God is concerned about,

according to the conscientious belief of the individual.” McConnell, supra,

at 1446.

James Madison echoed those views. Madison’s personal opinions did

not always accord with the Religion Clauses he helped frame.2 So I reference

him simply as one datum in the public understanding of ecclesiastical

jurisdiction. In 1785, when Virginia’s legislature sought to pass a bill

providing for compulsory support of religion, Madison penned the then-

anonymous Memorial and Remonstrance Against Religious Assessments.

Madison objected “[b]ecause if Religion can be exempt from the authority of

the Society at large, still less can it be subject to that of the Legislative Body.

The latter are but the creatures and vicegerents of the former. Their

jurisdiction is both derivative and limited.” James Madison, Memorial and

Remonstrance Against Religious Assessments (June 20, 1785), in 5 The

Founders’ Constitution 82 (Philip B. Kurland & Ralph Lerner eds.,

1987). And further emphasizing the line between ecclesiastical jurisdiction

and civil authority, Madison objected:

2

To take one example, the First Amendment plainly allows Congress to have a

Chaplain. See Marsh v. Chambers, 463 U.S. 783 (1983). As a member of the first Congress,

Madison voted for the bill that established the Chaplain. See 1 Annals of Cong. 891

(1789). Yet many years later, he expressed his personal view that the office was

unconstitutional. See Elizabeth Fleet, Madison’s “Detached Memoranda,” 3 Wm. & Mary

Q. 534, 558 (1946).

25

No. 19-60293

Because the Bill implies either that the Civil Magistrate is a

competent Judge of Religious Truth; or that he may employ

Religion as an engine of Civil policy. The first is an arrogant

pretension falsified by the contradictory opinions of Rulers in

all ages, and throughout the world: the second an unhallowed

perversion of the means of salvation.

Id. at 83.

And even Thomas Jefferson—who had little or no sympathy for

America’s churches—evoked ecclesiastical jurisdiction. (Query, however,

whether he did so unwittingly.) In 1801, the Danbury Baptist Association

wrote to President-elect Jefferson, explaining that their “[s]entiments are

uniformly on the side of Religious Liberty” and expressing hope that

Jefferson would recognize that religion “is at all times and places a Matter

between God and Individuals.” 35 Papers of Thomas Jefferson,

supra, at 407–09. Jefferson saw the letter as providing an opportunity “to

reprimand his clerical and Federalist opponents and to propagate his own,

profoundly anticlerical, vision of the relationship of religion to politics.”

Philip Hamburger, Separation of Church and State 144

(2002). Three months later, Jefferson responded:

Believing with you that religion is a matter which lies solely

between Man & his God, that he owes account to none other

for his faith or his worship, that the legitimate powers of

government reach actions only, & not opinions, I contemplate

with sovereign reverence that act of the whole American

people which declared that their legislature should “make no

law respecting an establishment of religion, or prohibiting the

free exercise thereof,” thus building a wall of separation

between Church & State.

36 Papers of Thomas Jefferson, supra, at 258.

26

No. 19-60293

Jefferson’s wall metaphor went almost completely unnoticed in the

nineteenth century. See Hamburger, supra, at 162–64. And it was

generally misunderstood in the twentieth century: “[W]hat should be

regarded as an important feature of religious freedom under constitutionally

limited government too often serves as a slogan, and is too often employed as

a rallying cry, not for the distinctiveness and independence of religious

institutions, but for the marginalization and privatization of religious faith.”

Richard W. Garnett, Pluralism, Dialogue, and Freedom: Professor Robert Rodes

and the Church-State Nexus, 22 J.L. & Religion 503, 504 (2006–2007).

The Supreme Court invoked it, see Everson v. Bd. of Educ., 330 U.S. 1, 16

(1947), but not without criticism, see Wallace v. Jaffree, 472 U.S. 38, 107

(1985) (Rehnquist, C.J., dissenting) (“Whether due to its lack of historical

support or its practical unworkability, the Everson ‘wall’ has proved all but

useless as a guide to sound constitutional adjudication.”). And in the twenty-

first century, it appears the Supreme Court has relegated Jefferson’s “wall”

to dissenting opinions. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.

2067, 2105 (2019) (Ginsburg, J., dissenting); Van Orden v. Perry, 545 U.S.

677, 708 (2005) (Stevens, J., dissenting).

Of interest here, however, Jefferson did not invent the metaphor.

