Amicus Curiae Brief — Faith Bible Chapel International, Petitioner v. Gregory Tucker
Supreme Court briefMar 10, 2023
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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 Courts of Appeals for the Tenth Circuit
BRIEF OF OKLAHOMA AND 20 OTHER STATES
AS AMICI CURIAE IN SUPPORT OF PETITIONER
GENTNER F. DRUMMOND
Oklahoma Attorney General
GARRY M. GASKINS, II
Solicitor General
ZACH WEST
Director of Special Litigation
Counsel of Record
OFFICE OF THE OKLAHOMA
ATTORNEY GENERAL
313 N.E. Twenty-First Street
Oklahoma City, OK 73105
(405) 521-3921
zach.west@oag.ok.gov
March 10, 2023
Counsel for Amici Curiae
Additional Counsel Listed on Inside Cover
STEVE MARSHALL
Attorney General
State of Alabama
TREG TAYLOR
Attorney General
State of Alaska
TIM GRIFFIN
Attorney General
State of Arkansas
CHRISTOPHER M. CARR
Attorney General
State of Georgia
RAÚL R. LABRADOR
Attorney General
State of Idaho
TODD ROKITA
Attorney General
State of Indiana
BRENNA BIRD
Attorney General
State of Iowa
KRIS KOBACH
Attorney General
State of Kansas
DANIEL CAMERON
JEFF LANDRY
Attorney General
Attorney General
Commonwealth of Kentucky State of Louisiana
LYNN FITCH
Attorney General
State of Mississippi
ANDREW BAILEY
Attorney General
State of Missouri
AUSTIN KNUDSEN
Attorney General
State of Montana
MIKE HILGERS
Attorney General
State of Nebraska
ALAN WILSON
Attorney General
State of South Carolina
JONATHAN SKRMETTI
Attorney General and Reporter
State of Tennessee
KEN PAXTON
Attorney General
State of Texas
SEAN D. REYES
Attorney General
State of Utah
JASON MIYARES
Attorney General
Commonwealth of Virginia
PATRICK MORRISEY
Attorney General
State of West Virginia
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF THE AMICI CURIAE ....................... 1
SUMMARY OF THE ARGUMENT ........................... 3
ARGUMENT ............................................................... 5
I.
THE TENTH CIRCUIT’S REFORMULATION OF
THE MINISTERIAL EXCEPTION AS “QUINTESSENTIALLY” A QUESTION FOR A JURY WAS
N OVEL , W RONG, AND W ILL L EAD TO
EXCESSIVE ENTANGLEMENT .............................. 5
II. IN DENYING AN APPEAL, THE PANEL FAILED
TO RECOGNIZE THE CONSTITUTION’S STRUCTURAL PROTECTION AGAINST INTERFERENCE
IN RELIGIOUS LEADERSHIP DISPUTES ............. 15
CONCLUSION.......................................................... 21
ii
TABLE OF AUTHORITIES
Page
TABLE OF AUTHORITIES
CASES
Alcazar v. Corp. of the Catholic Archbishop of
Seattle, 627 F.3d 1288 (9th Cir. 2010) ................ 9
Belya v. Kapral,
45 F.4th 621 (2d Cir. 2022) ..................... 2, 10, 11
Belya v. Kapral,
59 F.4th 570 (2d Cir. 2023) ............................... 10
Biel v. St. James Sch.,
971 F.3d 1005 (9th Cir. 2020) ............................. 7
Bryce v. Episcopal Church in the Diocese of
Colo., 289 F.3d 648 (10th Cir. 2002) ............. 8, 16
Cannata v. Catholic Diocese of Austin,
700 F.3d 169 (5th Cir. 2012) ............................... 9
Carson v. Makin,
142 S. Ct. 1987 (2022) ....................................... 14
Colo. Christian Univ. v. Weaver,
534 F.3d 1245 (10th Cir. 2008) ........................... 5
Conlon v. InterVarsity Christian Fellowship,
777 F.3d 829 (6th Cir. 2015) ......................... 8, 16
Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos,
483 U.S. 327 (1987) ........................................... 13
Demkovich v. St. Andrew the Apostle Parish,
3 F.4th 968 (7th Cir. 2021)................ 8, 17, 18, 20
Doe v. Roman Catholic Bishop of Springfield,
190 N.E.3d 1035 (Mass. 2022) .............................. 2
EEOC v. Catholic Univ. of Am.,
83 F.3d 455 (D.C. Cir. 1996) ............................. 14
iii
TABLE OF AUTHORITIES – Continued
Page
EEOC v. Hosanna-Tabor Evangelical
Lutheran Church, No. 07-14124, 2008 WL
5111861 (E.D. Mich. Dec. 3, 2008) ...................... 6
EEOC v. R.G. & G.R. Harris Funeral Homes,
884 F.3d 560 (6th Cir. 2018) ............................... 8
Fratello v. Archdiocese of N.Y.,
863 F.3d 190 (2d Cir. 2017) ................................. 8
Gordon College v. DeWeese-Boyd,
142 S. Ct. 952 (2022) ......................................... 11
Hosanna-Tabor Evangelical Lutheran Church
& Sch. v. EEOC, 565 U.S. 171 (2012)
........................................... 3, 5-7, 9-12, 14, 17, 19
Lee v. Sixth Mount Zion Baptist Church,
903 F.3d 113 (3d Cir. 2018) ................................. 8
Los Lobos Renewable Power, LLC v.
