Amicus Curiae Brief — Faith Bible Chapel International, Petitioner v. Gregory Tucker

No. 22-741

IN THE

Supreme Court of the United States

FAITH BIBLE CHAPEL INTERNATIONAL,

Petitioner,

v.

GREGORY TUCKER,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMICI CURIAE LAW & RELIGION

SCHOLARS IN SUPPORT OF PETITIONER

THOMAS G. HUNGAR

JUN NAM

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

RUSSELL BALIKIAN

333 South Grand Avenue

ANNA CASEY

Los Angeles, CA 90071

ANDREW D. FERGUSON

(213) 229-7000

LAVI M. BEN DOR*

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

THungar@gibsondunn.com

Counsel for Amici Curiae

*Admitted only in New York and Pennsylvania; practicing under the

supervision of principals of the firm.

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 4

I.

THE AVAILABILITY OF INTERLOCUTORY

APPEALS FOR ORDERS DECLINING TO APPLY

THE MINISTERIAL EXCEPTION IS A QUESTION

OF IMMENSE IMPORTANCE THAT WARRANTS

REVIEW................................................................... 4

II. THE COURT HAS ALREADY LAID THE

DOCTRINAL FOUNDATION NECESSARY TO HOLD

THAT DENIAL OF THE MINISTERIAL EXCEPTION

IS SUBJECT TO INTERLOCUTORY APPELLATE

REVIEW................................................................... 6

A. Under Existing Precedent, Interlocutory

Appeal Is Available to Vindicate Official

Immunities. ....................................................7

B. In Light of the Court’s Official-Immunity

Precedents, Interlocutory Appeal Should

Be Available to Vindicate the Ministerial

Exception. .....................................................11

CONCLUSION .......................................................... 23

LIST OF AMICI CURIAE ................................... App.1

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abney v. United States,

431 U.S. 651 (1977) .............................................. 10

Anderson v. Creighton,

483 U.S. 635 (1987) .............................................. 21

Behrens v. Pelletier,

516 U.S. 299 (1996) .............................................. 22

Belya v. Kapral,

59 F.4th 570 (2d Cir. 2023) ...................... 3, 4, 6, 23

Bradley v. Fisher,

80 U.S. (13 Wall.) 335 (1871) ................................. 9

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) ........................................ 10, 23

Conlon v. InterVarsity Christian Fellowship,

777 F.3d 829 (6th Cir. 2015) ................................ 13

Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) ................................ 5, 6, 18, 19

Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491 (1975) ................................................ 8

Fratello v. Archdiocese of N.Y.,

863 F.3d 190 (2d Cir. 2017) ................................. 18

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .......................................... 23

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................... 7, 9, 10

iii

Helstoski v. Meanor,

442 U.S. 500 (1979) .............................................. 10

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) ................. 1, 2, 4, 5, 12, 13, 14,

15, 17, 18, 19, 20, 21

Hunter v. Bryant,

502 U.S. 224 (1991) ........................................ 10, 20

Imbler v. Pachtman,

424 U.S. 409 (1976) ................................................ 9

McCarthy v. Fuller,

714 F.3d 971 (7th Cir. 2013) ................................ 23

Mitchell v. Forsyth,

472 U.S. 511 (1985) .................. 9, 10, 11, 19, 20, 22

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ...................................... 7, 8, 10

NLRB v. Cath. Bishop of Chi.,

440 U.S. 490 (1979) ................................................ 5

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

140 S. Ct. 2049 (2020) .......... 2, 3, 4, 5, 6, 13, 14, 21

Pearson v. Callahan,

555 U.S. 223 (2009) .............................. 9, 10, 21, 22

Pierson v. Ray,

386 U.S. 547 (1967) ................................................ 9

Presbyterian Church in U.S. v.

Mary Elizabeth Blue Hull Mem’l

Presbyterian Church,

393 U.S. 440 (1969) .............................................. 18

iv

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) .............................................. 23

Serbian E. Orthodox Diocese for U.S. of

Am. & Canada v. Milivojevich,

426 U.S. 696 (1976) .............................. 6, 12, 13, 17

Stump v. Sparkman,

435 U.S. 349 (1978) ................................................ 8

Swint v. Chambers Cnty. Comm’n,

514 U.S. 35 (1995) ................................................ 10

Tenney v. Brandhove,

341 U.S. 367 (1951) ................................................ 8

Thomas v. Rev. Bd. of Ind. Emp. Sec.

Div.,

450 U.S. 707 (1981) .............................................. 17

Tomic v. Cath. Diocese of Peoria,

442 F.3d 1036 (7th Cir. 2006) .............................. 18

Tucker v. Faith Bible Chapel Int’l,

36 F.4th 1021 (10th Cir. 2022) ............................ 22

Tucker v. Faith Bible Chapel Int’l,

53 F.4th 620 (10th Cir. 2022) .......................... 3, 21

United States v. Ballard,

322 U.S. 78 (1944) ................................................ 12

Watson v. Jones,

80 U.S. (13 Wall.) 679 (1872) ......................... 16, 17

White v. Pauly,

580 U.S. 73 (2017) .................................................. 9

Will v. Hallock,

546 U.S. 345 (2006) .............................................. 11

v

Constitutional Provision

U.S. Const. art. I, § 6, cl. 1 .......................................... 8

Other Authorities

Helen M. Alvaré, Church Autonomy

After Our Lady of Guadalupe School,

25 Tex. Rev. L. & Pols. 319 (2021) ...................... 14

22 Annals of Cong. 982–83 (1811) ............................ 16

Thomas C. Berg, Kimberlee Wood

Colby, Carl H. Esbeck & Richard W.

Garnett, Religious Freedom, ChurchState Separation, and the Ministerial

Exception, 106 Nw. U. L. Rev.

