declining to extend the collateral order doctrine and noting that Mohawk’s alternatives for review are adequate to vindicate rights
How later courts described this case
- declining to extend the collateral order doctrine and noting that Mohawk’s alternatives for review are adequate to vindicate rights
- distinguishing between “out- ward physical acts” and “an internal church decision that af- fects the faith and mission of the church itself”
- “But secular compo- nents of a dispute involving religious parties are not insulated from judicial review; a court may use the ‘neutral principles of law’ approach.”
- noting that the court may adjudicate property disputes that do not require entanglement in religious issues
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2683
JANAY E. GARRICK,
ě-Appellee,
v.
MOODY BIBLE INSTITUTE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-573 — John F. Kness, Judge.
____________________
ARGUED DECEMBER 5, 2023 — DECIDED MARCH 18, 2024
____________________
Before HAMILTON, BRENNAN, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. For three years, Janay Garrick taught
communications courses at Moody Bible Institute. When
¢ȱ ęȱ ǰȱ ȱ ǰ alleging sex discrimination and
other Title VII violations. Moody moved to dismiss Garrick’s
Second Amended Complaint, claiming that her suit was
barred by Title VII’s religious exemptions and the First
Amendment doctrine of church autonomy. When the district
court denied the motion in part, Moody appealed that
2 No. 21-2683
ę order. Because ȱęȱȱthe district court’s order
is not subject to interlocutory review under the collateral or-
der doctrine, we dismiss the appeal for lack of jurisdiction.
I. Background
A. Factual Background
Appellant Moody Bible Institute (“Moody”) seeks review
of the district court’s denial of a motion to dismiss, so we
credit facts pled in the Second Amended Complaint and con-
strue all disputes in favor of Garrick. Demkovich v. St. Andrew
the Apostle Parish, Calumet City, 3 F.4th 968, 973 n.2 (7th Cir.
2021) (en banc).
1. The Parties
Located in Chicago, Illinois, Moody is a religious institu-
tion of higher education and ȱȱęȱǯȱIt
ěȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
both secular and religious subjects. Among other doctrinal
commitments, Moody espouses complementarianism, which
ȱęȱȱȱȱȱȱ¢ȱȱȱȱȱ
men only, though women may serve in all other ministry
roles. Moody requires all faculty to subscribe to its core be-
liefs, including complementarianism, and to sign annual reaf-
ęȱȱthose beliefs.
In 2014, Moody hired Janay Garrick as a non-tenure in-
structor in the communications program on an annual con-
tract. In contrast to Moody’s complementarian teachings,
Garrick ęȱȱȱȱȱȱȱȬ
lieves that ęȱȱȱȱȱȱȱȬ
tain roles on the basis of gender. In her interview, Garrick told
Moody that she held to egalitarian beliefs and rejected com-
plementarianism. Moody nevertheless hired her and twice
No. 21-2683 3
renewed her teaching contract, although it did ask her to sign
its doctrinal statement and ĜȱȱȬ
ism. Moody also required Garrick to remove from her resume
the fact that she was an ordained minister.
2. Garrick’s Employment
Garrick claims that during her employment, other faculty
members subjected her to hostile treatment due to her gender,
treatment she raised with administrators who ignored or dis-
missed those complaints. She complained, for example, that
male colleagues ignored, avoided, and ridiculed her; in re-
sponse, the vice president of human resources suggested Gar-
rick ȱȱȱȱȱȱȱ¢ȱĜȱȱȱ¢ȱ
unpleasant interactions.
Garrick alleges that Moody never rebuked or sidelined
men who publicly disagreed with its culture of sexism as it
did her. One incident arose when Garrick co-designed and
presented a plan for a more inclusive environment in re-
sponse to the anti-LGBTQ+ atmosphere at Moody. After that
presentation, a supervisor criticized Garrick ȱ ȃĚȬ
tory rhetoric” and told her she must “learn how to speak
around here.” In contrast, the male co-presenter was never
reprimanded or punished.
Garrick also alleges disparate treatment in her teaching
obligations and opportunities. She applied for a reduced
teaching load while completing a terminal degree in her
ę—an accommodation male faculty had received—but
Moody denied Garrick’s application. She was also asked to
ȱ ęȱ ȱ ȱ ǰȱ ȱ ȱ Moody
did not similarly require of new non-tenure male hires. In
2016, when she applied for a tenure-track assistant-professor
4 No. 21-2683
position ȱ ȱȱ ȱ¢ȱęǰȱȱȬ
ȱȱȱȱȱ¢ȱ¢ȱ£ȱȬ
nied her application within an hour of its submission, explain-
ing that Garrick needed to ȃȱȱęȱ ȱȱȬ
sion.” Yet Garrick points out that her performance reviews
consistently demonstrated that she was an excellent, engag-
ing, enthusiastic instructor.
In 2017, Moody’s reactions to Garrick’s teaching perfor-
mance began to change. She was chastised for missing an al-
ready-cancelled meeting in March. Also in March, she re-
ȱ ȱ ęȱ ȱ ȱ , three months
after a performance review crediting her with “excellent ser-
vice.” When Garrick inquired into the basis for the negative
review, Terry Strandt, the Chair of the Music and Media Arts
Division, explained that it was a product of administrators’
evaluations, including Davidhizar’s, and “peer reviews.”
Garrick alleges that Moody never subjected male colleagues
to peer reviews. When she asked to see those reviews, Da-
vidhizar told Garrick this negative review was based on the
assessment of Strandt himself. Eventually, after Garrick re-
peatedly asked about the reasons for her negative perfor-
mance review, Moody raised her score—instead of (Garrick
claims) providing her with a “straight answer” about the orig-
inal review.
3. Garrick’s Termination
In April 2017, Davidhizar and the vice president of human
resources raised the problematic nature of Garrick’s egalitar-
ian views with her ȱȱęȱǯȱLater that month, Moody
informed Garrick that it would not renew her contract. Her
termination Ĵȱ ¡ȱ ȱ Ȃȱ -alignment
ȱ¢Ȃȱȱȱȱȱȱȱęȱȱ
No. 21-2683 5
the school. After completing her spring semester teaching as-
signments, she would receive pay for the rest of the year as a
nonteaching faculty member. When Garrick discussed her
termination with students and student-reporters, however,
Moody immediately ę Garrick and expelled her from cam-
ǯȱȱȱȱ ȱęȱ ȱǯȱ
B. Procedural Background
1. EEOC Charge
ȱęȱȱȱȱȱ ¢ȱŘŖŗŞ, alleging
various Title VII violations including retaliation and discrim-
ination on the basis of sex and religion. The complaint stated
that she ȃ ȱ Ĝ¢ȱ ȱ ȱ ȱ ǽǾȱ ǰȱ
ǽǾȱ ȱ ȱ ¢ǰȱ ȱ ȱ ȱ ȱ ȱ ǽǾȱ
ȱȱǽǾȱ ȱȱȱǽǾȱȱ
on behalf of female students who were discriminated
against.” The EEOC issued GarrȱȱȱȱȱĴȱȱȬ
tember 24, 2018.
2. First Amended Complaint
ȱȱǰȱ ȱęȱ First Amended Com-
plaint alleging discrimination on the basis of gender and reli-
gion. 1 The complaint claimed that Moody’s stated reason for
ęȱ—religious disagreement—“was pretext for its true
motives—discrimination and retaliation.” Ultimately, the
ȱ ȱ Ȃȱ ęȱ ȱ ȱ ȱ Ȭ
trine, including Garrick’s advocacy on campus for women ap-
¢ȱȱȱȱ¢ȱ.
1 Although Garrick initially retained counsel, ȱĴ¢ȱ ȱ
before ȱęȱ First Amended Complaint.
6 No. 21-2683
Moody moved to dismiss Garrick’s complaint, arguing
that it was protected by the ministerial exception, the church
autonomy doctrine, and Title VII’s religious exemptions.
The district court 2 granted Moody’s motion to dismiss,
ęȱ Ȃȱ claims of discrimination due to disagree-
ments over complementarianism barred by Title VII’s reli-
gious exemptions and the First Amendment doctrine of
church autonomy. Garrick v. Moody Bible Inst., 412 F. Supp. 3d
859, 869–72 (N.D. Ill. 2019) (Garrick I). 3 It noted, however, that
it would permit Garrick to amend those claims because “there
are strains of Garrick’s Title VII claims that may not be tied to
Moody’s religious beliefs,” including inconsistent treatment
of male and female faculty members. Id. at 872.
3. Second Amended Complaint
Still representing herself, Garrick took the district court’s
invitation and ęȱher Second Amended Complaint alleging
a hostile work environment, retaliation, and discrimination
and disparate treatment based on sex. Moody again moved to
dismiss Garrick’s complaint, this time relying on only two
2 This case was originally assigned to Judge John Z. Lee, who ruled on
both motions to dismiss. When Judge Lee was appointed to the Seventh
Circuit, the case was reassigned to Judge John F. Kness.
3 Although Title VII and the church autonomy doctrine protected
Moody from Garrick’s claims of discrimination, the ministerial exception
did not. The district court found that further factual development would
be necessary to determine whether the ministerial exception applied. Gar-
rick I, 412 F. Supp. 3d at 870–71. The district court also dismissed Title IX
and breach-of-contract claims, which Garrick did not replead or raise on
appeal. Id. at 872–73.
No. 21-2683 7
defenses: the church autonomy doctrine and Title VII’s reli-
gious exemptions. 4
The district court dismissed Garrick’s hostile work envi-
ȱȱ ȱǰȱęȱȱ ȱȱȱ
state a claim. Garrick v. Moody Bible Inst., 494 F. Supp. 3d 570,
579 (N.D. Ill. 2020) (Garrick II). Despite that, it denied Moody’s
motion to dismiss the discrimination, disparate treatment,
and retaliation claims, rejecting Moody’s argument that it was
immune from such employment suits under Title VII and the
First Amendment. Id. at 576–79.
The district court reasoned that while Title VII’s religious
exemptions and the church autonomy doctrine apply to reli-
gious discrimination, those defenses do not bar claims of
other forms of discrimination, including claims that religious
ęȱfor employment decisions are mere pretext. Id.
at 576–79. The court explained that “Garrick’s complaint does
not imperil religious autonomy” because she “may identify
disparaging comments Moody’s supervisors made about
women or spotlight male instructors who disagreed with
Moody’s complementarian doctrine yet retained their posi-
tions.” Id. at 577ǯȱȱȱȱȃ ȱǽ¢Ȃȱ
ǾȱǽǾȱȱȱȱȱęȱ ǰȄȱthe
court “need only determine (and the parties will need only
investigate during discovery) whether Moody terminated her
because of its religious beliefs or whether its invocation of its
religious beliefs was, in fact, a cover to discriminate against
Garrick because of her gender.” Id.
