Tucker v. Faith Bible Chapel Int'l.

Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 15, 2022

_________________________________

Christopher M. Wolpert

Clerk of Court

GREGORY TUCKER,

Plaintiff - Appellee,

v. No. 20-1230

(D.C. No. 1:19-CV-01652-RBJ-STV)

FAITH BIBLE CHAPEL (D. Colo.)

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

RIGHTS CAMPAIGN; IN OUR OWN

VOICE; NATIONAL BLACK WOMEN’S

Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 2

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

THE INSTITUTE FOR

CONSTITUTIONAL ADVOCACY AND

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PROTECTION; BENEDICTINE

COLLEGE, INC.; THOMAS C. BERG;

MARK E. CHOPKO; CHRISTIAN

LEGAL SOCIETY; CARL H. ESBECK;

DOUGLAS LAYCOCK; THE

CARDINAL NEWMAN SOCIETY; THE

LUTHERAN CHURCH-MISSOURI

SYNOD; ROBERT W. TUTTLE,

Amici Curiae.

_________________________________

ORDER

_________________________________

Before HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS,

McHUGH, MORITZ, EID, CARSON, and ROSSMAN, Circuit Judges.∗

_________________________________

This matter is before the court on Defendant-Appellant’s Petition for Rehearing

En Banc (“Petition”). We also have a response from Appellee, and a reply from

Appellant.

The Petition, response, and reply were circulated to all non-recused judges of the

court who are in regular active service, and a poll was called. A majority of the

participating judges voted to deny the Petition. See Fed. R. App. P. 35(a). Consequently,

the Petition is DENIED. Judges Tymkovich, Bacharach, Eid, and Carson voted to grant

en banc rehearing. Judge Ebel has filed a separate concurrence in support of the denial

of en banc rehearing, which is joined by Judge McHugh. Judge Bacharach has filed a

separate dissent, which is joined by Judges Tymkovich and Eid.



The Honorable Jerome A. Holmes is recused in this matter and did not

participate in consideration of the Petition.

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The pending motions for leave to file amicus briefs are GRANTED, as is the

Unopposed Motion to Withdraw Amicus Party Maur Hill-Mount Academy’s Joinder in

Amicus Brief and for Leave to File Substitute Brief (“Motion to Withdraw”). The Clerk’s

Office shall delete the proposed amicus brief submitted with the June 28, 2022

Unopposed Motion for Leave to File Amicus Brief in Support of Appellant Faith Bible

Chapel’s Petition for Rehearing En Banc by Association of Christian Schools

International, Colorado Catholic Conference, Lutheran Church-Missouri Synod, The

Cardinal Newman Society, Benedictine College, and Maur Hill-Mount Academy, and

replace it with the substitute amicus brief submitted with the Motion to Withdraw.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

Entered for the Court

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EBEL, J. Authoring Judge’s Statement Supporting Order Denying En Banc Review

The only question presented in this case is whether, under Cohen’s collateral order

doctrine,1 Defendant Faith Bible Chapel International (“Faith Christian”) is entitled to an

immediate appeal from the district court’s interlocutory ruling denying Faith Christian

summary judgment on its affirmative ministerial exception defense because there are

genuinely disputed issues of material fact as to whether Plaintiff Gregory Tucker

qualifies as a minister for purposes of the exception. Our panel decision denying Faith

Christian an immediate appeal is consistent with well-established lines of Supreme Court

precedent and does not create any circuit split.

First and foremost, our decision is consistent with the Supreme Court’s long line

of cases permitting an interlocutory appeal under Cohen in only limited circumstances, as

a narrow exception to Congress’s requirement in 28 U.S.C § 1291 that appeals be taken

only from final judgments that end litigation. See, e.g., Will v. Hallock, 546 U.S. 345,

349–50 (2006); Johnson v. Jones, 515 U.S. 304, 309 (1995). The Supreme Court has

consistently admonished circuit courts against expanding the availability of interlocutory

Cohen appeals. See Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2018). Our decision

heeds the Court’s admonitions.

The Supreme Court has permitted interlocutory appeals under Cohen in very

limited situations, but only to permit early review of legal, rather than factual, questions,

1

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

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see Johnson, 515 U.S. at 307, 309–18. The Supreme Court has specifically denied an

immediate appeal to challenge an interlocutory ruling denying summary judgment

because there was sufficient evidence for the case to survive summary judgment and

proceed to trial. See id. at 307, 313–18. That is exactly the issue Faith Christians seeks

to appeal immediately in our case.