Colloquy 175 (2011) ............................................. 17

Mark E. Chopko & Marissa Parker,

Still a Threshold Question: Refining

the Ministerial Exception PostHosanna-Tabor, 10 First

Amendment L. Rev. 233 (2012) ........................... 21

John Hart Ely, Democracy and Distrust:

A Theory of Judicial Review (1980) ..................... 13

Noah Feldman, The Intellectual Origins

of the Establishment Clause,

77 N.Y.U. L. Rev. 346 (2002) ............................... 14

Richard W. Garnett, Hosanna-Tabor,

Religious Freedom, and

Constitutional Structure,

2011–12 Cato Sup. Ct. Rev. 307 .......................... 15

Paul Horwitz, Act III of the Ministerial

Exception, 106 Nw. U. L. Rev. 973

(2012) .................................................................... 12

vi

5 The Founders’ Constitution (Philip B.

Kurland & Ralph Lerner eds., 1987) ............. 14, 15

Douglas Laycock, Church Autonomy

Revisited, 7 Geo. J. L. & Pub. Pol’y

253 (2009) ............................................................... 5

Douglas Laycock, Hosanna-Tabor and

the Ministerial Exception, 35 Harv.

J. L. & Pub. Pol’y 839 (2012) ............................... 18

John Locke, A Letter Concerning

Toleration (1689) ............................................ 14, 15

Christopher C. Lund, Free Exercise

Reconceived: The Logic and Limits of

Hosanna-Tabor, 108 Nw. U. L. Rev.

1183 (2014) ........................................................... 19

Letter from James Madison to Bishop

Carroll (Nov. 20, 1806)................................... 15, 16

James Madison, Memorial and

Remonstrance Against Religious

Assessments (June 20, 1785)................................ 15

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion, 103 Harv. L.

Rev. 1409 (1990) ................................................... 14

Michael W. McConnell, Reflections on

Hosanna-Tabor, 35 Harv. J.L. &

Pub. Pol’y 821 (2012) ........................................... 13

20 Records of the American Catholic

Historical Society (1909) ...................................... 15

1

INTEREST OF AMICI CURIAE 1

Amici curiae are legal scholars who research,

write, and teach about the First Amendment’s Religion Clauses and the interplay of law and religion.

Amici believe that a robust ministerial exception is

critical to safeguarding the Clauses’ guarantee that

religious institutions may decide who performs religious functions, free from government interference.

Amici write to explain the need for this Court’s review

to confirm that the ministerial exception is an immunity from suit that courts should resolve at the first opportunity—including on interlocutory appeal—rather

than exposing religious organizations to costly litigation before concluding that the exception applied all

along.

Amici are the following eleven legal scholars:

Berg, Thomas C.

Clark, Elizabeth

Cochran, Robert F., Jr.

Garnett, Richard W.

Laycock, Douglas

Lund, Christopher

Moreland, Michael P.

Paulsen, Michael

Pushaw, Robert J.

Skeel, David A.

Volokh, Eugene

Professor Laycock argued Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171

(2012), and all amici have written extensively on matters relevant to this case. An overview of amici’s relevant scholarship is included in the Appendix.

1

Pursuant to Supreme Court Rule 37.2, counsel of record for

all parties received timely notice of the intent to file this brief.

Pursuant to Supreme Court Rule 37.6, no counsel for a party authored this brief in whole or in part, and no person or entity other

than amici or their counsel made a monetary contribution to this

brief ’s preparation.

2

SUMMARY OF ARGUMENT

In Hosanna-Tabor Evangelical Lutheran Church

& School v. EEOC, 565 U.S. 171 (2012), this Court

recognized the “ministerial exception”—a doctrine

grounded in the First Amendment’s Religion Clauses

that precludes courts from applying secular laws “to

claims concerning the employment relationship between a religious institution and its ministers.” Id. at

188; accord Our Lady of Guadalupe Sch. v. MorrisseyBerru, 140 S. Ct. 2049, 2060 (2020).2 This case raises

a question that has divided the courts of appeals:

whether the ministerial exception is an immunity

from suit, such that an order denying application of

the ministerial exception is subject to interlocutory

appeal.

This procedural question has important substantive implications and warrants review. As this case

demonstrates, failing to treat the ministerial exception as an immunity from suit to be resolved early in

the litigation and subject to interlocutory review risks

imposing on religious institutions the substantial burdens of litigation—including large expenses, probing

discovery, and judicial examination into inherently ecclesiastical questions—even when they are exempt

2 As members of this Court have recognized, “the term ‘ministerial exception’ is somewhat of a misnomer” because the doctrine “is not limited to members of the clergy or others holding

positions akin to that of a ‘minister.’” Our Lady of Guadalupe,

140 S. Ct. at 2069 n.1 (Thomas, J., concurring). The doctrine

applies to “certain key employees” of religious organizations who

perform religious functions even where they have not been “given

the title of ‘minister.’” 140 S. Ct. at 2055 (majority op.). Amici

use the term “ministerial exception” as a shorthand, with the understanding that it applies to employees of religious institutions

other than formal ministers.

3

from suit. That result undermines the ministerial exception’s central purpose of preserving “[t]he independence of religious institutions” and avoiding “judicial entanglement in religious issues.” Our Lady of

Guadalupe, 140 S. Ct. at 2060, 2069. The appealability of orders rejecting the ministerial exception is thus

a question of immense constitutional significance that

recurs each time the exception is denied.

To avoid making denial of the ministerial exception effectively unreviewable, this Court should grant

certiorari and hold that the ministerial exception is an

immunity from suit similar to immunities for government officials, and that denials of the exception thus

are immediately appealable. The Court need not

chart new territory to reach that conclusion. Like official immunities, the ministerial exception implements a structural constitutional limitation rooted in

constitutional text and history, the common law, and

pragmatic concerns regarding the risk of judicial entanglement. And the need for immediate appellate review is even stronger for the ministerial exception

than for many official immunities, because it implements the Religion Clauses’ express protections from

government entanglement in matters of religion.

The Court should thus grant certiorari to resolve

growing disagreement regarding the nature of the

ministerial exception—an issue “of ‘exceptional importance’” that “can and should be reviewed by” this

Court. Belya v. Kapral, 59 F.4th 570, 573 (2d Cir.