4 Moody did not reassert the ministerial-exception defense, nor has it
raised the defense on appeal.
8 No. 21-2683
Further emphasizing the distance between Garrick’s
claims and questions of doctrine, the court also pointed out
that Moody’s own representation of complementarianism is
ȱȱȃ¡ǽǾȱ ȱȱȱas ministersǰȄȱȱȃǽǾȱ
does not follow that Moody’s faith requires unequal treat-
ment of women who work in secular roles.” Id. at 578. The dis-
trict court found that this distinction protected Garrick’s
claims from dismissal because, at least at this point in the liti-
gation, the court need not wade into religious doctrine. Id.
4. Motion to Reconsider and Interlocutory Appeal
¢ȱ ȱ ȱ ȱ ȱ ȱ ęȱ
for interlocutory appeal under 28 U.S.C. § 1292(b), both of
which the district court denied. As to reconsideration, be-
cause Garrick’s Second Amended Complaint argued that
¢Ȃȱȱęȱ ȱ¡ǰȱȱȱȬ
tinguished between claims of religious discrimination (which
it would dismiss as barred by Title VII’s religious exemptions
and First Amendment principles of church autonomy) and
claȱȱ¡ȱȱęs papered over ac-
tual reasons including gender discrimination.
As for the interlocutory appeal, the district court denied
Moody’s request because it failed to present “substantial
ȱȱěȱȱȄ as required by § 1292(b) and
could not identify a single case holding that Title VII or the
religious-autonomy doctrine confers total immunity from
suit.
Moody now asks this court to consider its appeal under
the collateral order doctrine on the grounds that the doctrine
No. 21-2683 9
of church autonomy guarantees immunity from judicial en-
ȱȱȱĴǯ 5
II. Analysis
We must decide whether we have jurisdiction to hear
Moody’s interlocutory appeal. 28 U.S.C. § 1291 limits our ju-
ȱȱȱȱȃęȱȱȱȱȱȱȱȱ
United States.” An interlocutory order, which does not con-
clude all issues in a case, is not usually immediately appeala-
ble. Dupree v. Younger, 598 U.S. 729, 734 (2023).
Because the denial of a motion to dismiss is an interlocu-
tory order and ȱȱęȱȱȱȱȱȱ
§ 1291, see Harer v. Casey, 962 F.3d 299, 305 (7th Cir. 2020), we
ęȱȱȱȱȱȱMoody’s appeal. Our ju-
risdiction here depends on the interplay between the collat-
eral order doctrine and First Amendment principles of church
autonomy.
The collateral ȱȱȱȱ¡ȱȱȱęȱ
ȱǯȱȱȱȃȱę¢—and thus im-
mediate appealability—on a small category of interlocutory
orders ‘too important to be denied review and too independ-
ent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.’” Herx v. Dio-
cese of Fort Wayne–South Bend, Inc., 772 F.3d 1085, 1088 (7th Cir.
2014) (quoting ȱ ǯȱ ęȱ ǯȱ ȱ ǯ, 337 U.S.
541, 546 (1949)).
5 Although Moody asserts a defense based on Title VII’s religious ex-
emptions, it does not argue that those statutory exemptions guarantee im-
mediate interlocutory review under the collateral order doctrine.
10 No. 21-2683
To qualify for interlocutory appeal as a collateral order, an
order must satisfy three conditions, or so-called Cohen factors:
(1) the order must be conclusive; (2) it must “resolve im-
portant questions separate from the merits”; and (3) it must
ȱ ȃě¢ȱ ȱ ȱ ȱ ȱ ȱ ęȱ Ȭ
ment in the underlying action.” Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 42 (1995) (citing Cohen, 337 U.S. at 546);
see also Herx, 772 F.3d at 1088–89. These requirements are
“stringent.” Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 868 (1994).
The Supreme Court has repeatedly emphasized that the
collateral order doctrine is limited and narrow. Mohawk In-
dus., Inc. v. Carpenter, 558 U.S. 100, 106–07 (2009); Will v. Hal-
lock, 546 U.S. 345, 350 (2006); Digit. Equip., 511 U.S. at 868. Its
instructions are emphaticDZȱ ȃǽǾȱ ȱ ȱ ȱ ȱ ȱ
said; although the Court has been asked many times to ex-
pand the ‘small class’ of collaterally appealable orders, we
have instead kept it narrow and selective in its membership.”
Will, 546 U.S. at 350.
The Court further has explained that its warnings against
expansion of the collateral order doctrine derive from Con-
gress’s clear intent that any expansion to the list of orders con-
ȱȃęȄȱȱȱȱȱ ȱȱȱ
through the rule-making process, not by court decision. Swint,
514 U.S. at 48. Congress has authorized the Court to “pre-
ȱǰȱȱȱ ȱǽthe Rules Enabling ActǾǰȱȱ
provide for an appeal of an interlocutory decision to the
courts of appeals that is not otherwise provided for under
ǽȗ ŗŘşŘǾǯȄȱŘŞȱǯǯǯȱ§ 1292(e); see also Mohawk, 558 U.S. at 113–
14. “Congress’s designation of the rulemaking process as the
¢ȱȱęȱȱęȱ ȱȱȱȱȱȱȁęȂȱ
No. 21-2683 11
and when an interlocutory order is appealable warrants the
Judiciary’s full respect.” Swint, 514 U.S. at 48; see also Microsoft
Corp. v. Baker, 582 U.S. 23, 39 (2017) (noting that expansions to
the collateral order doctrine “are to come from rulemaking,
however, not judicial decisions in particular controversies or
inventive litigation ploys”). We lack the authority to expand
our power ȱȱȱęȱȱȱ¢ȱȬ
gress. Mohawk, 558 U.S. at 113–14; see also id. at 118–19
(Thomas, J., concurring in part) (“Congress, which holds the
constitutional reins in this area, has determined that such
ȱȱǽȱȱȱ ȱȱȱȬ
¢ȱǾ ȱĴȱȱȱȱǽȱȬ
Ǿȱdzǯȱȱȱȱȱȱȱȱǰȱȱ
deed as well as in word.”).
To determine whether an appeal is part of that “small
class” and subject to review under the collateral order doc-
trine, we do not engage in a case-by-case inquiry. See Herx,
772 F.3d at 1089. Instead, our inquiry into the conditions for
collateral-order review must assess “categories of orders ra-
ther than individual orders.” Johnson v. Jones, 515 U.S. 304, 315
(1995); see also Mohawk, 558 U.S. at 107 (“In making this deter-
mination, we do not engage in an individualized jurisdic-
tional inquiry. Rather, our focus is on the entire category to
which a claim belongs.” (internal quotations and citations
ĴǼǼǯȱ
Accordingly, certain categories of claims or orders are sub-
ject to interlocutory review under the collateral order doc-
trine, while others are not. Those falling within the doctrine
include orders denying a criminal defendant’s claim of dou-
ble jeopardy, Abney v. United States, 431 U.S. 651, 657 (1977),
ȱ¢ȱȱȱĜȂȱȱȱȱ¢ǰȱ
12 No. 21-2683
¡ȱǯȱĵ, 457 U.S. 731, 742 (1982), a state’s claim of
Eleventh Amendment immunity, P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144–45 (1993), and a for-
eign government’s claim of sovereign immunity, Abelesz v.
Magyar Nemzeti Bank, 692 F.3d 661, 667 (7th Cir. 2012). Denials
ȱ ęȱ ¢ǰȱ ǰȱ ȱ ȱ ȱ interlocutory re-
view, so long as the denial is based purely on questions of law
and not disputes of fact. Johnson, 515 U.S. at 317.
A. The Collateral Order Doctrine and Church Autonomy
The doctrine of church autonomy derives from the Reli-
gion Clauses of the First Amendment. Korte v. Sebelius, 735
F.3d 654, 677 (7th Cir. 2013) (citing Hosanna–Tabor Evangelical
ȱȱ& Sch. v. EEOC, 565 U.S. 171, 181 (2012)). The
doctrine protects against government interference in “faith
ȱȄȱȱȃĴȱȱȱǯȄȱȱ¢ȱ
of Guadalupe Sch. v. Morrissey–Berru, 140 S. Ct. 2049, 2060
(2020) (cleaned up).
Courts must leave the resolution of “quintessentially reli-
gious controversies” to religious organizations, and when the
organization resolves a religious controversy or question,
“the Constitution requires that civil courts accept their deci-
sions as binding upon them.” Hosanna–Tabor, 565 U.S. at 187
(quoting Serbian E. Orthodox Diocese for the U.S. & Can. v. Mil-
ivojevich, 426 U.S. 696, 720, 725 (1976)). Secular courts may not
interpret religious law or wade into religious disputes be-
cause “the First and Fourteenth Amendments mandate that
civil courts shall not disturb the decisions of the highest eccle-
siastical tribunal within a church of hierarchical polity.” Mili-
vojevich, 426 U.S. at 709. Under the church autonomy doctrine,
ȱȱȱȃǽǾȱǽȱȂǾȱȬ
omy to shape their own missions, conduct their own
No. 21-2683 13
ministries, and generally govern themselves in accordance
with their own doctrines as religious institutions.” Korte, 735
F.3d at 677.
The church autonomy doctrine does not, however, bar
courts from adjudicating all disputes involving a religious in-
stitution. See Sterlinski v. Cath. Bishop of Chicago, 934 F.3d 568,
571 (7th Cir. 2019) (explaining that Title VII and the First
Amendment do not protect religious organizations from
every suit); McCarthy v. Fuller, 714 F.3d 971, 979 (7th Cir. 2013)
(noting that the court may adjudicate property disputes that
do not require entanglement in religious issues); see also Belya
v. Kapral, 45 F.4th 621, 630 (2d Cir. 2022) (“But secular compo-
nents of a dispute involving religious parties are not insulated
from judicial review; a court may use the ‘neutral principles
of law’ approach.”); Curay-Cramer v. Ursuline Acad. of Wil-
mington, Del., Inc.ǰȱŚśŖȱǯřȱŗřŖǰȱŗřşȱǻřȱǯȱŘŖŖŜǼȱǻȃǽǾȱȱ
that many claims of discrimination against a religious em-
ployer under Title VII will not raise serious constitutional
questions.”). Courts may exercise authority when the resolu-
tion does not require inquiry into doctrinal disputes. See Ho-
sanna–Tabor, 565 U.S. at 190 (distinguishing between “out-
ward physical acts” and “an internal church decision that af-
fects the faith and mission of the church itself”).