AmeriCulture, Inc.,
885 F.3d 659 (10th Cir. 2018) ........................... 19
McCarthy v. Fuller,
714 F.3d 971 (7th Cir. 2013) ....................... 10, 12
Missouri v. Jenkins,
515 U.S. 70 (1995) ............................................. 11
Morrissey-Berru v. Our Lady of Guadalupe
Sch., 817 F. App’x 497 (9th Cir. 2020) ................ 7
Morrissey-Berru v. Our Lady of Guadalupe
Sch., No. 2:16-cv-09353-SVW-AFM, 2017
WL 6527336 (C.D. Cal. Sept. 27, 2017) .............. 7
NLRB v. Catholic Bishop of Chi.,
440 U.S. 490 (1979) ....................................... 5, 16
iv
TABLE OF AUTHORITIES – Continued
Page
Our Lady of Guadalupe Sch. v. MorrisseyBerru, 140 S. Ct. 2049 (2020) ........... 5-7, 9, 10, 12
Penn v. N.Y. Methodist Hosp.,
884 F.3d 416 (2d Cir. 2018) ................................. 8
Petruska v. Gannon Univ.,
462 F.3d 294 (3d Cir. 2006) ............................... 17
Rayburn v. Gen. Conf. of Seventh-Day
Adventists, 772 F.2d 1164 (4th Cir. 1985) .. 17, 20
Serbian E. Orthodox Diocese for U.S. & Can. v.
Milivojevich, 426 U.S. 696 (1976) ..................... 14
Simon v. Saint Dominic Acad.,
No. 19-cv-21271, 2021 WL 6137512
(D.N.J. Dec. 29, 2021).......................................... 9
Skrzypczak v. Roman Catholic Diocese of
Tulsa, 611 F.3d 1238 (10th Cir. 2010) .... 8, 16, 17
Starkey v. Roman Catholic Archdiocese of
Indianapolis, 41 F.4th 931 (7th Cir. 2022)......... 8
Starkman v. Evans,
198 F.3d 173 (5th Cir. 1999) ............................... 8
Sterlinski v. Catholic Bishop of Chi.,
934 F.3d 568 (7th Cir. 2019) ............................... 8
United States v. Carver,
260 U.S. 482 (1923) ........................................... 11
United States v. City of Miami,
614 F.2d 1322 (5th Cir. 1980) ........................... 13
Werft v. Desert Sw. Annual Conf. of United
Methodist Church,
377 F.3d 1099 (9th Cir. 2004) ............................. 9
v
TABLE OF AUTHORITIES – Continued
Page
Yin v. Columbia Int’l Univ.,
335 F. Supp. 3d 803 (D.S.C. 2018) ...................... 8
Zakrzewska v. New Sch.,
574 F.3d 24 (2d Cir. 2009) ................................. 14
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I .................... 3-6, 8, 12, 16, 18, 19
JUDICIAL RULES
Sup. Ct. R. 37.2 ........................................................... 1
OTHER AUTHORITIES
Brief of Religious Liberty Scholars as Amici
Curiae in Support of Appellant,
Tucker v. Faith Bible Chapel Int’l,
(No. 20-1230), 2022 WL 2400414
(June 28, 2022) .................................................. 18
Ihsan Bagby,
Report 1 of the US Mosque Survey 2020:
Basic Characteristics of the American
Mosque, Inst. for Soc. Policy &
Understanding (June 2, 2020), https://
www.ispu.org/report-1-mosque-survey2020/224 ............................................................... 1
Oklahoma Baptists,
About, https://www.oklahomabaptists.org/
about/ ................................................................... 1
vi
TABLE OF AUTHORITIES – Continued
Page
Peter J. Smith & Robert W. Tuttle,
Civil Procedure and the Ministerial
Exception, 86 FORDHAM L. REV. 1847
(2018) ................................................................. 18
Texas Catholic Conf. of Bishops,
About, https://txcatholic.org/about/.................... 1
The Ass’n of Religion Data Archives,
State Membership Report (2020), https://
thearda.com/us-religion/census/
congregational-membership?y=2020&y2=
0&t=1&c=12......................................................... 1
The Church of Jesus Christ of Latter-Day
Saints, Facts and Statistics, https://
newsroom.churchofjesuschrist.org/factsand-statistics/state/utah ..................................... 1
1
INTEREST OF THE AMICI CURIAE1
Amici States are home to thousands of religious
organizations and millions of religious believers.
See, e.g., About, Oklahoma Baptists, https://www.
oklahomabaptists.org/about/ (nearly 1,800 Southern
Baptist churches exist in Oklahoma); Facts and
Statistics, The Church of Jesus Christ of Latter-Day
Saints, https://newsroom.churchofjesuschrist.org/factsand-statistics/state/utah (over 5,000 LDS congregations are located in Utah); About, Texas Catholic Conf.
of Bishops, https://txcatholic.org/about/ (over 1,000
Catholic parishes serve 8.5 million Catholics in Texas);
Ihsan Bagby, Report 1 of the US Mosque Survey 2020:
Basic Characteristics of the American Mosque, Inst.
for Soc. Policy & Understanding (June 2, 2020), https:
//www.ispu.org/report-1-mosque-survey-2020/224
(nearly 100 mosques can be found in Virginia); State
Membership Report, The Ass’n of Religion Data
Archives (2020), https://thearda.com/us-religion/census/
congregational-membership?y=2020&y2=0&t=1&c=12
(nearly 100 synagogues are located in Georgia).