2023) (Cabranes, J., dissenting from denial of rehearing en banc); see Pet. 14–30; Tucker v. Faith Bible

Chapel Int’l, 53 F.4th 620, 627–29 (10th Cir. 2022)

(Bacharach, J., dissenting from denial of rehearing en

banc); Belya, 59 F.4th at 578–79 (Park, J., dissenting

from denial of rehearing en banc).

4

ARGUMENT

I.

THE AVAILABILITY OF INTERLOCUTORY

APPEALS FOR ORDERS DECLINING TO APPLY

THE MINISTERIAL EXCEPTION IS A QUESTION

OF IMMENSE IMPORTANCE THAT WARRANTS

REVIEW.

This case raises the question whether the ministerial exception is an immunity from suit such that

interlocutory appellate review is available for orders

declining to apply that immunity. That issue implicates the core nature of the ministerial exception and

recurs each time courts decline to apply the exception

to religious organizations. The Court should grant

certiorari to resolve this important question.

The ministerial exception flows from both of the

First Amendment’s Religion Clauses. “By imposing

an unwanted minister” on a religious institution

through employment-discrimination laws, “the state

infringes the Free Exercise Clause, which protects a

religious group’s right to shape its own faith and mission through its appointments.” Hosanna-Tabor, 565

U.S. at 188. Similarly, “[a]ccording the state the

power to determine which individuals will minister to

the faithful also violates the Establishment Clause”

by impermissibly allowing “government involvement

in such ecclesiastical decisions.” Id. at 188–89. Because the appointment of ministers is an inherently

religious decision, the ministerial exception is necessary to prevent “intrusion” into the “independence of

religious institutions,” Our Lady of Guadalupe, 140 S.

Ct. at 2060, and avoid “excessive government entanglement with religion” and “the danger of chilling religious activity,” Corp. of Presiding Bishop of Church

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

5

327, 344 (1987) (Brennan, J., concurring in the judgment); accord Douglas Laycock, Church Autonomy Revisited, 7 Geo. J. L. & Pub. Pol’y 253, 262 (2009) (imposing unwanted religious leaders is both “a Free Exercise Clause problem” and “an Establishment Clause

problem”).

Failing to permit interlocutory appeal when a

trial court declines to apply the ministerial exception

directly undermines the exception’s purpose. Hosanna-Tabor explained that even the act of “inquiring

into whether the [religious institution] had followed

its own procedures” is sufficiently intrusive to be unconstitutional. 565 U.S. at 187; see also id. at 205–06

(Alito, J., concurring) (“the mere adjudication of . . .

questions [about church doctrine] would pose grave

problems for religious autonomy”). The Religion

Clauses limit “not only the conclusions that may be

reached” in a dispute over church governance and doctrine, but also “the very process of inquiry leading to

findings and conclusions.” NLRB v. Cath. Bishop of

Chi., 440 U.S. 490, 502 (1979). Absent an interlocutory appeal in cases where a trial court has incorrectly

rejected application of the ministerial exception, protracted litigation would divert significant resources

from the religious institution’s core functions and intrude on its autonomy over “internal management decisions”—outcomes that “[t]he First Amendment outlaws.” Our Lady of Guadalupe, 140 S. Ct. at 2060.

Subjecting religious institutions to the legal process absent immediate appeal would thus “create the

danger of chilling religious activity,” Amos, 483 U.S.

at 344 (Brennan, J., concurring in the judgment), and

could even cause religious institutions to second-guess

employment decisions they would otherwise make

with regard to “wayward minister[s]” who are directly

6

“contradict[ing] the church’s tenets,” Our Lady of

Guadalupe, 140 S. Ct. at 2060–61. And because ministerial-exception cases virtually always involve matters of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required

of them,” permitting litigation to proceed without interlocutory appellate review will inevitably invite civil

courts to decide issues that lie “at the core of ecclesiastical concern” where civil courts exercise “no jurisdiction.” Serbian E. Orthodox Diocese for U.S. of Am.

& Canada v. Milivojevich, 426 U.S. 696, 713–14, 717

(1976).

Failing to permit interlocutory review of decisions

declining to apply the ministerial exception thus

would immediately produce the injuries that the exception guards against and make the denial effectively unreviewable on appeal. Put differently, “after

final judgment, the harm from judicial interference in

church governance will be complete,” because even a

reversal cannot undo the original, improper intrusion.

Belya, 59 F.4th at 578 (Park, J., dissenting from denial of rehearing en banc). This Court should grant

certiorari to decide whether these significant harms

are justified in light of the nature and purpose of the

ministerial exception.

II. THE COURT HAS ALREADY LAID THE

DOCTRINAL FOUNDATION NECESSARY TO HOLD

THAT DENIAL OF THE MINISTERIAL EXCEPTION

IS SUBJECT TO INTERLOCUTORY APPELLATE

REVIEW.

Granting review will not lead the Court into unfamiliar territory; existing precedent shows that interlocutory review should be available to vindicate the

ministerial exception. The Court has previously held

7

that denials of official immunity are subject to immediate appellate review. A fortiori, the same result is

warranted here: The ministerial exception is properly

characterized as an immunity from suit that rests on

foundations at least as compelling as official immunities. Thus, courts should resolve the ministerial exception early in litigation just as they do for official

immunities—including through interlocutory appeals.

A. Under Existing Precedent,

Interlocutory Appeal Is Available to

Vindicate Official Immunities.

When determining whether a governmental official is entitled to immunity from suit, this Court has

said it is “guided by the Constitution,” “history,” “common law,” and “concerns of public policy, especially as

illuminated by our history and the structure of our

government.” Nixon v. Fitzgerald, 457 U.S. 731, 747–

48 (1982). The Court has relied on such considerations in fashioning an absolute immunity from suit for

“officials whose special functions or constitutional status requires complete protection from suit.” Harlow

v. Fitzgerald, 457 U.S. 800, 807 (1982).