The dissent seeks to expand the collateral order doctrine
by creating a new category never recognized by the Supreme
Court or any other circuit. See Belya, 45 F.4th at 630. Indeed,
the Seventh Circuit previously considered a similar question
in Herx v. Diocese of Fort Wayne–South Bend, Inc. Herx held that
district court orders denying church-autonomy and Title VII’s
religious-exemption defenses cannot be immediately ap-
pealed when the merits do not appear to require judicial
14 No. 21-2683
ȱȱȱĴǯȱŝŝŘȱǯřȱȱ1090–91. That
decision controls here.
In Herx, the Diocese ę a junior high language arts
teacher after she underwent in vitro fertilization, which the
Diocese asserted was incompatible with its moral doctrine. Id.
at 1086–87. Herx sued the Diocese, claiming that her termina-
tion violated Title VII by discriminating against her on the ba-
sis of her sex. Id. at 1087. The district court denied the Dio-
cese’s motion for summary judgment asserting Title VII’s re-
ligious exemptions and the church autonomy doctrine’s pro-
hibition against judicial entanȱȱĴȱȱȱ
doctrine. Id.
On the Diocese’s interlocutory appeal, we considered both
Title VII’s exemptions, which we described as “legislative ap-
plications of the church-autonomy defense,” and First
Amendment religious-autonomy principles to determine
whether we had jurisdiction under the collateral-review doc-
trine. Id. at 1090–91 (quoting Korte, 735 F.3d at 678). We re-
jected the Diocese’s argument and dismissed the appeal,
holding that the district court’s denial of summary judgment
did not satisfy the Cohen factors. Id. at 1090.
The similarities between Herx and the case before us are
inescapable. Both Garrick and Herx claimed their religious
employers discriminated against them on the basis of sex by
ęȱǰȱȱȱ¢ȱȱ ǯȱȱȱȱȱ
¢ȱȱȱȱȱěȱ ȱęȱȱȱȬ
gious disagreement, claiming Title VII’s religious exemptions
and the First Amendment as defenses against suit. Both dis-
trict courts found that a jury could conclude that, all other
things being equal, male employees would be or had been
ȱě¢ǯȱSee id. at 1088 (quoting the district court’s
No. 21-2683 15
conclusion that a jury “could infer that Mrs. Herx’s contract
could have been renewed had she been male and everything
else remained the same”); Garrick, 494 F. Supp. 3d at 578 (ex-
plaining that “a reasonable inference can be made from the
ȱȱ¢ȱęȱ ȱȱȱȱȱ
teachers to higher standards than their male counterparts, not
because it disapproved of her egalitarian religious views”). 6
As in Herx, because the question of disparate treatment be-
tween men and women can be evaluated apart from doctrinal
ěǰȱ¢ȱȱȱ will not necessarily re-
ȱ ȱ ȱ ȱ ȱ ȱ Ĵ. See
Herx, 772 F.3d at 1091–92. While certain distinctions between
ȱ ȱ ȱ ȱ ȱ ě-limits because they implicate
complementarianism—for example, opportunities to speak at
chapel and the removal of Garrick’s ministerial title from her
resume—many distinctions will not. Discovery into certain
areas including whether male employees were subject to peer
reviews, rebuked for speaking out against perceived sexism
on campus, denied reduced teaching loads while completing
terminal degrees, or asked to create new courses, will not sub-
ject Moody’s doctrine to judicial second-guessing.
The dissent misunderstands the holding in Herx when it
interprets that case to hold “only” that the appellant failed to
6 Moody argues that the First and Second Amended Complaints are
essentially the same and therefore the district court erred when it did not
dismiss the Second Amended Complaint ȱȱȱȱęǯȱȱȱȱ
court rightly noted that while the First Amended Complaint still tied Gar-
rick’s termination to disagreements over whether women should be ad-
Ĵȱȱȱ¢ǰȱȱSecond Amended Complaint alleged that gender
discrimination was the cause of her termination, apart from any doctrinal
disagreements.
16 No. 21-2683
carry its burden in that particular instance. On the contrary,
by holding “only that the Diocese has not made a persuasive
case for expanding the scope of the collateral-order doctrine,”
we restricted the holding to the jurisdictional question, declin-
ing to weigh in on the merits of the Diocese’s arguments. See
id. at 1091. Context makes that clear. That holding immedi-
¢ȱ ȱȱȱȱȃǽ Ǿȱ¡ȱȱȱȱ
the merits of the district court’s summary-judgment deci-
sion.” Id. 7 Herx did not leave open the possibility that we
ȱȱȱ¢ȱȱȱȱȱȱȱęȱ
order at issue if a party simply made more persuasive argu-
ments.
Moody argues that McCarthy v. Fuller instead of Herx di-
rects the outcome here. In McCarthy, a United States repre-
sentative of the Holy See, the central governing body of the
Roman Catholic Church, had issued a declaration that Fuller
was not a nun or religious sister. 714 F.3d at 973–74; see also
McCarthy v. Fuller, No. 08-cv-994, 2012 WL 1898858, at *2 (S.D.
Ind. May 23, 2012). Despite this statement, the district court
planned to instruct the jury to determine whether Fuller was
a nun in good standing with the Catholic Church to resolve
her claim of defamation against McCarthy, who called her a
“fake nun.” McCarthy, 714 F.3d at 974. McCarthy held that the
7 Nor does the fact that the Diocese addressed appellate jurisdiction
in only “a few sentences” limit Herx’s authority. See Herx, 772 F.3d at 1090.
We considered the issue fully in Herx, explaining the conditions that must
be met for interlocutory review and noting the Supreme Court’s careful
limitation of the claims that are subject to immediate appeal under the col-
lateral order doctrine. Federal courts have an independent obligation to
consider our jurisdictionǰȱȱ ȱȱęȱȱȱęȱȱȬ
ligation in Herx.
No. 21-2683 17
ȱȃǽǾȱȱ¢ȱȱ ȱȱȱȄȱwas
immediately appealable on the facts in that case. Id. at 976.
The circumstances were remarkably extreme—the judge had
determined that the jury’s judgment could preempt that of the
Holy See on a decidedly doctrinal question, in clear violation
of church autonomy.
Whether the category of order subject to immediate inter-
locutory review created in McCarthy is in tension with the Su-
preme Court’s instructions against expanding that “small
class” is not a question we must answer at this time. For now,
it is enough to say that McCarthy did not create a new category
subjecting denials of a church autonomy defense to immedi-
ate appeal. Herx makes that clear. In fact, McCarthy explicitly
noted that disputes not requiring a district court to entangle
itself in doctrinal questions are “premature,” implicitly limit-
ing its holding to its quite extreme facts. 714 F.3d at 979. In
contrast, we are not faced with such a clear usurpation—or
any usurpation—of church autonomy. Moody’s appeal falls
outside McCarthy’s scope and squarely within that of Herx. At
this point in the litigation of Garrick’s claims, it is not conclu-
sively apparent that adjudication of her claims of pretextual
ęȱs the district court to entangle itself in questions
of religious doctrine.
This is not to say that denials of a church autonomy de-
fense, right or wrong, are never reviewable before ȱęȱȬ
ment. The Supreme Court addressed this concern in the con-
¡ȱȱȱȱȱĴ¢–client privilege, stating that
even without interlocutory review under the collateral order
doctrine, a writ of mandamus, along with other procedural
tools, “will continue to provide adequate protection to liti-
gants.” Mohawk, 558 U.S. at 114; see also JPMorgan Chase Bank,
18 No. 21-2683
ǯǯȱǯȱȱȱǭȱȱǯǰȱǯ, 707 F.3d 853, 869 (7th Cir.
2013) (declining to extend the collateral order doctrine and
noting that Mohawk’s alternatives for review are adequate to
vindicate rights). When its exacting standards are met, the ex-
traordinary remedy of a writ of ȱěȱȱ
for religious-institution litigants challenging district court or-
ders that reject First Amendment defenses. Indeed, the ex-
treme facts of McCarthy might be best understood as satisfy-
ing those exacting requirements for a writ of mandamus.
B. Cohen Factors
Even if Herx did not govern the outcome in this case,
Moody’s appeal does not satisfy the stringent Cohen factors to
gain interlocutory review. This category of order—a denial of
a church-autonomy defense raised against claims capable of
resolution without implicating doctrine—is not conclusive, is
ȱȱȱȱǰȱȱȱȱě¢ȱ Ȭ
ȱȱȱęȱǯ See Mohawk, 558 U.S. at 106.
1. Conclusiveness
The district court has not issued a conclusive decision on
Moody’s church-autonomy defense. Like in HerxǰȱȃǽǾȱȬ
ȱȱȱȱȱȱȱȱĴȱȱ
the jury for decision. To the contrary, the judge promised to
instruct the jury not to weigh or evaluate the Church’s doc-
trine.” 772 F.3d at 1091. Moody argues that the district court
conclusively denied its religious autonomy guaranteed by the
First Amendment by second-guessing its determination that
Garrick was not in doctrinal good standing. But the district
court did no such thing. As in Herx, the district court here em-
phasized that any dispute over doctrinal prohibitions against
women serving as clergy would not be up for debate. Garrick
No. 21-2683 19
II, 494 F. Supp. 3d at 578. The court also made clear that while
an inference that something other than Garrick’s beliefs led to
ȱęȱ¢ȱȱȱȱ , Garrick will have to do
ȱȃȱȱȱȱȱęȱȱȬ
ȱ¢ȂȱȱȱȱęȱȄȱ later stages of
litigation, including summary judgment. Id. at 577.