Before Jefferson, Roger Williams invoked the wall as an aspirational “image

of the purity he sought in religion.” Hamburger, supra, at 38. Before

Williams was Richard Hooker. See id. at 32–38 (explaining how the wall

between church and state “first became widely known in England when

[Anglican apologist] Richard Hooker ungenerously used it to characterize the

position of Protestant dissenters who sought to purify the English church”).

And before that, Christians had used the “ancient phrase,” id. at 3, since the

time of Jesus. See Garnett, supra, at 507 (noting that the separation of church

and state was “an ancient Western teaching rooted in the Bible” (quoting

John Witte, Jr., God’s Joust, God’s Justice: Law and

27

No. 19-60293

Religion in the Western Tradition 210 (2006))). Early

Christians invoked the wall to “differentiate[] between civil and ecclesiastical

jurisdiction—between the powers of regnum and sacerdotium.”

Hamburger, supra, at 23. And “they often took for granted that church

and state were distinct institutions, with different jurisdictions and powers.”

Id. at 21.

II.

Consistent with the history recounted above, the Supreme Court has

held that the ecclesiastical-autonomy doctrine carries jurisdictional

consequences. In Watson v. Jones, two competing church factions invoked

civil jurisdiction to resolve their dispute over church property. 80 U.S. at

691–92. The dispositive issue was jurisdictional—namely, whether the

judicial power of the United States extended to such ecclesiastical disputes.

See id. at 732–33. The Court held that churches, rather than courts, have the

final say over disputes implicating “theological controversy, church

discipline, ecclesiastical government or the conformity of the members of the

church to the standards of morals required.” Ibid. The upshot: over

ecclesiastical and religious controversies, “civil courts exercise no

jurisdiction.” Id. at 733.

Of course, “‘jurisdiction’ . . . is a word of many, too many, meanings.”

Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006) (quotation omitted). And

the “profligate use of the term” has caused much confusion. See United Pac.

R.R. Co. v. Bhd. of Locomotive Eng’r & Trainmen Gen. Comm. of Adjustment

Cent. Region, 558 U.S. 67, 81–83 (2009) (describing the general confusion

caused by courts using the word “jurisdiction” to refer to various unrelated

legal concepts).

But the Watson Court emphasized that it really meant what it said. See

80 U.S. at 732–33. It explained that a civil court wielding the judicial power

28

No. 19-60293

to settle an ecclesiastical dispute would be tantamount to a church “try[ing]

one of its members for murder, and punish[ing] him with death or

imprisonment.” Id. at 733. Such a sentence would “be utterly disregarded by

any civil court” because the crime of murder falls within the exclusive

jurisdiction of civil authorities. Ibid. Similar, the Court explained, is the

exclusive jurisdiction of a church to settle ecclesiastical or ministerial

disputes. Id. at 733–34. The Supreme Court later anchored Watson’s

jurisdictional holding in the First Amendment. See Kedroff v. St. Nicholas

Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)

(noting that the Watson “opinion[] radiates . . . a spirit of freedom for

religious organizations” and “an independence from secular control or

manipulation”). And the Court reaffirmed it in 1976. See Serbian E. Orthodox

Diocese for U.S. & Canada v. Milivojevich, 426 U.S. 696, 713 (1976)

(preventing courts from inquiring into church personnel decisions in

observation of “the general rule that religious controversies are not the

proper subject of civil court inquiry”). So far so neat.

In subsequent cases, however, the Court created contrary rules. See,

e.g., Jones v. Wolf, 443 U.S. 595, 602 (1979) (explaining that “a State is

constitutionally entitled to adopt neutral principles of law as a means of

adjudicating a church property dispute”); Emp. Div. v. Smith, 494 U.S. 872

(1990) (purporting to exclude neutral laws of general applicability from First

Amendment scrutiny). Then in Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. E.E.O.C., the Supreme Court unanimously rejected the proposition