These States have a compelling interest in protecting the constitutional rights of their citizens to select
religious leaders as they see fit. The States also have a
weighty interest in protecting their own court systems,
agencies, and departments from entanglement in the
internal affairs of religious groups. In holding that
(a) the ministerial exception merely protects against
1 Amici submit this brief pursuant to Sup. Ct. R. 37.2. Amici
provided the respective counsels of record timely notice of the
State of Oklahoma’s intent to file the brief.
2
liability, (b) is “quintessentially” a jury question, and
(c) is unappealable on an interlocutory basis, the
Tenth Circuit opinion below threatens these profound
interests, directly and indirectly.
Directly, the panel opinion is now the controlling
law for Amici States within the Tenth Circuit, like
Oklahoma, as well as the numerous religious adherents
and organizations within those States. Those religious
believers are now operating within a system that
exposes their leadership decisions to invasive discovery,
depositions, and jury trials—an undeniably chilling
proposition. Moreover, States within the Tenth Circuit
are on the hook for overseeing those processes, and
without relief will soon find themselves improperly
enmeshed and entangled with religious questions,
doctrine, and dogma.
Indirectly, the Tenth Circuit opinion has already
sparked, or at least laid the groundwork for, an
unfortunate new trend. In the short time since the
panel opinion was released, that is, at least two other
appellate courts have expressly embraced aspects of
its mistaken analysis. See Belya v. Kapral, 45 F.4th
621, 632-34 (2d Cir. 2022) (repeatedly citing the
Tenth Circuit’s decision below to support its holding
that a church autonomy question is not reviewable
on an interlocutory basis); Doe v. Roman Catholic
Bishop of Springfield, 190 N.E.3d 1035, 1044 (Mass.
2022) (quoting the panel below for the proposition that
the ministerial exception “does not immunize religious
employers from the burdens of litigation itself”). Thus,
the present decision not only creates circuit splits,
as Petitioner has detailed, but it is threatening the
constitutional boundaries of every State and the constitutional rights of their citizens.
3
SUMMARY OF THE ARGUMENT
A core aspect of religious freedom protected by
the First Amendment is a prohibition on governmental
intrusion into a religious organization’s selection or
rejection of ministerial leadership. The government
must tread extremely lightly in this area, as religious
adherents have the right “to decide for themselves, free
from state interference, matters of church government
as well as those of faith and doctrine.” Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565
U.S. 171, 186 (2012) (citation omitted). Critical here,
this Court has emphasized that the First Amendment’s
“ministerial exception bars . . . a suit” by a minister
“challenging her church’s decision to fire her.” Id. at
196 (emphasis added).
The petition for certiorari details—as dissenting
Judges Bacharach, Eid, and Tymkovich did below—
how the Tenth Circuit has now split with other courts
in several ways that will cause severe and sustained
entanglement between religious institutions and government, as well as infringement on the religious
liberty rights of countless individuals and organizations.
In the Tenth Circuit, juries will now be tasked with
analyzing significant religious questions, courts will
be forced to mediate discovery disputes probing religious doctrine and religious intent, and religious
adherents and organizations will have no immediate
recourse against a wayward trial court decision that
threatens to invade some of the most critical aspects
of religious practice—the choice of leadership. The
panel’s decision was a radical departure from existing
case law at the time and this Court’s precedent.
4
Again, the Tenth Circuit panel indicated that
ministerial status is a question of fact for the jury, that
the ministerial exception is a mere liability defense, and
that such questions are not immediately appealable.
These views are wrong.
First, ministerial status is not a factual question
that requires a jury to slog through religious beliefs,
doctrine, and structure. It is a legal question: does an
employee of a religious organization perform a religious
role protected by the First Amendment? The mere
prospect of jury examination of ministerial status would
impair the First Amendment rights of religious
adherents and their institutions, and it would cause
significant entanglement problems for Amici’s court
systems and enforcement agencies. Virtually any
employee can mimic what Respondent did below,
excising or downplaying (well after-the-fact) the undisputed religious words from his title and job duties
to obfuscate the central question: whether a religious
school’s “Chaplain” is a minister as a matter of law.
Second, the ministerial exception is not some
run-of-the-mill defense to liability. It is a structural
cornerstone and core First Amendment right to be
free from the government’s regulations in matters of
religious faith, doctrine, and governance. As courts
broadly recognize, that right is infringed as much by
judicial rooting through religious beliefs as by an
ultimate imposition of liability. In short, Amici’s citizens
should be free to choose religious ministers without fear
of government meddling, and Amici States shouldn’t
be required to meddle. Because the Tenth Circuit’s
opinion muddies First Amendment waters on jurisprudential questions of exceptional importance and
threatens the constitutional rights of countless religious
5
adherents and organizations, a grant of certiorari and
eventual reversal are necessary.
ARGUMENT
I.