2. Separateness from the Merits
Nor is Moody’s church-autonomy defense separate from
the merits of Garrick’s claim as pled in the Second Amended
Complaint. This requirement “means that review now is less
likely to force the appellate court to consider approximately
ȱȱǻȱȱ¢ȱǼȱĴȱȱȱǯȄȱJohnson,
515 U.S. at 311. The asserted interest on appeal must be “‘con-
¢ȱ Ȃdz rather than literally ‘completely sepa-
ȂȄȱȱȱȱȱȱěȂȱǯȱ McCarthy, 714
F.3d at 975 (quoting Mitchell v. Forsyth, 472 U.S. 511, 527
(1985)). In fact, “if ‘any factual overlap between a collateral
ȱȱȱȱȱȱěȂȱȱȱȱȱȱȱ
ȱȱ¢ǰȱȱȱȱĴȱȱȱȬ
pealed, for all of them require an inquiry into whether the
ěȂȱdzȱȱons state a claim that falls outside
the scope of the defendant’s immunity.’” Id. (quoting Mitchell,
472 U.S. at 529 n.10).
The viability of Moody’s defense depends upon the verac-
ity of Garrick’s factual allegations related to pretext, so the de-
fense is not separate from the merits of her claim. An inquiry
into the merits of Garrick’s claim will determine whether
Moody is able to assert the church-autonomy defense. See
Montano v. City of Chicago, 375 F.3d 593, 598–99 (7th Cir. 2004)
(noting that the second requirement for interlocutory review
asks whether the order at issue “resolves issues that are
20 No. 21-2683
capable of review without extensive examination of the un-
derlying merits of the case”). For example, if an examination
of the facts reveals that, in fact, both men and women are de-
nied reduced teaching loads, asked to design courses from
scratch as non-tenure instructors, subjected to peer reviews,
or disciplined for speaking out against perceived sexism on
campus, Garrick’s claim of pretext may fail. For now, key facts
are in dispute. Because the availability of Moody’s defense de-
pends upon undeveloped facts related to the merits of Gar-
rick’s claims, its defense is not conceptually separate from the
merits.
3. ěȱ ¢
¢ǰȱȱȱȂȱȱȱȱě¢ȱȬ
ȱȱȱȱȱęȱǯ Here, the “crucial ques-
ȱdzȱȱȱ ȱǽȱǾȱȱȱȱȱ
ȱ Dzȱ ȱ ȱ ȱ ȱ ȱ ȱ ęȱ Ȭ
ment so imperils the interest as to justify the cost of allowing
immediate appeal of the entire class of relevant orders.” Herx,
772 F.3d at 1090 (quoting Mohawk, 558 U.S. at 108). An imper-
¢ȱȱȱȱȱ ȱȱĜǯȱId. (citing
Mohawk, 558 U.S. at 107; Digit. Equip., 511 U.S. at 872). Instead,
“the decisive consideration is whether delaying review until
ȱ¢ȱȱȱęȱȱ ȱȱȱȱȬ
lic interest or some particular value of a high order.” Id.
(cleaned up). The higher interest must implicate immunity
from trial, “not just an interest in avoiding an adverse judg-
ment.” Id. (citing Will, 546 U.S. at 352). What higher interests
ought to be protected? Citing the Supreme Court, we have
listed “honoring the separation of powers, preserving the ef-
ę¢ȱȱȱȱȱȱȱĜǰȱȬ
ing a State’s dignitary interest, and mitigating the
No. 21-2683 21
government’s advantage over the individual.” Id. (quoting
Will, 546 U.S. at 352–53).
Tȱ ȱ ȱ ¢ȱ ȱ ǯȱ ȱ ȱ ĜȬ
cials or unit of government is involved, “so delaying appellate
ȱ ȱ ęȱ ȱ ȱ ȱ ‘imperil a substantial
public interest’ grounded in the separation of powers, the dig-
¢ȱȱȱȱǰȱȱĜȱȱȱȱȬ
ment, or any other public interest.” Herx, 772 F.3d at 1090. 8
Nor does the doctrine of church autonomy confer immun-
ity from trial in every employment discrimination suit. The
dissent relies on Korte v. Sebelius, which described Title VII’s
ȱ¡ȱȱȃǽǾȱȱȱȱ¢ǰȱ
or very nearly so.” Korte, 735 F.3d at 678. This circuit already
rejected that same argument in Herx. 772 F.3d at 1090. A right
to complete immunity from trial, and therefore a right to im-
mediate review by a court of appeals, we explained, is “much
more than this passage in Korte can bear.” Id. at 1091. After all,
ȃǽ Ǿȱ ȱ ‘immunity,’ sometimes conjoined with ‘abso-
lute,’ are often used interchangeably with ‘ǰȂȱdzȱ Ȭ
out meaning to rȱȱȱǽǾȱ¢ǯȄȱ
Id. (quoting Segni v. Com. ě. of Spain, 816 F.2d 344, 346 (7th
Cir. 1987)).
No court has ever held that the First Amendment doctrine
of church autonomy establishes a constitutional right to im-
munity from trial in cases where non-ministerial employees
allege non-religious discrimination. In fact, the Second Circuit
8 ȱȱĴȱȱȱȱ¢ȱ¢ȱȱȱȱ
collateral order doctrine is not limited to disputes involving a government
entity. But this is only one factor the Supreme Court has highlighted, as
the rest of this section explains.
22 No. 21-2683
rejected a similar petition for interlocutory review under the
collateral order doctrine, holding that the church autonomy
doctrine does not automatically bar litigation nor does it per-
mit interlocutory appeal where the Cohen factors are not sat-
ęǯȱBelya, 45 F.4th at 625, reh’g en banc denied, 59 F.4th 570,
cert. denied sub nom. Synod of Bishops of the Russian Orthodox
Church Outside of Russ. v. Belya, 143 S. Ct. 2609 (2023). Com-
menting on church autonomy and the collateral order doc-
trineǰȱȱȱȱȱȱȃǽ Ǿȱȱȱȱȱ
resolved by applying well-established law to secular compo-
nents of a dispute, such resolution by a secular court presents
no infringement upon a religious association’s independence.
Thus, simply having a religious association on one side of the
‘v’ does not automatically mean a district court must dismiss
the case or limit discovery.” Id. at 630. Cf. Tucker v. Faith Bible
Chapel Int’l, 36 F.4th 1021, 1032, 1036 (10th Cir. 2022), reh’g en
banc denied, 53 F.4th 620, cert. denied, 143 S. Ct. 2608 (2023)
(holding that a district court order rejecting the ministerial ex-
ception defense cannot be appealed under the collateral order
doctrine, but noting that the defendant had not “adequately
developed a factual record for asserting the church autonomy
defense”). 9
9 The Fifth Circuit’s decision in Whole Woman’s Health v. Smith is not
to the contrary. In that case, the Fifth Circuit granted interlocutory review
ȱȱ¢ȱȱ£ǰȱęȱCohen’s requirements satis-
ęǯȱȱȱȱȱȱȱȱ£ȱȱȱȱ
extensive and intrusive document production of its internal communica-
tions. 896 F.3d 362, 364, 367 (5th Cir. 2018). An order conclusively deter-
mining that a nonparty religious organization must be subjected to exten-
sive discovery, whatever the merits of that argument under Cohen, is not
comparable to the class of order at issue here.
No. 21-2683 23
ȱ ȱȱȱęȱȱǰȱȱȱěȱ
plausibly ȱ ȱ ęȱ ȱ ¡ǰȱ ȱ ȱ
Amendment does not automatically bar judicial examination
of that claim. See Sterlinski, 934 F.3d at 570–72. Just as in Herx,
neither Title VII’s religious exemptions nor First Amendment
religious-liberty interests confer immunity from trial such
that immediate review is warranted.
Finally, Moody’s argument that it will experience irrepa-
rable harm without immediate review and reversal of the dis-
trict court’s order is unavailing. Religious autonomy to shape
and control doctrine will not be threatened. Within its discre-
tion to manage discovery, the district court should limit dis-
covery to instances of discriminatory treatment in situations
not implicated by Moody’s complementarian beliefs. We are
sympathetic to Moody’s concerns that its beliefs might be put
under a microscope, but the district court should safeguard
against such infringement. To be clear, discovery may not ex-
plore the sincerity or ęȱf complementarianism in
Moody’s religious doctrine, question the validity of that be-
lief, or challenge policies related to it. Similarly, jury instruc-
tions will establish appropriate guardrails at trial. The district
court should manage discovery and the case to focus on dif-
ferential treatment based on sex without intruding on
Moody’s religious beliefs.
III. Conclusion
Because Moody’s appeal falls outside of the collateral or-
der doctrine’s narrow and selective class of claims subject to
interlocutory review, we DISMISS the appeal for lack of juris-
diction without reaching the merits of Moody’s Title VII and
First Amendment defenses.
24 No. 21-2683
BRENNAN, Circuit Judge, dissenting. The First Amend-
ment’s protection of church autonomy provides immunity
precluding litigation of religious questions. Court orders im-
plicating those questions can impose legal proceedings on re-
ligious organizations. Practically construed, this category of
decisions meets the requirements for a collateral order subject
to interlocutory review.
This employment litigation between a teacher and a school
concerns claims and defenses tethered to religious beliefs. The
district court orders here fall into the category of decisions
that implicate immunity under the church autonomy doc-
trine. So, I part ways with my colleagues and conclude that
appellate jurisdiction exists here under the collateral order
doctrine.
I
The First Amendment’s Religion Clauses bar court entan-
glement in matters of religious belief, doctrine, and govern-
ance. “Freedom of conscience and freedom to adhere to such
religious organization or form of worship as the individual
may choose cannot be restricted by law.” Cantwell v. State of
Connecticut, 310 U.S. 296, 303 (1940). This applies to religious
institutions, whether Christian, Jewish, Muslim, or any other
faith tradition.
The Supreme Court has interpreted those clauses to recog-
nize a “general principle of church autonomy.” Our Lady of
Guadalupe Sch. v. Morrissey-Berru, 591 U.S. –––, 140 S. Ct. 2049,
2061 (2020). “[C]hurch autonomy ‘means what it says:
churches must have ‘independence in matters of faith and
doctrine and in closely linked matters of internal govern-
ment.’” Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc.,
No. 21-2683 25
41 F.4th 931, 942 (7th Cir. 2022) (quoting Demkovich v. St. An-
drew the Apostle Par. Calumet City, 3 F.4th 968, 975 (7th Cir.
2021) (en banc) (quoting Our Lady of Guadalupe, 140 S. Ct. at
2061)). Religious groups can “define their own doctrine,
membership, organization, and internal requirements with-
out state interference.” Demkovich, 3 F.4th at 975. This auton-
omy protects religious groups in the conduct of their internal
affairs and the state from “entangle[ment] in essentially reli-
gious controversies.” Serbian E. Orthodox Diocese for U.S. of
Am. & Canada v. Milivojevich, 426 U.S. 696, 709 (1976).