In Johnson, the Supreme Court denied an immediate appeal from a decision

denying summary judgment because there remained disputed issues of material fact. The

Supreme Court concluded that the costs of delay, expense and disruption of allowing

interlocutory appeals in the midst of ongoing litigation outweighed the benefits of an

interlocutory appeal. See id. Those same costs support our conclusion not to permit an

immediate appeal in our case.

Here, those costs stem in part from the fact that the question of whether an

employee qualifies as a minister involves a case-by-case fact-intensive inquiry, as the

Supreme Court has clearly recognized. See Our Lady of Guadalupe Sch. v.

Morrisey-Berru, 140 S. Ct. 2049, 2063, 2066–67 (2020); Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190–94 (2012). Our panel decision is

consistent with the Supreme Court’s recognition of the fact-intensive nature of the

inquiry into whether a religious employee should be deemed a minister. Contrary to this

Supreme Court authority, the dissent from the denial of en banc rehearing (“dissent”)

incorrectly insists that this case presents only a legal issue.

The dissent also contradicts the Supreme Court by positing that the ministerial

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exception presents a structural limitation on courts’ authority to hear employment cases.

To the contrary, the Supreme Court has explained “that the exception operates as an

affirmative defense to an otherwise cognizable claim, not a jurisdictional bar . . . 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. 195 n.4 (quoting Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010)).

Our panel decision, then, is consistent with well-established lines of Supreme

Court precedent. Our decision also does not create any circuit split. It appears that no

other circuit has addressed the specific question presented here—whether a religious

employer is entitled to an immediate appeal under Cohen from a district court’s

interlocutory ruling denying the employer summary judgment on its affirmative

ministerial exception defense because there are genuinely disputed issues of material fact

as to whether the employee qualifies as a minister. Further, Justice Alito, joined by

Justices Thomas, Kavanaugh and Barrett, lends support to our position by recognizing, as

we did, that a district court’s interlocutory decision declining to apply the ministerial

exception defense can be effectively reviewed following the entry of final judgment

ending the litigation. See Gordon Coll. v. DeWeese-Boyd, 142 S. Ct. 952, 955 (2022)

(Alito, J.; statement respecting denial of certiorari). In light of that, an interlocutory

appeal is not warranted under Cohen.

Furthermore, the Second Circuit, in addressing the separate but related affirmative

church autonomy defense, recently reached the same conclusion as our panel, holding

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that a religious employer was not entitled to an immediate collateral-order appeal from

the denial of a motion to dismiss based on that defense. See Belya v. Kapral, 45 F.4th

621, 625 (2d Cir. 2022).

There is, then, no circuit split on the narrow procedural issue presented in this

case. What little authority there is instead unanimously supports our decision.

Notwithstanding that authority, the dissent, instead, cites three cases which

address a completely different question—whether a religious employer can waive, or

forfeit, its affirmative ministerial exception defense by failing to raise it.2 Each of those

three cases addressed waiver only after determining that the employee qualified as a

minister, which is the threshold question at issue in our case. Whatever general

principles one might glean from these waiver cases, they do not govern here and they do

not address the question presented in our appeal. Furthermore, in Tomic, the Seventh

Circuit treated the ministerial exception as a jurisdictional bar, a position the Supreme

Court later rejected in Hosanna-Tabor. The three cases on which the dissent relies, then,

do not undercut the well-established Supreme Court case law that compels our decision

to deny an interlocutory appeal.

I would end with three practical points. First, there will be no judicial “meddling”

with religion if a fact-finder ultimately determines that Tucker is not a minister, because

2

The dissent cites to Lee v. Sixth Mount Zion Baptist Church, 903 F.3d 113 (3d Cir.

2018); Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829 (6th Cir. 2015);

and Tomic v. Catholic Diocese, 442 F.3d 1036 (7th Cir. 2006), abrogated in part by

Hosanna-Tabor, 565 U.S at 195 n.4.

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religious employers are amenable to employment discrimination claims brought by

non-ministerial employees. That is the factual question still to be determined in our case.

The dissent’s analysis starts with the incorrect (and contested) premise that Tucker should

be deemed a minister.