THE TENTH CIRCUIT’S REFORMULATION OF THE
MINISTERIAL EXCEPTION AS “QUINTESSENTIALLY”
A QUESTION FOR A JURY WAS NOVEL, WRONG,
AND WILL LEAD TO EXCESSIVE ENTANGLEMENT.
“The values enshrined in the First Amendment
plainly rank high ‘in the scale of our national values.’”
NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 501
(1979). Relevant here, through the Free Exercise and
Establishment Clauses, the First Amendment forbids
“judicial entanglement in religious issues.” Our Lady
of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,
2069 (2020). This entanglement principle protects
“the right of churches and other religious institutions
to decide matters ‘of faith and doctrine’ without government intrusion.” Id. at 2060 (quoting Hosanna-Tabor,
565 U.S. at 186). As the Tenth Circuit once observed,
years before the errant decision below, “secondguessing” of “religious beliefs and practices” is supposed
to be verboten because governments have “neither
competence nor legitimacy” in those areas. Colo.
Christian Univ. v. Weaver, 534 F.3d 1245, 1261, 126566 (10th Cir. 2008).
One key aspect of religious autonomy protected
by the First Amendment is an institution’s “selection
and supervision” of religious ministers. Our Lady,
140 S. Ct. at 2055. This protection is part of religious
groups’ “independence in matters of faith and doctrine
6
and in closely linked matters of internal government.”
Id. at 2061. When an employee brings a discrimination
suit that could infringe on a faith-based institution’s
religious autonomy, courts must resolve whether that
employee is a religious minister within the First
Amendment’s scope. Because of predominant questions
of faith and doctrine, this Court has made it perfectly
clear: resolution of that question must be “sensitive”
and pay due deference to “[a] religious institution’s
explanation of the role of such employees in the life
of the religion.” Id. at 2066, 2069. Courts, that is, “must
take care to avoid resolving underlying controversies
over religious doctrine” and “practice.” Id. at 2063
n.10 (cleaned up). This Court has repeatedly warned
against “[d]eciding such questions” in a way that
“would risk judicial entanglement in religious issues.”
Id. at 2069.
Thus, in both Hosanna-Tabor and Our Lady,
this Court did not remand the respective cases for a
jury’s analysis, despite the disputes in both situations
being about this ultimate question of ministerial status.
In Hosanna-Tabor, this Court indicated that the
Sixth Circuit should have affirmed the district court’s
grant of summary judgment on the ministerial exception, 565 U.S. at 181, 190, 196, even though the district
court itself had at one point “highlight[ed] the existence of a factual dispute between the parties” relating
to that plaintiff’s ministerial status. EEOC v. HosannaTabor Evangelical Lutheran Church, No. 07-14124,
2008 WL 5111861, at *1 (E.D. Mich. Dec. 3, 2008).
Concurring, Justice Alito (joined by Justice Kagan)
wrote separately to point out that allowing “a civil
court—and perhaps a jury” “to engage in the pretext
inquiry that respondent and the Solicitor General
7
urge us to sanction would dangerously undermine the
religious autonomy that lower court case law has now
protected for nearly four decades.” Hosanna-Tabor,
565 U.S. at 205 (Alito, J., concurring) (emphasis added).
The “mere adjudication” of religious “questions would
pose grave problems for religious autonomy,” they
stressed, as it “would require calling witnesses to
testify about the importance and priority of the religious doctrine in question, with a civil factfinder
sitting in ultimate judgment of what the accused
church really believes, and how important that belief
is to the church’s overall mission.” Id. at 205-06
(Alito, J., concurring) (emphasis added).
Likewise, in Our Lady, this Court indicated that
the Ninth Circuit should have affirmed several district courts’ grants of summary judgment to defendants, 140 S. Ct. at 2058-60, 2066, 2069, even though
one district court in question had found that a factor
in the analysis weighed against “the ministerial
exception applying.” Morrissey-Berru v. Our Lady of
Guadalupe Sch., No. 2:16-cv-09353-SVW-AFM, 2017
WL 6527336, at *2 (C.D. Cal. Sept. 27, 2017). And
sure enough, on remand the Ninth Circuit promptly
affirmed the lower courts’ grants of summary judgment to the religious organizations being sued. See
Morrissey-Berru v. Our Lady of Guadalupe Sch., 817
F. App’x 497, 498 (9th Cir. 2020), and Biel v. St. James
Sch., 971 F.3d 1005 (9th Cir. 2020).
This Court did not remand for jury resolution in
Hosanna-Tabor and Our Lady for the simple reason
that ministerial status is, at its core, a legal question.
See App.134a (Bacharach, J., dissenting) (“Until now,
every federal or state appellate court to address the
issue has characterized ministerial status as a question
8
of law.”). It is no different, in other words, from
whether an institution qualifies as religious for First
Amendment purposes or other church autonomy
questions—each of which, the Tenth Circuit once
indicated, is “a question of law to be resolved at the
earliest possible stage of litigation.” Bryce v. Episcopal
Church in the Diocese of Colo., 289 F.3d 648, 654
(10th Cir. 2002) (citation omitted). Thus, courts have
universally resolved the question of ministerial status
themselves. See Skrzypczak v. Roman Catholic Diocese
of Tulsa, 611 F.3d 1238, 1244 (10th Cir. 2010) (upholding grant of summary judgment to defendant,
despite three affidavits purporting to show a factual
dispute); Conlon v. InterVarsity Christian Fellowship,
777 F.3d 829, 833 (6th Cir. 2015) (“whether the
exception attaches at all is a pure question of law”);
Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999)
(“The status of employees as ministers . . . remains a
legal conclusion for this court.”).