Under the principle of church autonomy, “[r]eligious or-
ganizations come before [civil courts] in the same attitude as
other voluntary associations.” Watson v. Jones, 80 U.S. 679, 714
(1871). But courts leave fundamentally religious questions to
religious bodies, then apply the law just as they do to nonre-
ligious entities. See Tony & Susan Alamo Found. v. Sec’y of Lab.,
471 U.S. 290, 303–05 (1985). Courts need not—and cannot—
dismiss a case simply because a defendant declares religious
questions or defenses are involved. Id.; see also Seshadri v.
Kasraian, 130 F.3d 798, 800 (7th Cir. 1997).
Questions about religious education are protected by
church autonomy. “[T]he very core of the mission” of reli-
gious education is inculcating faith. Starkey, 41 F.4th at 939.
Given the role of teachers, for example, the National Labor
Relations Board cannot interfere with teacher-school employ-
ment relationships at religious schools. See Cath. Bishop of Chi-
cago v. N.L.R.B., 559 F.2d 1112, 1120, 1124 (7th Cir. 1977), aff’d,
440 U.S. 490 (1979). Why? Because litigation could harm the
school’s religious autonomy as the government would “be-
com[e] entangled in doctrinal matters.” Id. at 1125. After dis-
missing a teacher for “teaching a doctrine” contrary to the
26 No. 21-2683
school’s faith, the NLRB would have to ask if religion was
“merely a pretextual reason” for discharge. Id. In response,
the bishop “would have to eliminate the pretextual aspect,”
which would require proving up the validity and credibility
of “the claimed doctrinal position” for termination. Id. at 1129.
This would require “explanation and analysis, and probably
verification and justification, of the doctrinal precept in-
volved,” which “would itself erode the protective wall af-
forded by the constitutional right.” Id. 1
As the Supreme Court explained in Our Lady of Guadalupe,
“the general principle of church autonomy” protects “internal
management decisions that are essential to [a religious
group’s] central mission.” Id. at 2060–61. Together, the cases
above hold that courts cannot adjudicate employment claims
involving decisions that turn on matters of faith, doctrine, and
internal governance.
II
Under the collateral order doctrine, appellate courts need
not wait for a final decision in all cases. This court has not de-
cided whether the collateral order doctrine categorically
1 A “component” of church autonomy is a religious institution’s “se-
lection of individuals who play certain key roles.” Our Lady of Guadalupe,
140 S. Ct. at 2160. What follows is the “ministerial exception” to antidis-
crimination laws, which dictates that “courts are bound to stay out of em-
ployment disputes involving those holding certain important positions”
within religious groups. Starkey, 41 F.4th at 939 (quoting Our Lady of Gua-
dalupe, 140 S. Ct. at 2060). The ministerial exception shares its rationale
(and much interpreting case law) with “the general principle of church
autonomy.” Our Lady of Guadalupe, 140 S. Ct. at 2061; Demkovich, 3 F.4th at
975. Appellant Moody Bible Institute does not raise the ministerial excep-
tion in this appeal.
No. 21-2683 27
applies to cases involving church autonomy. It does. A pre-
judgment order implicating immunity under church auton-
omy is reviewable on interlocutory appeal. Orders denying
immunity in other contexts are similarly reviewable on inter-
locutory appeal, and other avenues of review are insufficient.
A
We are generally limited to review of “final decisions.” 28
U.S.C. § 1291. But per Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949), § 1291 permits immediate appeal of a “small
class” of orders that “finally determine claims of right separa-
ble from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.” 337 U.S. at 546. This lim-
ited review of certain categories of orders, known as the col-
lateral order doctrine, applies when: (1) a district court order
has “conclusively decided a contested issue”; (2) “the issue
decided is important and separate from the merits of the ac-
tion”; and (3) the order “would be effectively unreviewable
later in the litigation.” Osborn v. Haley, 549 U.S. 225, 238 (2007)
(citing Cohen, 337 U.S. at 546).
If a category of orders satisfies the collateral order doc-
trine, every order in that category is immediately appealable,
see Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994), regardless of a given order’s strengths or the record’s
completeness. Cohen does not permit case-by-case analysis;
we are to look to the “entire category to which a claim be-
longs, without regard to the chance that the litigation at hand
might be speeded, or a ‘particular injustice’ averted.” Id.
(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988)
(cleaned up)).
28 No. 21-2683
Expanding the collateral order doctrine to new areas of
law is disfavored. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558
U.S. 100, 114 (2009); Swint v. Chambers Cnty. Comm’n, 514 U.S.
35, 48 (1995) (insisting that Congress’s determination of juris-
dictional rules “warrants the Judiciary’s full respect”). The
doctrine has been interpreted narrowly, for if it was not, it
could “swallow the general rule that a party is entitled to a
single appeal, to be deferred until final judgment has been en-
tered.” Digit. Equip. Corp., 511 U.S. at 868; see also Will v. Hal-
lock, 546 U.S. 345, 350 (2006).
But acknowledging that the collateral order doctrine is
narrow does not preclude us from recognizing a category of
cases that falls within it. 2 Applying the collateral order doc-
trine is not expanding it. Contra supra at 13. The Supreme
Court has counseled caution when expanding the collateral
order doctrine. The majority opinion here presses Swint’s
1995 caution against such expansion. But two years after
Swint, in Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997), the
Court explicitly referenced Swint and recognized a new
2 Indeed, this circuit’s Rule 28(a)(3)(ii) recognizes this and requires lit-
igants to provide the information to determine whether the collateral or-
der doctrine applies to their case:
(3) If an appeal is from an order other than a final judgment which
adjudicates all of the claims with respect to all parties, counsel
shall provide information necessary to enable the court to deter-
mine whether the order is immediately appealable. Elaboration
will be necessary in the following cases …
(ii) If the ground of jurisdiction is the “collateral order doctrine,”
describe how the order meets each of the criteria of the doctrine
….
CIR. R. 28(a)(3)(ii).
No. 21-2683 29
category of the collateral order doctrine to encompass im-
munity from trial.
The Supreme Court and our court have not conclusively
addressed whether a decision implicating immunity under
church autonomy is categorically a collateral order. Other cir-
cuits have struggled mightily with this question. 3 With no
clear answer, close review of precedent is required.
B
The parties wrangle over whether this court’s previous de-
cision in McCarthy v. Fuller, 714 F.3d 971 (7th Cir. 2013), or in
Herx v. Diocese of Fort Wayne-S. Bend, Inc., 772 F.3d 1085 (7th
Cir. 2014), resolves this question. Neither does.
Garrick points to Herx and contends we lack jurisdiction.
But Herx is distinguishable. There, a former teacher at a Cath-
olic school sued under Title VII after she was fired for under-
going in vitro fertilization. 772 F.3d at 1086. The diocese ar-
gued that it should prevail because of its important interests
under Title VII’s religious exemption as well as church auton-
omy. Id. at 1087–88. When the district court denied summary
judgment as to both defenses, the diocese immediately ap-
pealed. Id. at 1088.
3 The Second Circuit in Belya v. Kapral, 59 F.4th 570 (2d Cir. 2023), deny-
ing rehearing en banc of 45 F.4th 621 (2d Cir. 2022), cert. denied 143 S. Ct. 2609
(2023), by a 6–6 vote declined to rehear a panel decision holding that a
religious autonomy decision is not a collateral order. 59 F.4th at 571. The
Tenth Circuit in Tucker v. Faith Bible Chapel Int’l, 53 F.4th 620 (10th Cir.
2022), denying rehearing en banc of 36 F.4th 1021 (10th Cir. 2022), cert. denied
143 S. Ct. 2608 (2023), by a 6–4 vote declined to rehear a similar decision.
53 F.4th at 621–22.
30 No. 21-2683
This court ruled that it did not have jurisdiction to review
either order. Id. at 1090–91. “[O]nly a few sentences” in the
diocese’s briefing were even “addressed to the criteria for col-
lateral-order review.” Id. at 1090. The diocese “cite[d] no au-
thority” for the proposition that its defenses “provide an im-
munity from the burdens of trial rather than an ordinary de-
fense to liability.” Id. at 1091. Despite “the importance of the
interests” the diocese asserted, it did not satisfy the collateral-
order doctrine. Id.
Herx left open the possibility that if the diocese had shown
immunity from the judicial process, an interlocutory appeal
may have been warranted. In Herx, this court “h[e]ld only that
the Diocese has not made a persuasive case for expanding the
scope of the collateral-order doctrine to cover the interlocu-
tory decision rendered here.” 772 F.3d at 1091. That holding
does not apply here. Extensive authority—including more re-
cent precedent from the Supreme Court (Our Lady of Guada-
lupe, 140 S. Ct. at 2061) and this court (Sterlinski v. Cath. Bishop
of Chicago, 934 F.3d 568, 570 (7th Cir. 2019); Demkovich, 3 F.4th
at 975)—confirms the importance of church autonomy. Herx
was a procedural dismissal. See Tucker, 36 F.4th at 1056 n.8
(Bacharach, J., dissenting). 4 So, I disagree with my colleagues
that Herx controls the jurisdictional question here.
4 As the dissent stated in Tucker:
Herx lacks any persuasive value because it relied only on the reli-
gious body’s failure to present ”a persuasive case” that the minis-
terial exception satisfied the collateral-order doctrine. For this
conclusion, the Seventh Circuit relied on deficiencies in the brief-
ing, stating that the religious body had focused ”mainly on the
merits,” spent ”only a few sentences” on jurisdiction, and failed
to cite relevant authority.
No. 21-2683 31
Moody points to McCarthy, a decision addressing a defa-
mation claim over calling a woman a “fake nun.” 714 F.3d at
974. The district court had denied a motion to take judicial
notice of an archbishop’s determination that the woman was
not a nun in good standing, ruling instead that a jury would
decide that disputed factual question. Id. This court reversed,
holding that a pretrial order denying the Religion Clauses’
protection for church autonomy—specifically, the order sub-
mitting an explicitly religious question to a jury—was appeal-
able under the collateral order doctrine. Id. Such an order is
“closely akin to a denial of official immunity,” this court
ruled, the archetype of an appealable interlocutory order. Id.
at 975–76. Like official immunity, allowing a claim barred by
the Religion Clauses to proceed to discovery and trial conclu-
sively forecloses constitutional protections against “commin-
gling of religious and secular justice.” Id. This immunity
against “governmental intrusion into religious affairs” is
“‘conceptually distinct’ from the merits” of the underlying
claim. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)).
And the Religion Clauses prevent not just “an adverse judg-
ment,” but also the “irreparable” harm caused by judicial pro-
ceedings where a “secular court [will] take sides on issues of
religious doctrine.” Id. No mention was ever made in McCar-
thy of a writ of mandamus.