For example, the Court has held that the Constitution’s Speech or Debate Clause—which provides

that, “for any Speech or Debate in either House” of

Congress, a legislator “shall not be questioned in any

other Place,” U.S. Const. art. I, § 6, cl. 1—“is an absolute bar to interference.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975). The Clause embodies a “privilege of legislators to be free from arrest

or civil process for what they do or say in legislative

proceedings” that dates back to the sixteenth century.

Tenney v. Brandhove, 341 U.S. 367, 372 (1951). That

privilege “would be of little value if [legislators] could

8

be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or

to the hazard of a judgment against them based upon

a jury’s speculation as to motives.” Id. at 377. And a

lawsuit would “creat[e] a distraction and forc[e] Members [of Congress] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503.

The Court has cited similar constitutional, historical, and pragmatic reasons in granting other officials

absolute immunity. The Court has held, for example,

that the President “is entitled to absolute immunity

from damages liability predicated on his official acts”

as a “functio[n]” of his “office.” Nixon, 457 U.S. at 749.

The Court reasoned that this principle was “rooted in

the constitutional tradition of the separation of powers and supported by our history.” Ibid. Judges similarly enjoy immunity “for acts done . . . in the exercise

of their judicial functions,” a principle that has “a deep

root in the common law.” Bradley v. Fisher, 80 U.S.

(13 Wall.) 335, 347 (1871); accord Stump v. Sparkman, 435 U.S. 349, 362–63 (1978). The Court expressed concern that “[i]mposing such a burden on

judges would contribute not to principled and fearless

decisionmaking but to intimidation.” Pierson v. Ray,

386 U.S. 547, 554 (1967). Prosecutors also enjoy a

“common-law immunity . . . based upon the same considerations that underlie the common-law immunit[y]

of judges.” Imbler v. Pachtman, 424 U.S. 409, 422–23

(1976). According to the Court, they receive an immunity from civil suits regarding official actions because of the “concern that harassment by unfounded

litigation would cause a deflection of the prosecutor’s

energies from his public duties,” raising “the possibil-

9

ity that he would shade his decisions instead of exercising the independence of judgment required by his

public trust.” Id. at 423.

Officials who do not receive absolute immunity receive qualified immunity under this Court’s precedents, which “protects government officials ‘from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow, 457 U.S. at 818). The Court

has asserted that this immunity is justified in light of,

inter alia, “social costs[,] includ[ing] the expenses of

litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens

from acceptance of public office,” Harlow, 457 U.S. at

814, and on courts’ relative inability to competently

“second-gues[s]” certain official actions, White v.

Pauly, 580 U.S. 73, 78 (2017) (per curiam).

All of these official immunities have been held to

be “immunit[ies] from suit,” not “mere defense[s] to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Immunities generally give rise to “an entitlement not

to stand trial or face the other burdens of litigation,

conditioned on the resolution” of the question whether

the exception applies. Ibid. This entitlement is “effectively lost if a case is erroneously permitted to go to

trial.” Ibid. This Court has thus “repeatedly . . .

stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson, 555 U.S. at 232 (quoting Hunter v. Bryant, 502

U.S. 224, 227 (1991) (per curiam)). Courts must be

“alert” to prevent harassing lawsuits, including by

“quickly terminat[ing]” lawsuits at the motion-to-dismiss or summary-judgment stage when presented

10

with a valid claim of immunity. Harlow, 457 U.S. at

808 (citation omitted).

Consistent with these principles, this Court has

also recognized that immunity decisions are subject to

interlocutory appellate review. Beginning with Abney

v. United States, 431 U.S. 651 (1977)—a case involving immunity under the Double Jeopardy Clause—

this Court has recognized that “the denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor’s entitlement not to

have to answer for his conduct in a civil damages action.” Mitchell, 472 U.S. at 525; see, e.g., Nixon, 457

U.S. at 742–43 (presidential immunity); Helstoski v.

Meanor, 442 U.S. 500, 507 (1979) (legislative immunity under the Speech or Debate Clause). The same is

true for all qualified immunity appeals that turn on

issues of law. Mitchell, 472 U.S. at 530.

Denials of official immunities are immediately appealable because they satisfy the collateral-order doctrine established in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949). See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995) (interlocutory appeals permitted from collateral orders “that are

conclusive, that resolve important questions separate

from the merits, and that are effectively unreviewable

on appeal from the final judgment in the underlying

action”). In particular, these immunities have been

deemed to serve as “an entitlement not to stand trial

under certain circumstances,” Mitchell, 472 U.S. at

525, based on a “substantial public interest” in preserving a “value of a high order”—here, “honoring the

separation of powers, preserving the efficiency of government and the initiative of its officials, respecting a

11

State’s dignitary interest, and mitigating the government’s advantage over the individual,” Will v. Hallock, 546 U.S. 345, 352–53 (2006).

B. In Light of the Court’s OfficialImmunity Precedents, Interlocutory

Appeal Should Be Available to

Vindicate the Ministerial Exception.

The Court’s precedents on official immunity

strengthen the case for certiorari because they provide

ample authority for the Court to resolve the questions

presented. The ministerial exception implements a

structural limitation rooted in constitutional text, history, and the common law—factors this Court has

looked to in recognizing official immunities. And just

as the Court’s official-immunity cases have cited pragmatic concerns regarding the risk of undue judicial interference with the acts of officials in other branches

of government, the ministerial exception is designed

to immunize constitutionally protected religious decisions from judicial intrusion. Because the justifications for the ministerial exception have comparable

foundations and serve similar purposes to those previously cited by the Court in the official-immunity

context, the ministerial exception should receive at

least the same degree of procedural protections—including the availability of interlocutory appeal. Indeed, the case for vigorously protecting the ministerial

exception is considerably stronger than it is for common-law official immunities because, unlike those immunities, the ministerial exception is firmly grounded

in two constitutional clauses that expressly protect

liberty in matters of religion.