Moreover, courts have always resolved ministerial
status at summary judgment, if not earlier. E.g.,
Starkey v. Roman Catholic Archdiocese of Indianapolis,
41 F.4th 931 (7th Cir. 2022); Sterlinski v. Catholic
Bishop of Chi., 934 F.3d 568 (7th Cir. 2019); Penn v.
N.Y. Methodist Hosp., 884 F.3d 416 (2d Cir. 2018);
Lee v. Sixth Mount Zion Baptist Church, 903 F.3d 113
(3d Cir. 2018); EEOC v. R.G. & G.R. Harris Funeral
Homes, 884 F.3d 560 (6th Cir. 2018); Fratello v.
Archdiocese of N.Y., 863 F.3d 190 (2d Cir. 2017); Yin
v. Columbia Int’l Univ., 335 F. Supp. 3d 803 (D.S.C.
2018) (all resolving on summary judgment); see also,
e.g., Demkovich v. St. Andrew the Apostle Parish, 3
F.4th 968 (7th Cir. 2021) (en banc); Conlon, 777 F.3d
at 832; Cannata v. Catholic Diocese of Austin, 700 F.3d
9
169 (5th Cir. 2012); Alcazar v. Corp. of the Catholic
Archbishop of Seattle, 627 F.3d 1288 (9th Cir. 2010)
(en banc); Werft v. Desert Sw. Annual Conf. of United
Methodist Church, 377 F.3d 1099 (9th Cir. 2004);
Simon v. Saint Dominic Acad., No. 19-cv-21271, 2021
WL 6137512 (D.N.J. Dec. 29, 2021) (all resolving on
motions to dismiss).
The panel below blazed its own trail, however,
skipping past the numerous cases cited above. The
panel held, in a published opinion, and on the basis
of a practically non-existent factual dispute, that
whether Respondent was a minister “is quintessentially
a factual determination for the jury.” App.26a n.8
(emphasis added). According to the panel, a jury will
“often” “have to resolve the factual disputes and decide
whether an employee qualifies as a ‘minister . . . [,]’”
App.19a n.4 (emphasis added), even though such a
jury resolution cannot be found referenced in any
pre-Faith Bible court decision of which Amici are
aware. And the panel found no constitutional problem
with its unprecedented yet somehow “quintessential”
rule: “If a jury’s resolution of those facts indicates
that the employee is not a minister, then the Establishment Clause is not implicated.” App.52a.
The panel was wrong. Despite its expansive
rhetoric (i.e., “quintessentially” and “often”), it pointed
to no case where a jury had actually been tasked
with determining an individual’s status as a minister.
Instead, remarkably, it cited Our Lady and HosannaTabor, claiming that a jury decision “cannot be
avoided” because the Supreme Court “emphasized” in
those cases “the fact-intensive nature of the question.”
App.49a. As discussed above, this reading of Our Lady
and Hosanna-Tabor is wildly mistaken. Those cases
10
upheld three different district courts’ grants of summary judgment in ministerial exception cases, they
emphasized that an entire “[law]suit [is] barred by
the ‘ministerial exception,’” Our Lady, 140 S. Ct. at
2062 (quoting Hosanna-Tabor, 565 U.S. at 190), and
concurring justices cautioned about the “grave
problems for religious autonomy” that juries could
create by probing ministerial decisions, HosannaTabor, 565 U.S. at 205-06 (Alito, J., concurring).
Judge Ebel’s statement supporting the denial of
en banc review did nothing to correct the panel’s
obvious misreading of this Court’s precedent, either.
Instead, he doubled down, claiming that “[o]ur panel
decision is consistent with the Supreme Court’s
recognition [in Hosanna-Tabor and Our Lady] of the
fact-intensive nature of the inquiry into whether a
religious employee should be deemed a minister[,]”
App.122a (Ebel, J.), while ignoring the critical text
and context of those decisions counseling against jury
involvement. Nor did Judge Ebel produce or point to
any case where a court punted ministerial status to a
jury; indeed, he did not mention the word “jury” once.
Judge Ebel did add a citation to the Second
Circuit’s subsequent ruling in Belya, 45 F.4th 621.
App.123a-124a. But even that questionable decision2
seemingly acknowledged that “the religious question
of whether a party was a nun” was “collaterally
appealable,” id. (citing McCarthy v. Fuller, 714 F.3d
971, 975 (7th Cir. 2013)). Determining whether a
woman is a nun and whether a chaplain is a minister
2 See Belya v. Kapral, 59 F.4th 570, 573 (2d Cir. 2023) (Cabranes,
J., dissenting from the order denying rehearing en banc) (“[T]he
matter can and should be reviewed by the Supreme Court.”).
11
are hardly distinct questions. Belya does not support
juries deciding whether an individual is a minister.
Judge Ebel also cited a concurrence to this Court’s
denial of a writ of certiorari in Gordon College v.
DeWeese-Boyd, 142 S. Ct. 952 (2022). App.123a. “Of
course, ‘[t]he denial of a writ of certiorari imports no
expression of opinion upon the merits of the case . . . .’”