This case is closer to McCarthy than to Herx. Still, McCarthy
does not necessarily control. There, the court concluded that
a decision was immediately appealable because the First
Amendment “forbids the government to make religious judg-
ments” at all. McCarthy, 714 F.3d at 976. This is a somewhat
36 F.4th at 1056 n.8 (Bacharach, J., dissenting) (citations omitted).
32 No. 21-2683
different question than the one raised here, which is whether
the Religion Clauses of the First Amendment confer an im-
munity from adjudication generally.
Because this court’s precedent does not establish whether
a church autonomy decision qualifies as an order subject to
interlocutory review, this question should be answered by
looking to 28 U.S.C. § 1291 and the test the Supreme Court set
in Cohen.
C
The collateral order doctrine is a “practical rather than
technical construction” of 28 U.S.C. § 1291. Cohen, 337 U.S. at
1226. Practically construed, a decision impacting church au-
tonomy meets each of the three collateral order requirements.
1. Order has conclusively decided a contested issue. “The most
basic element of collateral order finality is that the district
court must have decided the matter offered for appeal.” 15A
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 3911.1 (3d ed. Apr. 2023 update).
A claim concerning a religious organization’s faith, doc-
trine, or internal governance opens up that organization to lit-
igation. A district court’s decision on such a claim implicates
church autonomy. And “where it applies, the church-auton-
omy principle operates as a complete immunity, or very
nearly so.” Korte v. Sebelius, 735 F.3d 654, 678 (7th Cir. 2013).
When a district court conclusively decides a contested is-
sue—whether a religious organization is entitled to immunity
from litigation under church autonomy, or whether the suit
continues—the first requirement of the collateral order doc-
trine has been satisfied. A critical component of immunity is
“an entitlement not to stand trial or face the other burdens of
No. 21-2683 33
litigation,” which is “effectively lost if a case is erroneously
permitted to go to trial.” Mitchell, 472 U.S. at 526. In other
words, when immunity is taken off the table, a conclusive de-
cision has been made that we can review.
2. Issue decided is important and separate from the merits. A
key condition of the collateral order doctrine is that “the issue
decided is important and separate from the merits of the ac-
tion.” Osborn, 549 U.S. at 238 (citing Cohen, 337 U.S. at 546).
An order resolving a church autonomy defense under the
Religion Clauses presents an important First Amendment
question. Because religious autonomy “lies at the foundation
of our political principles,” Watson, 80 U.S. at 728, a decision
on a claim implicating church autonomy involves an im-
portant question. “When a policy is embodied in a constitu-
tional or statutory provision entitling a party to immunity
from suit (a rare form of protection), there is little room for the
judiciary to gainsay its ‘importance.’” Digit. Equip. Corp., 511
U.S. at 879 (quotations omitted). “Where statutory and consti-
tutional rights are concerned, irretrievabl[e] los[s] can hardly
be trivial… .” Id.
We also consider whether the issue is separate from the
merits of a plaintiff’s claim. The Court has recognized that “a
question of immunity is separate from the merits of the un-
derlying action for purposes of the Cohen test even though a
reviewing court must consider the plaintiff's factual allega-
tions in resolving the immunity issue.” Mitchell, 472 U.S. at
528–29. Whether a case turns on a religious question can be
“conceptually distinct from the merits of the plaintiff’s claim.”
Id. at 527; see id. at 527-29 (issue of qualified immunity purely
legal; question on appeal is—assuming truth of allegations
and assuming without deciding that those facts state a
34 No. 21-2683
claim—whether the law was clearly established when the de-
fendant acted); see also 15A WRIGHT & MILLER at § 3911.2. A
decision as to whether a case turns on a religious question is
not a step toward a final judgment and is separate from the
merits of the action, satisfying the second element of the col-
lateral order doctrine. See Cohen, 337 U.S. at 546. 5
3. Order is effectively unreviewable later in litigation. Last, to
satisfy the collateral order doctrine “[t]here must be a risk that
the order will evade review on appeal from a final judgment,
and the evasion of review must create a significant hardship.”
15A WRIGHT & MILLER at § 3911.3. Appeals of collateral orders
are appropriate “only where the order at issue involves ‘an
asserted right the legal and practical value of which would be
destroyed if it were not vindicated before trial.’” Midland As-
phalt Corp. v. United States, 489 U.S. 794, 799 (1989) (quotation
omitted).
An appeal from a final judgment would do no good to ad-
dress a pre-judgment order about whether the immunity con-
ferred by church autonomy applies, as “it will be too late ef-
fectively to review” the order. 15A WRIGHT & MILLER at
§ 3911.3. The question of immunity from suit under the
church autonomy doctrine, after litigation and the court’s de-
cision, would be automatically answered to the contrary.
Litigation and its related costs create a hardship that the
church autonomy doctrine was meant to avoid—an adversity
5 For example, in Belya the majority opinion, 45 F.4th at 632, and the
dissent from the denial of rehearing en banc, 59 F.4th at 578, effectively
agreed that this second element was satisfied when litigating a church au-
tonomy defense. See also Tucker, 36 F.4th at 1036 (majority explaining that
Cohen’s second requirement satisfied).
No. 21-2683 35
that is effectively unreviewable later in a case. Avoiding that
harm is why immunity-related issues should be decided at
the earliest opportunity.
The Supreme Court has explained that the Religion
Clauses limit the process of litigation, not merely liability.
This is because “[i]t is not only the conclusions that may be
reached by [the government] which may impinge on rights
guaranteed by the Religion Clauses, but also the very process
of inquiry leading to findings and conclusions.” Cath. Bishop,
440 U.S. at 502. Indeed, the Religion Clauses bar “any at-
tempt” by courts “even to influence” matters of faith, doc-
trine, or governance. Our Lady of Guadalupe, 140 S. Ct. at 2060.
This court has also stressed that the Religion Clauses pro-
tect religious organizations from the harm caused by a trial,
not just an adverse judgment. Sitting en banc, this Court ech-
oed the Supreme Court’s admonition that “‘the very process
of inquiry’” can “impinge on rights guaranteed by the Reli-
gion Clauses,” warning those rights can be harmed by the
“protracted legal process” of Title VII adjudication and the
ensuing “prejudicial effects of incremental litigation.” Dem-
kovich, 3 F.4th at 982–83 (quoting Cath. Bishop, 440 U.S. at 502
and Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d
1164, 1171 (4th Cir. 1985)).
In Catholic Bishop of Chicago v. NLRB, this court rejected the
NLRB’s attempt to exercise jurisdiction over Catholic schools
in part because of the “chilling aspect” that a “protracted and
expensive unfair labor practice proceeding” would have on
the schools’ religious freedom. 559 F.2d at 1124. Similarly, in
Sterlinski, this court ruled that a purpose of the church auton-
omy doctrine is “to avoid such judicial entanglement” as
“subjecting religious doctrine to discovery and, if necessary,
36 No. 21-2683
jury trial.” 934 F.3d at 570. In sum, where “the course of adju-
dication” will cause religious entanglement, judicial involve-
ment is barred. Tomic v. Cath. Diocese of Peoria, 442 F.3d 1036,
1039 (7th Cir. 2006). 6 The process is part of the injury against
which the First Amendment protects.
D
The church autonomy doctrine is similar to other immun-
ity doctrines on which collateral orders may warrant immedi-
ate appeal. See, e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 147 (1993) (Eleventh Amendment im-
munity); Nixon v. Fitzgerald, 457 U.S. 731, 757 (1982) (absolute
immunity); Abney v. United States, 431 U.S. 651, 662 (1977)
(double jeopardy immunity); 7 see also Lael D. Weinberger, Is
Church Autonomy Jurisdictional?, 54 LOY. U. CHI. L.J. 471, 503–
05 (2023). Chief among these is qualified immunity,
6 See also Amicus Brief of Federal Courts Professor Derek T. Muller at
4–5, Garrick v. Moody Bible Inst., No. 21-2683 (7th Cir. Aug. 7, 2023) (“When
a district court denies a pretrial motion (1) asserting a defense against the
burdens of litigation itself (2) that is rooted in constitutional principles, its
order is immediately appealable under Section 1291. … [T]he church au-
tonomy defense meets both those criteria … .”)
7 The majority opinion attempts to distinguish the church autonomy
doctrine by saying, “this suit implicates only private parties.” Supra at 21.
But the collateral order doctrine is not limited to government officials or
entities. Private parties’ interests are regularly protected. See, e.g., Abney,
431 U.S. at 659, 662 (holding that a “pretrial order denying a motion to
dismiss an indictment on double jeopardy grounds” satisfies Cohen and
“the jurisdictional prerequisites” of 28 U.S.C. § 1291); Sell v. United States,
539 U.S. 166, 173, 177 (2003) (holding that an “order authorizing the invol-
untary administration of antipsychotic drugs” to a criminal defendant
“was an appealable ‘collateral order’” under 28 U.S.C. § 1291).
No. 21-2683 37
recognized in Mitchell as providing the basis for appeal of a
collateral order. 472 U.S. at 527–29.
Several courts, including this one, see McCarthy, 714 F.3d
at 975, have recognized the similarities between church au-
tonomy and qualified immunity. See Skrzypczak v. Roman Cath.
Diocese of Tulsa, 611 F.3d 1238, 1242 (10th Cir. 2010); Petruska
v. Gannon Univ., 462 F.3d 294, 302–03 (3d Cir. 2006); Bryce v.
Episcopal Church in the Diocese of Colo., 289 F.3d 648, 654 (10th
Cir. 2002) (“[T]he assertion that the First Amendment pre-
cludes [a lawsuit challenging church decision-making] is sim-
ilar to a government official’s defense of qualified immun-
ity.”).
Both immunities are rooted in foundational constitutional
interests—the former the interest in precluding governmental
intervention in religious disputes, and the latter in separation
of powers concerns. See Belya, 59 F.4th at 578–79 (Park, J., dis-
senting from the order denying rehearing en banc). Both are
protections against the burdens of litigation. Id. at 579. And
both involve legal questions that must be decided at the
threshold. See Mitchell, 472 U.S. at 525–26 (holding qualified
immunity defense should be decided early); Tucker, 36 F.4th
at 1056–57 (Bacharach, J., dissenting) (noting value of early ju-
dicial review for ministerial exception and how ministerial ex-
ception is analogous to qualified immunity); Tucker, 53 F.4th
at 627 (Bacharach, J., dissenting from denial of en banc con-
sideration). (discussing negative impact of delayed judicial re-
view); Weinberger at 501–02 (stating reason for early resolu-
tion of immunity claims applies to church autonomy cases).