12

1. The Ministerial Exception Rests on

Foundations Similar to—and in

Some Instances Stronger Than—

Those Undergirding Official

Immunities.

a. Constitutional Text and Structure—The

ministerial exception is rooted in the text and structure of the Constitution.3 The ministerial exception is

a “necessary implication” of both Religion Clauses of

the First Amendment. Paul Horwitz, Act III of the

Ministerial Exception, 106 Nw. U. L. Rev. 973, 982,

992 (2012). This Court has recognized that “imposing

an unwanted minister” on a religious institution “infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission

through its appointments.” Hosanna-Tabor, 565 U.S.

at 188. And “the Establishment Clause, which prohibits government involvement in such ecclesiastical

decisions,” is likewise “violate[d]” if the government

“determine[s] which individuals will minister to the

faithful.” Id. at 188–89; accord Our Lady of Guadalupe, 140 S. Ct. at 2060 (“[A]ny attempt by government to dictate or even to influence [matters of faith

and doctrine] would constitute one of the central attributes of an establishment of religion.”). The ministerial exception thus protects the free-exercise rights

of the religious institution invoking the immunity and

also ensures that private lawsuits do not roll back the

guarantee of disestablishment, which includes “the

freedom of all religious institutions to choose their

3

While the First Amendment mentions only acts of Congress,

this Court has since made clear that it applies to improper judicial interference by state and federal courts. See, e.g., United

States v. Ballard, 322 U.S. 78, 86 (1944) (federal courts); Milivojevich, 426 U.S. at 698 (state courts).

13

clergy.” Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J.L. & Pub. Pol’y 821, 829

(2012).

In short, the ministerial exception is a deeply

rooted “structural limitation” that “categorically prohibits federal and state governments from becoming

involved in religious leadership disputes,” Conlon v.

InterVarsity Christian Fellowship, 777 F.3d 829, 836

(6th Cir. 2015), and therefore prohibits any “[s]tate interference” in the “sphere” of religious institutions’ internal governance, Our Lady of Guadalupe, 140 S. Ct.

at 2060; see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 94 (1980) (arguing

that the Religion Clauses provide a “structural or separation of powers function”). The exception thus reflects the foundational “limit[s] [on] the role of civil

courts in the resolution of religious controversies” that

prevent courts from becoming “entangled in essentially religious controversies.” Milivojevich, 426 U.S.

at 709–10. This Court’s instructions in Hosanna-Tabor left no room for doubt on these points: “it is impermissible for the government to contradict a church’s

determination of who can act as its ministers,” because “the authority” to make such a “strictly ecclesiastical” decision “is the church’s alone.” 565 U.S. at

185, 194–95 (citation omitted); accord Our Lady of

Guadalupe, 140 S. Ct. at 2069 (noting that allowing

courts to decide questions of faith and doctrine “would

risk judicial entanglement in religious issues”); Helen

M. Alvaré, Church Autonomy After Our Lady of Guadalupe School, 25 Tex. Rev. L. & Pols. 319, 325–26

(2021) (“courts are constitutionally incompetent” to

resolve internal disputes over church operations and

religious beliefs).

14

This structural view of the ministerial exception

finds support dating back to the work of John Locke,

which was an “indispensable part of the intellectual

backdrop” for the founding generation. Michael W.

McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.

1409, 1431 (1990); see also Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U.

L. Rev. 346, 354 (2002) (Locke’s ideas “formed the

basic theoretical ground for the separation of church

and state in America”). In Locke’s view, “the whole

jurisdiction of the magistrate reaches only to . . . civil

concernments,” and “all civil power, right, and dominion, is bounded and confined to . . . promoting these

things,” such that “it neither can nor ought in any

manner to be extended to the salvation of souls.” John

Locke, A Letter Concerning Toleration (1689), in 5 The

Founders’ Constitution 52, 52 (Philip B. Kurland &

Ralph Lerner eds., 1987). As Locke recognized, the

“joining together of several members into [a] churchsociety” is “absolutely free and spontaneous” and thus

the church has absolute authority in adopting rules

for “admitting and excluding members.” Id. at 53–54.

That absolute authority regarding membership, a fortiori, encompasses the ability to appoint ministers and

to establish “distinction of officers.” Id. at 53.

Founding-era sources confirm that civil authorities in this country have long been understood to lack

authority to intrude into internal religious matters.

Early American leaders “embraced the idea of a constitutionalized distinction between civil and religious

authorities” and a resulting “zone of autonomy in

which churches and religious schools could freely select and remove their ministers and teachers.” Richard W. Garnett, Hosanna-Tabor, Religious Freedom,

and Constitutional Structure, 2011–12 Cato Sup. Ct.

15

Rev. 307, 313. For example, James Madison—“the

leading architect of the religion clauses of the First

Amendment,” Hosanna-Tabor, 565 U.S. at 184 (citations omitted)—publicly rejected the idea that “the

Civil Magistrate is a competent Judge of Religious

Truth,” arguing instead that “Religion” was “exempt

from the authority” both of “Society at large” and “that

of the Legislative Body.” James Madison, Memorial

and Remonstrance Against Religious Assessments

(June 20, 1785), in 5 The Founder’s Constitution 82,

82–83. As Madison later explained, “[t]he ‘scrupulous

policy of the Constitution in guarding against a political interference with religious affairs’ . . . prevent[s]

the Government from rendering an opinion on the ‘selection of ecclesiastical individuals.’” Hosanna-Tabor,

565 U.S. at 184 (quoting Letter from James Madison

to Bishop Carroll (Nov. 20, 1806), reprinted in 20 Records of the American Catholic Historical Society 63

(1909)). Any attempt by the state to control “the election and removal of [a] Minister,” Madison believed,

thus “exceeds the rightful authority to which Governments are limited, by the essential distinction between civil and religious functions.” Id. at 184–85

(emphasis omitted) (quoting 22 Annals of Cong. 982–

83 (1811)).

b. Common Law and History—The ministerial

exception also has deep roots in the common law and

history. This Court’s first case to address the religious

autonomy doctrine (of which the ministerial exception

is a subset) did not rely on the Religion Clauses. Watson v. Jones involved a dispute over slavery between

two factions of a Presbyterian church that had split

into “distinct bodies,” each claiming to be the real

“church.” 80 U.S. (13 Wall.) 679, 681 (1872). The

highest governing body of the Presbyterian Church

16

determined that the anti-slavery faction was the authorized church. Id. at 727.