Missouri v. Jenkins, 515 U.S. 70, 85 (1995) (quoting
United States v. Carver, 260 U.S. 482, 490 (1923)).
Regardless, the accompanying statement from Justice
Alito says nothing about a jury deciding the ministerial
question (which is hardly surprising, given his and
Justice Kagan’s concurrence in Hosanna-Tabor
referencing the danger of involving juries in religious
questions). Moreover, rather than punt the issue, in
Gordon College the lower state courts held as a
matter of law that the exception did not apply to the
particular facts of that case. See Gordon Coll., 142 S.
Ct. at 954 (Alito, J.) (“The Supreme Judicial Court
. . . concluded that DeWeese-Boyd was not a ‘minister’ . . . .”). And, as Petitioner points out, Justice Alito
didn’t even assert that an interlocutory appeal was
inappropriate. Instead, he simply noted that it was a
“threshold . . . issue” that complicated that particular
case. Id. at 955. This is hardly a substantial basis for
turning a ministerial question over to a jury for the
first time.3
3 Judge Ebel also overreads Justice Alito’s mere reference to
“understanding” the brief in opposition’s concession in that case
as a full-fledged endorsement of the position that a ministerial
exception question “can be effectively reviewed following the
entry of final judgment.” App.123a.
12
To repeat, requiring a jury to make such “judgment[s] about church doctrine” itself “would pose grave
problems” under the First Amendment. HosannaTabor, 565 U.S. at 205-06 (Alito, J., concurring). The
ministerial exception would no longer be resolved
quickly and delicately to avoid interference with church
autonomy. No religious institution could quickly escape
legal claims from disgruntled former leaders. Just
look at the present case, which involves virtually no
dispute about the key facts, but rather concerns an
employee’s effort to downplay facts showing his role
as a religious leader.4 See App.83a (Bacharach, J.,
dissenting) (“Under Mr. Tucker’s version and other
undisputed facts, he qualified as a minister in his
role as Director of Student Life/Chaplain.”).
Under the malleable standard deployed by the
panel below, however, nearly every ministerial exception case would have to await jury resolution, potentially dragging a religious institution and its members
through years of discovery, depositions, and other
litigation facets before the institution’s “right to shape
its own faith and mission through its appointments”
is affirmed. Hosanna-Tabor, 565 U.S. at 188. “The harm
of such a governmental intrusion into religious affairs
would be irreparable . . . .” McCarthy v. Fuller, 714
F.3d 971, 976 (7th Cir. 2013).
4 By focusing on leadership status here, Amici States do not mean
to imply that the ministerial exception only applies to religious
leaders, narrowly defined. See, e.g., Our Lady, 140 S. Ct. at 2063
(indicating that the exception includes, inter alia, anyone “who
leads a religious organization, conducts worship services or
important religious ceremonies or rituals, or serves as a messenger
or teacher of its faith” (emphasis added) (citation omitted)).
13
One of those harms, of course, is financial. If
allowed to stand, the Tenth Circuit’s opinion will
“require[] religious bodies to spend years and fortunes
litigating who are ministers and who aren’t.” App. 133a
(Bacharach, J., dissenting). In response, the Tenth
Circuit cavalierly dismissed this as merely “the cost
of living and doing business in a civilized and highly
regulated society.” App.32a n.11. This grossly misconstrues the purpose of most religious organizations—
which is not just to “do business”—and ignores the vast
difference between litigation costs to obtain an early
dismissal and those needed to take an entire case
through a jury trial and beyond. See United States v.
City of Miami, 614 F.2d 1322, 1334 (5th Cir. 1980)
(“The expense to all sides of a full blown trial can be
enormous.”), on reh’g, 664 F.2d 435 (5th Cir. 1981).
Another critical harm interwoven with financial
considerations is the “danger of chilling religious
activity.” Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S. 327,
344 (1987) (Brennan, J., concurring). The mere “prospect[] of litigation,” as Justices Brennan and Marshall
observed in Amos, may even force religious communities to alter their “self-definition.” Id.; see also App.61a
(Bacharach, J., dissenting) (predicting that, under
the panel’s view, “a religious body might hesitate to fire
a minister even in the face of doctrinal disagreements”).
That is to say, entanglement with the government in
this way is innately coercive, in a manner that restricts
speech and religious freedom. And these harms would
not be limited in scope, given how many millions of
religious believers and thousands of religious organizations there are in Amici States and elsewhere.
Employment lawsuits are hardly uncommon, after all.
14
Rather, they make up a hefty portion of court dockets
across the country. See, e.g., Zakrzewska v. New Sch.,
574 F.3d 24, 28 (2d Cir. 2009) (“[E]mployment discrimination cases are a substantial portion of the
caseload for the District Courts of this Circuit.”).
In addition to these harms, state courts and
enforcement agencies would suffer the entanglement
of all that a jury trial on a religious question would
bring, from discovery to depositions to jury selection
to “civil factfinder[s] sitting in ultimate judgment of
what” role an identified leader “really” plays in the
religious institution. Hosanna-Tabor, 565 U.S. at 206
(Alito, J., concurring). This is constitutionally problematic, to say the least. See Carson v. Makin, 142 S.