Second, although we must decide whether to apply Cohen to the category of cases

at issue here, see Johnson, 515 U.S. at 304, 315, this particular case is not one where the

religious employer is currently being harmed by what the dissent refers to as a

“renegade” minister. Tucker, whether or not a minister, has already long since been

fired.

Third, although we have held that a religious employer is not entitled under the

collateral order doctrine to an immediate appeal from the denial of summary judgment on

its affirmative ministerial exception defense when there are genuine disputes of material

fact, we do not foreclose other avenues for immediate appeal in appropriate cases, such as

seeking certification for an interlocutory appeal under 28 U.S.C. § 1292(b), or appealing

the denial of a preliminary injunction under § 1292(a)(1).

Because the panel majority’s opinion was consistent with well-established case

law, does not create a circuit split, and does not unduly encumber religious organizations,

the en banc court appropriately denied en banc consideration.

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Gregory Tucker v. Faith Bible Chapel International, d/b/a Faith Christian

Academy, Inc., Case No. 20-1230

BACHARACH, J., dissenting from the denial of en banc consideration.

Parties ordinarily can’t appeal until the district court enters a final

judgment. See 28 U.S.C. § 1291. A narrow exception exists under the

collateral-order doctrine, which recognizes appellate jurisdiction over

collateral issues even before the entry of a final judgment. Mitchell v.

Forsyth, 472 U.S. 511, 524–25 (1985).

This appeal involves a religious body’s invocation of the collateral-

order doctrine to appeal the denial of summary judgment on the ministerial

exception. The panel majority rejected that effort, treating the ministerial

exception like other affirmative defenses reviewed by appellate courts after

final judgment.

In my view, that treatment reflects a fundamental misconception of

the ministerial exception. Though most defenses protect only against

liability, the ministerial exception protects a religious body from the suit

itself. Without that protection, religious bodies will inevitably incur

protracted litigation over matters of religion. The stakes are exceptionally

important for religious bodies deciding whom to hire or fire.

These stakes arise from the structural role of the ministerial

exception in limiting 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

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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: A

Theory of Judicial Review 94 (1980) (arguing that the Religion Clauses

perform a “structural or separation of powers function”); Peter J. Smith &

Robert W. 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 Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171, 188–89 (2012)); 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”).

Given the structural role of the ministerial exception, the Supreme

Court held that the “ministerial exception bars . . . a suit” over the

religious body’s decision to fire the plaintiff. Hosanna-Tabor, 565 U.S.

at 196 (emphasis added). Despite the Supreme Court’s characterization of

the ministerial exception as a bar to the suit itself, the panel majority

interprets the ministerial exception as a mere defense against liability.

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In interpreting the ministerial exception this way, the panel majority

breaks from the only circuit to apply Hosanna-Tabor’s characterization of

the ministerial exception. 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.’”

Id. (alteration in original) (quoting Hosanna-Tabor, 565 U.S. at 185, 189).

The panel majority skirts this reasoning in Hosanna-Tabor, pointing

to the Supreme Court’s observation elsewhere that the ministerial

exception doesn’t divest the district court of jurisdiction. 1 See Hosanna-

Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 195

1

The Second Circuit recently took the same approach, concluding that

the collateral-order doctrine doesn’t cover the church-autonomy doctrine

because it isn’t jurisdictional. Belya v. Kapral, 45 F.4th 621, 633 (2d Cir.

2022).

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n.4 (2012). But our issue doesn’t involve jurisdiction in district court. In

fact, the panel majority elsewhere observes that characterization of an

issue as jurisdictional doesn’t bear on appealability under the collateral-

order doctrine. See Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1038

(10th Cir. 2022) (observing that orders denying dismissal based on subject-

matter jurisdiction don’t trigger the collateral-order doctrine); see also

Gray v. Baker, 399 F.3d 1241, 1245 (10th Cir. 2005) (“[T]he fact that the

district court’s order arguably concerns its own subject matter jurisdiction

. . . is not sufficient, standing alone, to bring the district court’s order

within the scope of the collateral order doctrine.”).

Conversely, even when affirmative defenses aren’t jurisdictional in

district court, they may trigger the collateral-order doctrine. For example,

absolute immunity and qualified immunity aren’t jurisdictional in district

court. 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 . . . .”). But these

affirmative defenses can still trigger the collateral-order doctrine to create

appellate jurisdiction. See Tucker, 36 F.4th at 1025–26, 1039 n.14

(observing that issues involving absolute immunity and qualified immunity

may trigger the collateral-order doctrine).