that cases like Smith preclude ecclesiastical exemptions to neutral laws. See

565 U.S. 171, 189–90 (2012). At the same time, Hosanna-Tabor mentioned in

a footnote that part of the ecclesiastical-autonomy doctrine “operates as an

affirmative defense to an otherwise cognizable claim, not a jurisdictional

bar.” Id. at 195 n.4. And while Our Lady of Guadalupe broadly reaffirmed

ecclesiastical autonomy in matters of faith, ministry, doctrine, and church

29

No. 19-60293

governance, it did not have occasion to consider whether the doctrine retains

jurisdictional consequences. Cf. 140 S. Ct. at 2060 (“[C]ourts are bound to

stay out of employment disputes involving those holding certain important

positions with churches and other religious institutions.”).3

Since Hosanna-Tabor, confusion over the ecclesiastical-autonomy

doctrine has increased. Some courts still see it as jurisdictional. See, e.g.,

Flynn v. Estavez, 221 So. 3d 1241, 1247 (Fla. Dist. Ct. App. 2017) (“In Florida,

courts have interpreted the doctrine as a jurisdictional bar, meaning a claim

should be dismissed upon a determination that it requires secular

adjudication of a religious matter.”(quotation omitted)); Bigelow v. Sassafras

Grove Baptist Church, 786 S.E.2d 358, 365 (N.C. Ct. App. 2016) (noting “the

ecclesiastical abstention doctrine . . . is a jurisdictional bar to courts

adjudicating ecclesiastical matters of a church”); In re St. Thomas High Sch.,

495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016), appeal dism’d

sub nom. St. Thomas High Sch. v. M.F.G., 2016 Tex. App. LEXIS 5035 (Tex.

App.—Houston [14th Dist.] July 12, 2016, no pet.) (noting the church-

autonomy doctrine is “a threshold jurisdictional question”). Those courts

think Hosanna-Tabor left Watson’s broader rule undisturbed. See, e.g., Church

of God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 S.W.3d 146, 157

3

If the ecclesiastical-autonomy doctrine retains jurisdictional consequences, it’s

not clear they come from the First Amendment. After all, the text of that Amendment does

not purport to limit the judicial power of the United States—unlike say the Eleventh

Amendment. See U.S. Const. amend. XI (“The Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.”). On the other hand, the Supreme Court has made clear that States

enjoy sovereign immunity outside of the Eleventh Amendment—and that immunity carries

jurisdictional consequences. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73

(2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 72–73 (1996). It’s possible that the

jurisdictional consequences of the ecclesiastical-autonomy doctrine likewise come from the

original public meaning of Article III.

30

No. 19-60293

(Tenn. 2017) (recognizing that the “ecclesiastical abstention doctrine

predates the ministerial exception by almost a century” and concluding

Hosanna-Tabor “did not address” that doctrine).

But others think the Hosanna-Tabor footnote necessitates a

reexamination of the jurisdictional consequences of ecclesiastical autonomy.

See, e.g., Doe v. First Presbyterian Church U.S.A. of Tulsa, 421 P.3d 284, 290–

91 (Okla. 2017) (noting the church-autonomy doctrine “operates as an

affirmative defense” (quoting Hosanna-Tabor, 565 U.S. at 195 n.4)); St.

Joseph Catholic Orphan Soc’y v. Edwards, 449 S.W.3d 727, 737 (Ky. 2014)

(“[T]he ecclesiastical-abstention doctrine is an affirmative defense.”); Pfeil

v. St. Mathews Evangelical Lutheran Church of Unaltered Augsburg Confession

of Worthington, 877 N.W.2d 528, 534–35 (Minn. 2016) (reversing course on

previous holding and noting “Hosanna-Tabor leads us to conclude that the

ecclesiastical abstention doctrine is not a jurisdictional bar”).

Of course, it’s not our job to decide whether Watson remains binding.

It remains binding on us until the Supreme Court says otherwise. See, e.g.,

State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (noting “it is [the Supreme]

Court’s prerogative alone to overrule one of its precedents”). And that’s

reason enough to justify rehearing this case en banc. See Fed. R. App. P.

35(b)(1)(A) (listing as a ground for rehearing that “the panel decision

conflicts with a decision of the United States Supreme Court”).

Moreover, this case is rich with questions of exceptional importance.

See Fed. R. App. P. 35(a)(2). For example, ecclesiastical jurisdiction at one

time extended to certain torts, like defamation, that today seem purely

secular. See 10 Edw. 2, stat. 1 c. 4 (1316) (recognizing ecclesiastical

jurisdiction over “defamations”); cf. Fuller’s Case, 12 Co. Rep. at 44

(distinguishing between secular “slander” and ecclesiastical “Heresy,

Schism, and erroneous Opinions, &c.”). Does it extend to McRaney’s

31

No. 19-60293

defamation claim? If so, does ecclesiastical autonomy require dismissal of it?

What do we make of the post-Hosanna-Tabor split of authority on the

jurisdictional consequences vel non of the ecclesiastical-autonomy doctrine?

Our refusal to grant rehearing means these questions must wait for another

day.

32