Ct. 1987, 2001 (2022) (“Any attempt to . . . scrutinize[]
whether and how a religious school pursues its educational mission would also raise serious concerns
about state entanglement with religion . . . .”); Serbian
E. Orthodox Diocese for U.S. & Can. v. Milivojevich,
426 U.S. 696, 713, 718 (1976) (holding that “religious
controversies are not the proper subject of civil court
inquiry” and that Illinois Supreme Court’s “detailed
review” of church procedures was “impermissible under
the First and Fourteenth Amendments”).
Put differently, the ministerial exception is not
just a personal right of religious believers and their
respective organizations. It is also an important constitutional limitation on governmental power in the
realm of religion. Cf. EEOC v. Catholic Univ. of Am.,
83 F.3d 455, 465 (D.C. Cir. 1996) (“In this case, the
EEOC’s two-year investigation of Sister McDonough’s
claim, together with the extensive pre-trial inquiries
and the trial itself, constituted an impermissible
entanglement . . . .”). In the end, Amici States do not
15
want their citizens on juries tasked with determining
who is and is not a minister in their fellow citizens’
religious institutions, nor do they want their judges
and enforcement arms having the power and duty to
oversee (or even spearhead) a full-on litigation effort
poking and prodding into this question. Such a requirement is unconstitutional, and certiorari is warranted.
II. IN DENYING AN APPEAL, THE PANEL FAILED TO
RECOGNIZE THE CONSTITUTION’S STRUCTURAL
PROTECTION AGAINST INTERFERENCE IN
RELIGIOUS LEADERSHIP DISPUTES.
After wrongly concluding that ministerial status
is a quintessential jury question, the Tenth Circuit
panel compounded its error by assuming that a (mistaken) rejection of ministerial status early in litigation
has no consequences and thus cannot be appealed
immediately. The panel dismissed the Tenth Circuit’s
own prior analogy between religious autonomy and
qualified immunity defenses on the ground that
whether a religious employer is wrongly subjected to
discovery and trial involves no relevant “public interest.” App.7a. In the panel’s view, wrongly entangling
a church in an extended judicial inquiry apparently
does not involve even a private interest: “requiring a
religious employer to incur litigation costs to defend
against claims” by a religious leader “does not punish
a religious employer” and is not “even entanglement
at all.” App.32a n.11, App.49a. This is incorrect.
The Tenth Circuit’s own precedents and many
other cases refute these views. The public has overwhelming interests in protecting free exercise of religion
and avoiding church-state entanglement of this sort.
As discussed above, Amici’s courts and enforcement
bodies likewise seek to avoid unnecessary and intrusive
16
judicial probing of religion. And religious institutions
and their adherents have a compelling interest in
choosing and supervising their leaders without the
inherently coercive threat of protracted litigation. In lay
terms, religious groups should be able to make leadership decisions without looking over their shoulder
at every turn.
As this Court has explained, the “very process of
inquiry” into internal religious matters can “impinge
on rights guaranteed by the Religion Clauses.” Catholic
Bishop of Chi., 440 U.S. at 502. Recognizing as much,
the Tenth Circuit once held that the Religion Clauses
“prohibit[] civil court review of internal church disputes.” Bryce, 289 F.3d at 655. Before its current aboutface, the Tenth Circuit said that like “a government
official’s defense of qualified immunity,” religious autonomy defenses should be “resolv[ed]” “early in litigation.” Id. at 654 & n.1. The Tenth Circuit agreed that
the rule applies “when considering the ministerial
exception”: “The types of investigations a court would
be required to conduct in deciding Title VII claims
brought by a minister could only produce by their
coercive effect the very opposite of that separation of
church and State contemplated by the First Amendment.” Skrzypczak, 611 F.3d at 1242, 1245 (cleaned up).
The Tenth Circuit was correct in Skrzypczak, and
wrong below.
Courts broadly agree that the ministerial exception, like other religious autonomy defenses, is a
“structural limitation” that “categorically prohibits” the
judiciary “from becoming involved in religious leadership disputes.” Conlon, 777 F.3d at 836. These
courts also recognize “the prejudicial effects of incremental litigation” on rights protected by the Religion
17
Clauses. Demkovich, 3 F.4th at 982. After all, “[a]
Title VII action is potentially a lengthy proceeding,
involving state agencies and commissions, the EEOC,”
and courts. Rayburn v. Gen. Conf. of Seventh-Day
Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985). During
the action, “[c]hurch personnel and records would
inevitably become subject to subpoena, discovery, crossexamination, the full panoply of legal process designed
to probe the mind of the church in the selection of its
ministers.” Id. And intrusions like these pressure
churches to make decisions “with an eye to avoiding
litigation or bureaucratic entanglement rather than”
basing decisions on doctrinal assessments. Id.; see
also App.61a (Bacharach, J., dissenting); Skrzypczak,
611 F.3d at 1245 (noting discovery’s “coercive effect”
on religious ministries); Petruska v. Gannon Univ., 462
F.3d 294, 305 (3d Cir. 2006) (even “limited inquiry”
into religious matters is constitutionally problematic).