Though absolute immunity and qualified immunity may trigger the

collateral-order doctrine, they are waivable. See Yellen v. Cooper, 828 F.2d

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1471, 1476 n.1 (10th Cir. 1987). That isn’t true for the ministerial

exception, for three circuits have recognized the ability of courts to

consider the ministerial exception sua sponte and beyond the power of a

party to waive. 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).

Given its structural role, the ministerial exception protects religious

bodies from suits brought by employees who lead “important religious

ceremonies or rituals.” Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC, 565 U.S. 171, 199 (2012) (Alito, J., concurring).

Determining the importance of a religious ceremony or ritual inevitably

entwines the courts in ecclesiastical doctrine. For example, the ministerial

exception may apply to matters of education because of the central role of

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education in many religions, including Islam, Protestantism, Judaism, and

Seventh-Day Adventism. Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049, 2064–66 (2020).

By deferring the chance to appeal, the panel majority subjects

religious bodies to time-consuming and expensive litigation over the

religious importance of the roles occupied by countless employees.

However the courts weigh these roles in individual cases, the litigation

itself enmeshes the courts in ecclesiastical disputes.

Given the inevitable intrusion into matters of religion, the panel

majority acknowledges the importance of the issue of appealability in

matters involving the ministerial exception. Tucker v. Faith Bible Chapel

Int’l, 36 F.4th 1021, 1028 (10th Cir. 2022) (“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.”). The importance of the issue is

also reflected in the many amicus briefs from states’ attorneys general,

religious organizations, and scholars, decrying the impact of the panel

majority’s treatment of the ministerial exception.

But the panel majority downplays the impact of delayed review,

pointing out that a religious body can appeal once the district court has

entered a final judgment. The impact of this delay on religious bodies is

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not difficult to imagine: The majority’s approach will often require

deferral of an appellate decision while religious bodies endure discovery,

pretrial motion practice, trial practice, and even post-judgment litigation.

See Rayburn v. Gen. Conf. 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”); Demkovich v. St. Andrew the Apostle Par., 3 F.4th 968, 982,

983 (7th Cir. 2021) (en banc) (expressing concern that litigation over the

ministerial exception could “protract[] [the] legal process” and “the very

process of inquiry . . . may ‘impinge on rights guaranteed by the Religion

Clauses’” (quoting Rayburn, 772 F.2d at 1171 (4th Cir. 1985) and NLRB v.

Cath. Bishop of Chi., 440 U.S. 490, 502 (1979))).

Given these burdens from the litigation itself, religious bodies will

undoubtedly hesitate before deciding whether to suspend or fire renegade

ministers. See Rayburn, 772 F.2d at 1171 (“There is the danger that

churches, wary of EEOC or judicial review of their decisions, might make

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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.”); see also Cath.

Univ. of Am., 83 F.3d at 467 (stating that the potential cloud of litigation

could affect a religious body’s criteria in filling future ministerial

vacancies).

The panel majority defends these burdens based on its narrow

conception of the ministerial exception. To the majority, the exception

protects only against liability, not the litigation itself. For this conception

of the ministerial exception, the panel majority relies on a law review

article coauthored by Professor Robert Tuttle. Tucker v. Faith Bible Chapel

Int’l, 36 F.4th 1021, 1037, 1039 n.13 (10th Cir. 2022) (citing Peter J.

Smith & Robert W. Tuttle, Civil Procedure and the Ministerial Exception,

86 Fordham L. Rev. 1847 (2018)). In my view, the panel majority has

misinterpreted this article. There Professor Tuttle argues that “application

of the collateral-order doctrine in this context would better guard against

Establishment Clause violations by trial courts than would the standard

requirement of a final judgment before appeal.” Peter J. Smith & Robert

W. Tuttle, Civil Procedure and the Ministerial Exception, 86 Fordham L.

Rev. 1847, 1881 (2018).