Church autonomy cases implicating immunity are even
better candidates for interlocutory appeal than qualified im-
munity cases. Both immunities should be addressed at the
38 No. 21-2683
threshold of litigation, but for different reasons. Qualified im-
munity is resolved early to avoid excessive disruption of gov-
ernment, and it is a judicially-crafted doctrine. See Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Yet, early resolution of im-
munity under the church autonomy doctrine is essential to
protect a religious organization’s First Amendment rights and
to avoid excessive entanglement of the government in reli-
gious affairs. See Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. E.E.O.C., 565 U.S. 171, 188–89 (2012).
E
There are other paths to appellate review of a case before
judgment without recognizing a new appeal as of right. A dis-
trict court can certify a question of law for interlocutory re-
view under 28 U.S.C. § 1292(b). See Demkovich, 3 F.4th at 974.
And a party may petition for relief under the All Writs Act, 28
U.S.C. § 1651(a). But those alternative routes do not preclude
the collateral order doctrine from applying to church auton-
omy decisions, and the Rules Enabling Act, 28 U.S.C.
§ 2072(c), does not change that.
Section 1292(b) is too arbitrary of a vehicle for review
when constitutional rights are at stake. “The fundamental
purpose of § 1292(b) is to permit discretionary avoidance of
the finality requirement.” 16 WRIGHT & MILLER at § 3929.1.
Church autonomy cases derive their immunity from the Reli-
gion Clauses of the First Amendment, a constitutional protec-
tion that is not discretionary. An interlocutory appeal under
§ 1292(b) may result in capricious outcomes. Consider two
cases with similar facts in the same procedural posture pre-
senting the same issue implicating church autonomy. They
could result in identical rulings, yet one district court may
No. 21-2683 39
certify its order for interlocutory appeal under § 1292(b) while
another may not (more on this later).
A writ of mandamus under 28 U.S.C. § 1651(a) is an ex-
traordinary vehicle that cannot substitute for appellate review
of a category of collateral orders. “[I]t is regularly stated that
a writ must not be used as a mere substitute for appeal.” 16
WRIGHT & MILLER at § 3932; see also id., at § 3929.1. The burden
to secure a writ is much greater: the challenged order “must
so far exceed proper bounds of judicial discretion as to be le-
gitimately considered usurpative in character, or in violation
of a clear and indisputable legal right, or, at the very least,
patently erroneous.” In re LimitNone, LLC, 551 F.3d 572, 575
(7th Cir. 2008) (citation omitted).
These two paths may allow oversight of an individual
case. But they are no match for the review of the category of
claims implicating church autonomy.
The Rules Enabling Act, 28 U.S.C. § 2072(c), also is not a
valid alternative when immunity under the First Amend-
ment’s church autonomy is implicated. That Act gives the Su-
preme Court authority to issue rules defining which orders
should be considered final and appealable under 28 U.S.C.
§ 1291, and which categories of nonfinal, interlocutory orders
should be immediately appealable under 28 U.S.C. § 1292. See
id. § 1292(e). But Congress cannot create a rule to limit a con-
stitutional right; that would require constitutional amend-
ment.
* * *
For these reasons, we have jurisdiction to review a district
court’s order on a claim implicating immunity under the
40 No. 21-2683
church autonomy doctrine. Such an order qualifies as a “final
decision” and should be immediately appealable. 8
This does not mean that decisions on all claims involving
a religious organization would satisfy the collateral order re-
quirements. Many types of litigation involving religious or-
ganizations fail to implicate church autonomy, from civil tort,
to breach of contract, to real and personal property disputes.
A chasm may exist between such claims and a cause of action
implicating church autonomy. But just because the former
claims do not qualify for interlocutory review, it does not fol-
low that the latter should not qualify under the collateral or-
der doctrine.
III
The district court’s decisions here fall into a category of
orders subject to interlocutory review. This case’s facts and
history, considered under the requirements of the collateral
order doctrine, show why.
A
1. Garrick alleges religious discrimination, and her claims are
dismissed. Garrick filed an EEOC charge in January 2018 alleg-
ing sex, religion, and retaliatory discrimination in violation of
Title VII. She claimed Moody terminated her “because of [her]
gender and [her] religion (egalitarian Christian).” The EEOC
8 See, e.g., Adam R. Moore, A Textualist Defense of a New Collateral Order
Doctrine, 99 NOTRE DAME L. REV. REFLECTION 1, 39–45 (2023) (denial of mo-
tion to dismiss on religious autonomy defense is “final decision[]” and can
be immediately appealed under § 1291).
No. 21-2683 41
investigated, was unable to find a violation, and issued her a
right-to-sue letter.
Garrick sued, and her first amended complaint included
several employment-related discrimination claims. In that
pleading, Garrick asserted that Moody’s religious discrimina-
tion was in part pretext. But in that same complaint, she also
alleged that Moody had “created a hostile workplace by dis-
criminating against egalitarian Christians repeatedly.” Gar-
rick expressly claimed that “Moody discriminated against
[her] on the basis of religion (egalitarian Christian) in viola-
tion of [Title VII].”
The district court granted Moody’s motion to dismiss. The
court considered Moody’s defense of church autonomy and
concluded that “Moody’s alleged reasons for firing Garrick
were rooted firmly in its religious beliefs.” If the court “were
to delve into the disputes posed by Garrick, it would imper-
missibly inject the auspices of government into religious doc-
trine and governance.” The court also dismissed Garrick’s
other claims, but it did so without prejudice and allowed Gar-
rick to replead. 412 F. Supp. 859 (N.D. Ill. 2019).
2. Garrick amends her pleading, limiting religious references. In
her second amended complaint, Garrick claimed that Moody
committed sex discrimination and engaged in disparate treat-
ment and retaliation, all in violation of Title VII. The second
amended complaint left unchanged the numerous allegations
describing how Garrick advocated against Moody’s beliefs
and practices related to gender roles in pastoral ministry. She
continued to claim that Moody told her verbally and in writ-
ing that her contract was not renewed because she “was not
aligned with [Moody’s] doctrinal statement as it related to
gender roles in ministry.”
42 No. 21-2683
In this pleading, Garrick alleged no new material facts and
raised no new claims. In some instances, she simply deleted
doctrinal words like “Bible” and “Theology” that she had pre-
viously pleaded. The second amended complaint again al-
leged that Moody required all faculty members to affirm its
doctrinal statements as part of their employment contract,
and that Garrick openly rejected the doctrinal statement’s po-
sition on the role of women in the ministry. She also repeated
verbatim her allegation that the stated reason for her termina-
tion—that she “held an egalitarian view”—was “pretext for
[Moody’s] true motives—discrimination and retaliation.”
Despite not including new material facts and not raising
new claims, Garrick adjusted her narrative to support a new
theory. Now, she said, Moody’s given explanation for her ter-
mination was pretext for discrimination, which arose only af-
ter she advocated for full inclusion of female students.
But the record is directly to the contrary. Garrick lays out
the parties’ disagreement about religious beliefs in her EEOC
charge and first amended complaint. Those religious beliefs
permeate her employment at this faith-based school and her
various claims. 9 The same holds true for Moody’s defenses.
9 For example, Garrick claims Moody relied on religious disagreement
as pretext for sex discrimination, as shown in her 2017 termination letter
in which Moody claims that Garrick is a “poor fit” at the school. But this
termination letter was not the first time Moody had shared its concern
about the differing religious beliefs between Garrick and the school.
Throughout 2016 the parties disagreed about gender participation in the
ordained ministry. And Moody “announced that it intended to … open
the Pastoral Ministry program to women” in April 2016. Several months
later, in September 2016, Garrick told a story about a transgender student
who felt excluded at Moody. The next day a Moody administrator told
Garrick she was “not a Moody fit.” So, the religious disagreement—and
No. 21-2683 43
Questions about those beliefs would inevitably arise during
litigation, and again lead to the district court’s original con-
clusion of judicial entanglement in religious questions. So,
Moody again moved to dismiss, raising the church autonomy
defense.
3. Garrick’s second amended complaint is allowed to proceed.
This time, though, the district court denied Moody’s motion
to dismiss, and Garrick’s second amended complaint sur-
vived. 494 F. Supp. 570 (N.D. Ill. 2020).
The district court acknowledged that “the religious auton-
omy doctrine turns on the substance of a plaintiff’s claims, not
the label she chooses to attach to them” and that much of Gar-
rick’s complaint continued to revolve around her disagree-
ment with Moody’s religious “complementarian creed.” Nev-
ertheless, the court ruled that Garrick’s sex discrimination
claim could proceed because, although the first amended
complaint alleged “she was actually fired because of her ad-
vocacy in favor of female students joining the Pastoral Minis-
try Program,” “the present complaint portrays Moody’s reli-
gious justification as a pretext for gender discrimination.” Ac-
cording to the district court, the case could proceed without
the court “sit[ting] in judgment as to what Moody’s comple-
mentarian doctrine entails or whether it represents a reason-
able basis for firing Garrick.” Rather, at issue is “whether
Moody terminated her because of its religious beliefs or
whether its invocation of its religious beliefs was, in fact, a
cover to discriminate against Garrick because of her gender.”
the “poor fit”—stemmed from the meeting where Garrick told the story,
which was after the inclusion of female students was resolved.
44 No. 21-2683
To the district court, church autonomy prohibits courts
from determining the validity or plausibility of a religious ra-
tionale, not whether the supposed religious rationale was the
actual motivation for a decision. Because Garrick plausibly al-
leged that Moody’s true reason for firing her was sex discrim-
ination, the church autonomy doctrine did not “entirely fore-
close[] Garrick’s claims.” But to the extent Garrick’s allega-
tions challenged Moody’s complementarian beliefs, the dis-
trict court again explicitly rejected them. In so concluding, the
court did not acknowledge that both complaints contained
identical language regarding pretext. Nor did the court ad-
dress Garrick’s EEOC charge, attached to both complaints,
with its sworn admission that Moody declined to renew Gar-
rick’s contract because she rejected Moody’s religious beliefs.
Moody moved for reconsideration, again relying on
church autonomy principles as barring Garrick’s claims, but
the district court denied the motion. In the alternative, Moody
sought certification to appeal under 28 U.S.C. § 1292(b). The
district court denied this request in one sentence of reasoning:
Moody had not cited a decision showing “that the First
Amendment bars any inquiry into whether a religious em-
ployer’s proffered doctrinal reason for an adverse employ-
ment action was the actual reason … .”