This Court refused to disturb that ruling, explaining that “a matter which concerns theological controversy, church discipline, ecclesiastical government, or

the conformity of the members of the church to the

standard of morals required of them” is “a matter over

which the civil courts exercise no jurisdiction.” Watson, 80 U.S. (13 Wall.) at 733. By “inquir[ing] into”

such matters, the “civil courts” “would deprive [religious] bodies of the right of construing their own

church laws.” Ibid. Thus, based on “a broad and

sound view of the relations of church and state under

our system of laws”—rather than any particular provision of the Religion Clauses or any other constitutional text—the Court held “that, whenever the questions of discipline, or of faith, or ecclesiastical rule,

custom, or law have been decided by the highest of

these church judicatories to which the matter has

been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Id. at 727.

c. Practical Concerns—The ministerial exception also reflects practical concerns similar to those

the Court has invoked for other immunity doctrines.

One fundamental concern is the limits of judicial

authority and competence. “[T]he judicial process is

singularly ill equipped to resolve” issues of religious

doctrine, which are “not within the judicial function

and judicial competence.” Thomas v. Rev. Bd. of Ind.

Emp. Sec. Div., 450 U.S. 707, 715–16 (1981). That is

not to say that courts and juries lack “technical or intellectual capacity.” Thomas C. Berg, Kimberlee

Wood Colby, Carl H. Esbeck & Richard W. Garnett,

Religious Freedom, Church-State Separation, and the

17

Ministerial Exception, 106 Nw. U. L. Rev. Colloquy

175, 176 (2011). Rather, the issue is the costs of imposing liability for religious decisions and the very

high risk of error in judicial (or jury) evaluation of

those decisions. “Religious teachings cover the gamut

from moral conduct to metaphysical truth.” HosannaTabor, 565 U.S. at 201 (Alito, J., concurring). As a

result, “matters of faith” may not be strictly “rational

or measurable by objective criteria” of the sort that

courts and juries are used to applying. Milivojevich,

426 U.S. at 714–15. And “[c]ivil judges obviously do

not have the competence of ecclesiastical tribunals in

applying the ‘law’ that governs ecclesiastical disputes.” Id. at 714 n.8; see also Thomas, 450 U.S. at

716 (“Courts are not arbiters of scriptural interpretation.”).

That is especially true in the context of a church’s

choice of a minister. To pass judgment on a religious

institution’s selection of its ministers would require a

“civil factfinder [to] si[t] 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).

Religious leadership decisions may be made by reference to criteria that civil tribunals are “ill-equipped”

to second-guess—consider, for example, the Biblical

accounts of “a stammering Moses [being] chosen to

lead the people, and a scrawny David to slay a giant”

due to their faith. Fratello v. Archdiocese of N.Y., 863

F.3d 190, 203 (2d Cir. 2017); accord Tomic v. Cath. Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006)

(observing that disputes concerning ministers present

“issue[s] that [courts] cannot resolve intelligently”);

Douglas Laycock, Hosanna-Tabor and the Ministerial

Exception, 35 Harv. J. L. & Pub. Pol’y 839, 850 (2012)

(judges and juries “cannot know what makes a good

18

minister in each of the enormously diverse array of religions in the United States”).

Moreover, even a brief inquiry into church governance or doctrine can chill the free exercise of religion.

“If civil courts undertake to resolve such controversies . . . , the hazards are ever present of inhibiting the

free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.” Presbyterian Church in U.S. v. Mary

Elizabeth Blue Hull Mem’l Presbyterian Church, 393

U.S. 440, 449 (1969). Religious organizations face a

“significant burden” if made to “predict which of

[their] activities a secular court will consider religious.” Amos, 483 U.S. at 336. Beyond any actual

penalties imposed by the courts, the “[f]ear of potential liability” has a profound chilling effect on “the way

an organization carrie[s] out . . . its religious mission.”

Ibid. That fear is compounded by the possibility that

a religious institution could incur hundreds of thousands of dollars in attorneys’ fees without any possibility of reimbursement even if successful on the merits, while facing the threat of paying the plaintiff’s attorneys’ fees if it loses. That chilling effect is one of

the “dangers that the First Amendment was designed

to guard against,” making it essential to protect “religious organizations[’] autonomy in matters of internal

governance.” Hosanna-Tabor, 565 U.S. at 196–97

(Thomas, J., concurring).

2. Decisions Denying the Ministerial

Exception Warrant Interlocutory

Review.

Denials of the ministerial exception are fit for interlocutory appeal under the collateral order doctrine

for the same reasons this Court has recognized for de-

19

nials of official immunities. Accordingly, the Court already has the doctrinal tools necessary to resolve the

important issues in this case.

Most importantly, the ministerial exception—like

official immunities—serves as an “entitlement not to

stand trial under certain circumstances.” Mitchell,

472 U.S. at 525; accord Christopher C. Lund, Free Exercise Reconceived: The Logic and Limits of HosannaTabor, 108 Nw. U. L. Rev. 1183, 1191 (2014) (ministerial exception is a “right not to face litigation over the

choice of one’s clergy,” not just a “defense to liability”).

As explained, the very purpose of the ministerial exception is to prevent excessive judicial entanglement

with religion and to preserve the independence of religious institutions protected by the First Amendment’s Religion Clauses. See Hosanna-Tabor, 565

U.S. at 188–89; supra at 4–5.