Professor Tuttle has also coauthored one of the numerous amici

briefs urging rehearing en banc, arguing there that

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 “the First Amendment supports early resolution of the

ministerial exception as a threshold legal issue, subject to

interlocutory appeal,” Brief of Religious Liberty Scholars as

Amici Curiae in Support of Appellant at 3 (June 28, 2022),

 “[a]llowing litigation to continue when the lower court should

have recognized the constitutional import of the ministerial

exception will compound the injury. . . the Supreme Court in

Hosanna-Tabor found must not occur in litigation in full,” id.

at 4, and

 “the ministerial exception closely resembles qualified immunity

by protecting from burdens of merits litigation when the trial

court should have granted the immunity or defense early in the

case,” id. at 10.

Other amici share Professor Tuttle’s concerns. Fearing the burdens of

litigation on ecclesiastical decisions, sixteen states have implored us to

convene en banc to revisit the role of the ministerial exception and the

applicability of the collateral-order doctrine. See Brief of States of

Oklahoma et al. as Amici Curiae in Support of Defendant-Appellant’s

Petition for Rehearing En Banc (June 28, 2022).

The panel majority not only requires religious bodies to spend years

and fortunes litigating who are ministers and who aren’t, but also treats

this intrinsically religious question as a typical fact-issue that will “often”

require a trial rather than resolution through dispositive motions. Tucker v.

Faith Bible Chapel Int’l, 36 F.4th 1021, 1031 n.8, 1035 n.8 (10th Cir.

2022). This characterization will undoubtedly prolong judicial meddling in

religious matters.

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Until now, every federal or state appellate court to address the issue

has characterized ministerial status as a question of law. See Starkman v.

Evans, 198 F.3d 173, 176 (5th Cir. 1999) (“The status of employees as

ministers for purposes of McClure [v. Salvation Army, 460 F.2d 553

(5th Cir. 1972)] remains a legal conclusion for this court.”); 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 trial court, to be handled as a threshold matter.”); Weishuhn v. Lansing

Catholic Diocese, 787 N.W.2d 513, 517 (Mich. App. 2010) (characterizing

the applicability of the ministerial exception as a “question of law”);

Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 895

(Tex. App. 2000) (“Whether a person is a ‘minister’ for the purpose of

determining the applicability of the ‘ministerial exception’ to judicial

review of employment decisions is a question of law.”), rev. denied (2001);

see also Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002) (concluding that

“[a] claim of immunity from suit under the First Amendment” entails an

issue of law).

The panel majority bucks that treatment, making us the only

appellate court in the country to classify the ministerial exception as an

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issue of fact. This classification makes summary adjudication less likely,

extending judicial entanglement in ecclesiastical matters before religious

bodies can obtain appellate decisions. See John Deere Ins. Co. v. Shamrock

Indus., Inc., 929 F.2d 413, 417 (8th Cir. 1991) (stating that classification

of an issue as a matter of law makes a case involving that issue

“particularly amenable to summary judgment”). The majority’s deferral of

appellate review thus extends judicial meddling in religious matters—the

very evil that underlays recognition of the ministerial exception.

Consider how the majority treats ministerial status in our case as a

question that will “often” turn on a factual dispute. Tucker v. Faith Bible

Chapel Int’l, 36 F.4th 1021, 1037, 1031 n.4 (10th Cir. 2022). In Mr.

Tucker’s own appellate brief supporting appellate jurisdiction, he argues

that his responsibilities as “Chaplain” 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.

Despite Mr. Tucker’s own characterization of his job as a religious leader,

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Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 21

the majority suggests in dicta that the religious body’s identical

characterization improperly relies on “self-serving documents” as opposed

to Mr. Tucker’s evidence involving “the actual ‘facts and circumstances of

his employment.’” Tucker, 36 F.4th at 1047 n.21.

As Mr. Tucker and Faith Bible agree, these so-called “self-serving

documents” accurately describe the job. This agreed description aside, the

record establishes that Mr. Tucker was hired only because he’d provided

written assurances 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.

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Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 22

The majority’s characterization of the ministerial exception serves

not only to protract litigation for religious bodies wanting to hire, fire, or

change ministers, but also to minimize the possibility of summary

judgment on the issue of ministerial status. These consequences implicate

important structural issues at the heart of the Religion Clauses.

In my view, we should heed the concerns expressed by the many

amici fearful of how our decision limits the ability of religious bodies to

make ministerial decisions based on ecclesiastical doctrine. Given the

extent and legitimacy of those concerns, we should have convened en banc

to address the appealability of the district court’s ruling on the ministerial

exception.

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