B
Moody, as the appellant, bears the burden to show that a
decision meets the collateral order doctrine’s requirements.
Garrick contends that Moody cannot carry its burden, but that
is not correct. Each of the three collateral order doctrine re-
quirements are met because the district court’s decisions on
Moody’s second motion to dismiss and motion for reconsid-
eration directly implicate church autonomy.
No. 21-2683 45
1. Order has conclusively decided a contested issue. The district
court’s decisions allowing this suit to continue are conclusive
because they take immunity off the table.
The decisions will subject Moody to invasive civil adjudi-
cation, including depositions of school leaders about sensitive
religious matters. Garrick will ask a jury to attribute secular,
sex-based motivations to Moody, even while admitting that
Moody had religious motivations and that the parties had a
religious dispute about sex-based religious distinctions for re-
ligious leadership roles. Her claims will thus entangle the
courts and a jury in questions over the development, mean-
ing, and strength of Moody’s church-leadership doctrines; its
internal religious deliberations regarding Garrick’s rejection
of its doctrine; and its religious decisions involving other pro-
fessors and students that violated its doctrine. Likewise, to
persuade a jury of the credibility of its religious motivations,
Moody will have to show the importance of its religious doc-
trine—and the importance of all its teachers agreeing with
it—as that doctrine relates to Moody’s religious mission. See
Cath. Bishop, 559 F.2d at 1120, 1124. Thus, a “civil factfinder”
will “sit[] in ultimate judgment of what the accused church
really believes, and how important that belief is to the
church’s overall mission.” Hosanna-Tabor, 565 U.S. at 206
(Alito, J., concurring). The district court’s decisions on
Moody’s motions to dismiss directly impact the religious
school’s claim of church autonomy in shaping its own reli-
gious doctrine and internal governance.
The majority opinion frames the district court’s decisions
as “den[ying] [Moody’s] religious autonomy guaranteed by
the First Amendment by second-guessing its determination
that Garrick was not in doctrinal good standing.” Supra at 18.
46 No. 21-2683
But that is not quite accurate. Yes, Moody explains that the
district court “ordered that the judiciary must second-guess
[its] determination that Garrick was not in doctrinal good
standing … .” And Moody says that, because of that order,
the school will be subject “to invasive civil adjudication.” But
that litigation is what Moody claims violates its religious au-
tonomy guaranteed by the First Amendment.
The district court conclusively denied Moody’s religious
autonomy guaranteed by the First Amendment. It did so not
by second-guessing its decision that Garrick was not in doc-
trinal good standing, but by making Moody continue legal
proceedings when a faith-based school is immune from litiga-
tion about religious issues. It engaged with this question sev-
eral times, initially granting the motion to dismiss, and then
denying the second motion to dismiss as well as the motion
for reconsideration. The court decided between ending the lit-
igation or letting it continue. That is the conclusive decision
which Moody says should not stand.
2. Issue decided is important and separate from the merits. The
First Amendment right against government intrusion and en-
tanglement in religion is undoubtedly important and is “con-
ceptually distinct” from Garrick’s Title VII claims. Not only is
the right “capable of review without extensive examination of
the underlying merits of the case,” Montano v. City of Chicago,
375 F.3d 593, 598–99 (7th Cir. 2004), it seeks to prevent such
entangling merits examination. That is because the church au-
tonomy doctrine is a “broad principle” that both guarantees a
religious group’s “independence in matters of faith and doc-
trine and in closely linked matters of internal government,”
Our Lady of Guadalupe, 140 S. Ct. at 2061, and sets the federal
No. 21-2683 47
judiciary’s “independent” obligation to avoid entanglement
in “religious controversy.” Tomic, 442 F.3d at 1042.
Once again, Garrick and my colleagues misunderstand the
issue that is separate from the merits of the action. As ex-
plained above, the conclusive decision is whether Moody’s
First Amendment right to church autonomy applies to Gar-
rick’s second amended complaint, not whether Moody’s
stated reason for firing Garrick is pretext. I agree that the lat-
ter is not separate from the merits of a Title VII claim—it is the
merits of such a claim. See Coleman v. Donahoe, 667 F.3d 835,
845 (7th Cir. 2012) (explaining methods of proof for discrimi-
nation claim, including role of pretext evidence). But that is
not the question presented to us here.
3. Order is effectively unreviewable later in litigation. Moody
correctly concludes that its First Amendment rights will be
lost forever if appellate review is postponed. Adjudication
will result in “onerous” burdens on church autonomy rights,
including “depositions of fellow ministers and the search for
a subjective motive behind the alleged hostility,” all of which
“impermissibly requires ‘intrusion into a religious thicket.’”
Demkovich, 3 F.4th at 981, 983 (quoting Milivojevich, 426 U.S. at
719). The church autonomy doctrine provides religious or-
ganizations immunity from not only an adverse adjudication,
but from the judicial process. If this court does not hear this
issue on interlocutory appeal, Moody will be irreparably
harmed. This court should exercise jurisdiction under the col-
lateral order doctrine.
C
We should see this case for what it is—Garrick and Moody
profess different views of Christianity and how that faith
48 No. 21-2683
should be taught. Even before she filed suit, Garrick claimed
that is why Moody fired her. And on that ground, Moody
must defend itself and its decisions.
Written and oral discovery will unavoidably implicate the
parties’ religious differences. Their beliefs will be scoured for
evidence on the topic of pretext. To properly represent their
clients, attorneys for each party will have to delve into many
religious topics:
x Garrick’s beliefs as to Moody’s doctrinal statement
on complementarian Christianity, which was incor-
porated into the faculty contract she signed three
times;
x Moody’s knowledge about Garrick’s egalitarian re-
ligious beliefs and her disagreements with the
school’s complementarian religious beliefs, includ-
ing before hiring her;
x Whether Moody appropriately relied on Garrick’s
affirmation of the school’s doctrinal statement as
proof of complementarian beliefs;
x Garrick’s advocacy at the school for egalitarian ra-
ther than complementarian Christianity;
x Garrick’s view of the gender roles in Christian min-
istry;
x Whether Moody’s complementarian religious be-
liefs have changed before, during, or after Garrick’s
employment at the school;
as well as other matters evincing religious differences be-
tween the parties. It is not possible to litigate this case without
touching religious topics and questions.
No. 21-2683 49
After the parties explain and defend their differing views
of Christianity during discovery, summary judgment motions
will follow. Then the courts will face the dispositive question:
can Moody end the employment of a teacher whose religious
views differ from those of the school?
The district court thought that whether Moody’s religious
beliefs supplied a reasonable basis to terminate Garrick need
not be reached. Discovery would merely examine whether
Moody’s religious beliefs were a pretext for sex discrimina-
tion. 494 F. Supp. 3d at 576–79. But there is no way to decide
whether termination is based on different religious beliefs—
or whether those beliefs are pretextual—without exploring
what those religious beliefs are: what they entail, their con-
tours, how they differ, and more.
A district court cannot monitor this case through its life
cycle without entering the field of religious controversy. This
will threaten a faith-based school’s autonomy over its affairs
and its authority to shape and control how and what it
teaches.
The district court correctly recognized this in its first deci-
sion on Moody’s motion to dismiss. Garrick’s second
amended complaint was sanitized of some religious terms,10
but her claims remained essentially the same. 11 In all material
respects, this is the same lawsuit before and after the district
10 Even after repleading, the second amended complaint mentions
egalitarian Christianity five times (Dkt. 97 ¶¶ 20, 85, 89, 93, 96) and com-
plementarian Christianity and Garrick’s Christian beliefs once each (Dkt.
97 ¶ 96 and ¶ 20).
11 Eleven of Garrick’s thirteen allegations of discrimination in the sec-
ond amended complaint were in her first amended complaint.
50 No. 21-2683
court’s decision on Moody’s first motion to dismiss. Regard-
less of how Garrick attempts to purge religious language from
her complaint, the record shows how her claims implicate
church autonomy, and thus why an interlocutory appeal here
is proper. A fundamental right like church autonomy, as
found in the First Amendment Religion Clauses, should not
turn on a pleading game.
For my colleagues, “[c]ourts may exercise authority when
the resolution does not require inquiry into doctrinal dis-
putes.” Supra at 13. This begs the question, though, as to when
and how the court inquires into religious doctrine. The major-
ity opinion says the district court “rightly noted” that the sec-
ond amended complaint alleges gender discrimination “apart
from any doctrinal disagreements.” Supra at 15 n.6. But as
demonstrated above, the factual background and procedural
history here evidence a deep and abiding religious disagree-
ment between Garrick and her avowed egalitarian Christian-
ity and Moody's institutional complementarian Christianity.
That fundamental dispute underpins Garrick’s complaints
about her employment and Moody’s defense of its decisions
and actions. Why she was terminated—the subject of discov-
ery and trial—turns on this disagreement.
It follows that we have jurisdiction here to review the dis-
trict court’s collateral orders implicating church autonomy.
Like with qualified immunity, interlocutory review on ques-
tions of church autonomy should not depend on a district
court’s discretionary call on whether to certify its order for in-
terlocutory appeal under § 1292(b). Notwithstanding similar
employment disputes, in Demkovich the district court allowed
an interlocutory appeal under § 1292(b). 3 F.4th at 974. Yet
here, the district court did not. This stark contrast shows the
No. 21-2683 51
need for categorical review of church autonomy decisions, in-
cluding in this case.
Moody and other religious entities and organizations are
not entitled to complete immunity from suit. Rather, they may
be entitled to immunity when church autonomy questions
about religious doctrine are at issue. If Garrick fell on school
property, or a car crashed into her vehicle in the school park-
ing lot, nothing would prevent her from suing the school in
tort. Or if Garrick bought personal property from Moody and
they disputed that transaction, she could certainly sue the
school for breach of contract. Church autonomy is not impli-
cated in any of those types of actions. But when Garrick sues
a religious school claiming she was fired because she and
Moody profess different Christian tenets, that places how the
parties understand and live out their faiths—including their
religious differences—at the center of that lawsuit and subject
to discovery and trial.
Appellate jurisdiction exists here under the collateral or-
der doctrine. Because the majority opinion concludes it does
not and declines to reach the merits, I do not reach the merits
either.
For the reasons given above, I respectfully dissent from
the dismissal of this appeal for lack of jurisdiction.