Absent early enforcement of the ministerial exception, including through appellate review when necessary, a religious institution suffers the very harm the

ministerial exception aims to prevent—facing secular

scrutiny of its selection of ministers—by the time the

case goes to trial and final judgment. At that point,

the court of appeals cannot put the cat back in the bag;

“the district court’s decision is effectively unreviewable,” Mitchell, 472 U.S. at 527, because it has already

denied the religious institution core aspects of the protections intended to be afforded by the ministerial exception. As with the official immunities this Court

has already recognized, the ministerial exception is

“effectively lost if a case is erroneously permitted to go

to trial,” id. at 526, because the costs, burdens, and

intrusions of the civil litigation process will already

have deprived the religious institution of its right to

be free from government-compelled interference with

20

its ecclesiastical autonomy and will have produced the

very chilling of religious activity and excessive entanglement that the ministerial exception is intended to

prevent. And as with official immunities, the only

way to give full effect to the ministerial exception is to

determine its application “at the earliest possible

stage in litigation” through a district-court ruling that

is subject to interlocutory appellate review. Hunter,

502 U.S. at 227–28 (“Immunity ordinarily should be

decided by the court long before trial.”).

One factor this Court has cited in holding that decisions denying official immunity are immediately appealable is that “substantial social costs” like “harassing litigation” may “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483

U.S. 635, 638 (1987). The same is true for the ministerial exception: Litigation and the “burdens of suit”

risk violating the First Amendment’s bar on judicial

meddling in the church’s “internal management decisions that are essential to the institution’s central

mission.” Our Lady of Guadalupe, 140 S. Ct. at 2060.

Indeed, “[f]orcing the parties through years of expensive litigation, where churches may weary of the diversion of resources away from mission, is precisely

the kind of equitable consideration, coupled with the

importance of the threshold constitutional question,

that warrants an immediate appeal.” Mark E.

Chopko & Marissa Parker, Still a Threshold Question:

Refining the Ministerial Exception Post-Hosanna-Tabor, 10 First Amendment L. Rev. 233, 294 (2012) (footnote omitted).

Practically speaking, the ministerial exception’s

nature as a protection against standing trial means

that it should be granted whenever a court can determine that the immunity applies as a matter of law

21

based on the allegations in the complaint. This is fully

consistent with Hosanna-Tabor’s statement that, as a

procedural matter, the ministerial exception “operates as an affirmative defense” rather than “a jurisdictional bar.” 565 U.S. at 195 n.4. The same is true

of most official immunities, which typically are not jurisdictional, but still must be applied as “at the earliest possible stage in litigation.” Pearson, 555 U.S. at

231–32 (citation omitted); see Tucker, 53 F.4th at 626

(Bacharach, J., dissenting from denial of rehearing en

banc) (“[E]ven when affirmative defenses aren’t jurisdictional in district court, they may trigger the collateral-order doctrine.”). And in cases where the ministerial exception’s applicability cannot be resolved at

the pleading stage, discovery should initially be limited only to the facts necessary to resolving that question so that the exception’s applicability can be immediately determined through a motion for summary

judgment focused on that issue.4

Whether decided on a motion to dismiss or a limited motion for summary judgment, denial of the ministerial exception should be “immediate[ly] appealab[le],” just as a denial of official immunities is

immediately appealable. Mitchell, 472 U.S. at 526–

27; see also Behrens v. Pelletier, 516 U.S. 299, 309

(1996) (permitting successive appeals following denials of motions to dismiss and for summary judgment

based on qualified immunity). Without interlocutory

review—which often could “readily” dispose of the

question whether the ministerial exception applies,

Pearson, 555 U.S. at 237—the ministerial exception

4

The district court took a similar approach below, but the

Tenth Circuit erroneously held that it lacked jurisdiction over

the resulting interlocutory appeal. See Tucker v. Faith Bible

Chapel Int’l, 36 F.4th 1021, 1027 (10th Cir. 2022).

22

may be erroneously denied and even put to the jury at

a trial. In fact, this is exactly what the Tenth Circuit

predicted would “often” happen, Tucker, 36 F.4th at

1031 n.4, rendering the exception and immunity it

provides “effectively lost,” Mitchell, 472 U.S. at 526.

If anything, there are even stronger reasons to

permit immediate appellate review in ministerial-exception cases: Not only will the right at issue “have

been lost, probably irreparably,” by the time of final

judgment, Cohen, 337 U.S. at 546, but “[t]he loss of

First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury,” Roman Cath. Diocese of Brooklyn v. Cuomo, 141

S. Ct. 63, 67 (2020) (per curiam) (citation omitted).

See Belya, 59 F.4th at 578–79 (Park, J., dissenting

from denial of rehearing en banc) (“Denial of a church

autonomy defense should be an appealable collateral

order in light of its strong resemblance to qualified immunity.”). Certainly there is no basis for treating a

First Amendment right as “fundamental” as the “right

to religious liberty” less favorably than official immunities. Fulton v. City of Philadelphia, 141 S. Ct.

1868, 1901 (2021) (Alito, J., concurring in the judgment).

All of this follows from the logic of the Court’s existing precedents. Already, multiple courts of appeals

have rightly recognized the similarity between official

immunities and the ministerial exception. See Belya,

59 F.4th at 579 (Park, J., dissenting from denial of rehearing en banc) (collecting cases). And as petitioners

explain, Pet. 18; see id. at 15–23, many lower courts

have also acknowledged that the ministerial exception

shields religious organizations “from the travails of a

trial and not just from an adverse judgment.” McCar-

23

thy v. Fuller, 714 F.3d 971, 975 (7th Cir. 2013) (Posner, J.). This Court should grant certiorari to confirm

that the ministerial exception is an immunity from

suit, the denial of which is subject to interlocutory appellate review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

THOMAS G. HUNGAR

JUN NAM

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

RUSSELL BALIKIAN

333 South Grand Avenue

ANNA CASEY

Los Angeles, CA 90071

ANDREW D. FERGUSON

(213) 229-7000

LAVI M. BEN DOR*

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

thungar@gibsondunn.com

Counsel for Amici Curiae

*Admitted only in New York and Pennsylvania; practicing under the

supervision of principals of the firm.

March 10, 2023

APPENDIX

i

TABLE OF CONTENTS

List of Amici Curiae ............................................ App.1

App.1

LIST OF AMICI CURIAE

Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St.

Thomas School of Law (Minnesota). He is a co-author

of Religion and the Constitution (4th ed. 2016), and he

has published multiple articles on the ministerial exception and related topics, including Credentials Not

Required: Why an Employee’s Significant Religious

Functions Should Suffice to Trigger the Ministerial

Exception, 20 Federalist Soc’y Rev. 182 (2020); Religious Freedom, Church-State Separation, and the

Ministerial Exception, 106 Nw. U. L. Rev. Colloquy

(2011); and The Voluntary Principle and Church Autonomy, Then and Now, 2004 B.Y.U. L. Rev. 1593.

Elizabeth Clark is the Associate Director for the

International Center for Law and Religion Studies at

Brigham Young University’s J. Reuben Clark Law

School. Her scholarship on religious freedom in the

United States and around the world includes Presiding Bishop of the Church of Jesus Christ of Latter-day

Saints v. Amos, 483 U.S. 327 (1987): Addressing Tensions Between the Free Exercise and Establishment

Clauses, in Law and Religion: Cases in Context (Leslie

C. Griffin ed., 2010), and The Virginia Founders and

the Birth of Religious Liberty, in Lectures on Religion

and the Founding of the American Republic (John W.

Welch ed., 2003).

Robert F. Cochran, Jr. is the Louis D. Brandeis

Professor of Law Emeritus at Pepperdine University

School of Law. He is the author of Faith and Law:

How Religious Traditions from Calvinism to Islam

View American Law (2007), and has published more

than a dozen works on the intersection of religious values and legal doctrine, including Church Freedom and

App.2

Accountability in Sexual Exploitation Cases: The Possibility of Both Through Limited Strict Liability, 21 J.

Contemp. Legal Issues 427 (2013), and The Competing

Claims of Law and Religion: Who Should Influence

Whom?, 39 Pepperdine L. Rev. 1051 (2013).

Richard W. Garnett is the Paul J. Schierl/Fort

Howard Corporation Professor of Law, Concurrent

Professor of Political Science, and Director of the Program on Church, State & Society at Notre Dame Law

School. Among his dozens of works on the Religion

Clauses are Hosanna-Tabor, Religious Freedom, and

Constitutional Structure, 2011–12 Cato Sup. Ct. Rev.

307; Religious Freedom, Church-State Separation,

and the Ministerial Exception, 106 Nw. U. L. Rev. Colloquy 175 (2011); and Religious Freedom, Church Autonomy, and Constitutionalism, 57 Drake L. Rev. 901

(2009).

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law and Professor of Religious

Studies at the University of Virginia School of Law.

His writings on religious freedom and the Religion

Clauses have been republished as the five-volume Religious Liberty (2010–2018). His articles on the ministerial exception and church autonomy include Hosanna-Tabor and the Ministerial Exception, 35 Harv.

J. L. & Pub. Pol’y 839 (2012); Church Autonomy Revisited, 7 Geo. J. L. & Pub. Pol’y 253 (2009); and Towards a General Theory of the Religion Clauses: The

Case of Church Labor Relations and the Right to

Church Autonomy, 81 Colum. L. Rev. 1373 (1981). He

argued before the Court on behalf of the petitioner in

Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, 565 U.S. 171 (2012).

Christopher Lund is the Associate Dean for Research and Faculty Development and Professor of

App.3

Law at Wayne State University Law School. He is a

co-author of Religion and the Constitution (4th ed.

2016), and his articles on the ministerial exception

and church autonomy doctrines include In Defense of

the Ministerial Exception, 90 N.C. L. Rev. 1 (2011),

and Free Exercise Reconceived: The Logic and Limits

of Hosanna-Tabor, 108 Nw. U. L. Rev. 1183 (2014).

Michael P. Moreland is the University Professor of Law and Religion and the Director of the Eleanor H. McCullen Center for Law, Religion and Public

Policy at Villanova University’s Charles Widger

School of Law. He has written several works on the

church autonomy doctrine, including Institutional

Conscience: From Free Exercise to Freedom of Association and Church Autonomy, in The Conscience of the

Institution (Helen M. Alvaré ed., 2014), and Institutional Conscience and Moral Dilemmas: Why “Freedom of Conscience” Is Bad for “Church Autonomy,” 7

Geo. J. L. & Pub. Pol’y 217 (2009).

Michael Stokes Paulsen is the Distinguished

University Chair & Professor of Law at the University

of Saint Thomas School of Law (Minnesota). He is the

co-author (with Luke Paulsen) of The Constitution: An

Introduction (2015). His scholarly articles on religious liberty include Is Religious Freedom Irrational?,

112 Mich. L. Rev. 1043 (2014), The Priority of God: A

Theory of Religious Liberty, 39 Pepperdine L. Rev.

1159 (2013), A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249

(1995), and Lemon is Dead, 43 Case Western Reserve

L. Rev. 795 (1993).

Robert J. Pushaw is the James Wilson Endowed

Professor of Law at Pepperdine University Caruso

School of Law. His scholarship on the structural pro-

App.4

visions of the Constitution and the powers of the federal courts includes The Inherent Powers of Federal

Courts and the Structural Constitution, 86 Iowa L.

Rev. 735 (2001), and Article III’s Case/Controversy

Distinction and the Dual Functions of Federal Courts,

69 Notre Dame L. Rev. 447 (1994).

David Arthur Skeel is the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Carey Law School. He is the author of True Paradox: How Christianity Makes Sense of Our Complex

World (2014), and his works on religion and the law

include Christianity and Bankruptcy, in Christianity

and Economic Regulation (Daniel A. Crane & Samuel

Gregg eds., 2021), and Christianity and the (Modest)

Rule of Law, 8 U. Pa. J. Const. L. 809 (2006).

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law and

the Editor-in-Chief of the Journal of Free Speech Law.

He is a co-founder of The Volokh Conspiracy, and his

works on religious liberty include Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L.

Rev. 431 (2014); Freedom of Speech, Religious Harassment Law, and Religious Accommodation Law, 33

Loy. U. Chi. L.J. 57 (2001); and A Common-Law Model

for Religious Exemptions, 46 UCLA Law Review 1465

(1999).