Finally, this Court itself has emphasized the
“ministerial exception bars . . . a suit” by a minister
“challenging her church’s decision to fire her.” HosannaTabor, 565 U.S. at 196 (emphasis added). In his dissent
below, Judge Bacharach expressed appropriate surprise
at the majority’s refusal to take this phrasing seriously:
“The Supreme Court’s language was unmistakable:
It characterized the ministerial exception as a defense
that would prevent the proceeding itself.” App.68a
(Bacharach, J., dissenting). Like Judge Bacharach,
Amici agree that lower courts should “take the
Supreme Court’s choice of words at face value.” Id.
The Tenth Circuit did not, and as such, it should be
reversed.
Of course, “[t]he ministerial exception’s status as
an affirmative defense makes some threshold inquiry
18
necessary.” Demkovich, 3 F.4th at 983. (The Tenth
Circuit panel’s emphasis on this point is difficult to
understand: the same is true of qualified immunity.
See App.69a (Bacharach, J., dissenting).) But limited
“discovery to determine who is a minister differs
materially from discovery to determine how that
minister was treated, especially because admissible
evidence is only a subset of discoverable information.”
Demkovich, 3 F.4th at 983.
Against these precedents, the Tenth Circuit panel
selectively quoted one law review article, see App.31a,
App.35a n.13, omitting the rather significant point that
even the article agrees that “the ministerial exception
closely resembles qualified immunity for purposes of
the collateral-order doctrine” and should likewise be
immediately appealable. Peter J. Smith & Robert W.
Tuttle, Civil Procedure and the Ministerial Exception,
86 FORDHAM L. REV. 1847, 1881 (2018). Indeed, one
of the authors of that article argued as an amici in
this very case that “the First Amendment supports
early resolution of the ministerial exception as a
threshold legal issue, subject to interlocutory appeal.”
Brief of Religious Liberty Scholars as Amici Curiae
in Support of Appellant, Tucker v. Faith Bible Chapel
Int’l, (No. 20-1230), 2022 WL 2400414, at *3 (June
28, 2022).
Though the panel majority also suggested that
“[i]mmunity from suit is a benefit typically only
reserved for governmental officials,” App.37a (citation
omitted), it quickly admitted that “collateral orders
can arise in the course of private civil litigation.”
App.38a. Indeed, the Tenth Circuit recently approved
a new category of collateral order appeals by private
parties raising a state statutory defense. Los Lobos
19
Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d
659 (10th Cir. 2018). The panel’s meager response—
that this First Amendment case does not involve that
specific “New Mexico law”—practically speaks for itself.
App.38a n.15.
Finally, in denying an en banc rehearing, Judge
Ebel claimed that it “contradicts the Supreme Court”
to “posit[] that the ministerial exception presents a
structural limitation on courts’ authority to hear employment cases.” App.122a. But Judge Ebel’s only support for this proposition was a footnote in HosannaTabor that says nothing about “structural” limitations.
565 U.S. at 195 n.4. Rather, the footnote simply held
that the ministerial exception is an affirmative defense,
right before stating that “[d]istrict courts have power
to . . . decide whether the claim can proceed or is
instead barred by the ministerial exception.” Id.
(emphasis added). That is to say, the very footnote
relied upon to prohibit interlocutory appeal and send
a ministerial exception question to the jury indicates
that district courts should decide—before a claim
proceeds—whether the claim is “barred by the
ministerial exception” once it is raised as a defense.
This is hardly a refutation of the widely accepted
notion that the ministerial exception is structural.
Hosanna-Tabor does not support the idea that
the ministerial exception is a run-of-the-mill defense
against liability, with no broader structural implications. As the dissenters below observed, the panel’s
opinion “reflects a fundamental misconception,” as the
exception “protects a religious body from the suit itself”
and plays a “structural role . . . in limiting governmental
power.” App.126a (Bacharach, J., dissenting).
20
In sum, a “protracted legal process pitting church
and state as adversaries” entangles the government
and religion in ways that are constitutionally forbidden.
Demkovich, 3 F.4th at 982 (quoting Rayburn, 772
F.2d at 1171). Avoiding this entanglement and protecting the structure of our government and the free
exercise of religion are constitutional interests of the
highest order, and an immediate appeal must be
available to vindicate them. The stakes here are indeed
“exceptionally important,” App.126a (Bacharach, J.,
dissenting), both for religious believers and Amici.
Certiorari is warranted.
21
CONCLUSION
For the reasons stated, this Court should grant
certiorari and reverse the decision below.
Respectfully submitted,
GENTNER F. DRUMMOND
Oklahoma Attorney General
GARRY M. GASKINS, II
Solicitor General
ZACH WEST
Director of Special Litigation
Counsel of Record
OFFICE OF THE OKLAHOMA
ATTORNEY GENERAL
313 N.E. Twenty-First Street
Oklahoma City, OK 73105
(405) 521-3921
zach.west@oag.ok.gov
Counsel for Amici Curiae
March 10, 2023
Additional Counsel Listed on Following Page
22
STEVE MARSHALL
Attorney General
State of Alabama
TREG TAYLOR
Attorney General
State of Alaska
TIM GRIFFIN
Attorney General
State of Arkansas
CHRISTOPHER M. CARR
Attorney General
State of Georgia
RAÚL R. LABRADOR
Attorney General
State of Idaho
TODD ROKITA
Attorney General
State of Indiana
BRENNA BIRD
Attorney General
State of Iowa
KRIS KOBACH
Attorney General
State of Kansas
DANIEL CAMERON
JEFF LANDRY
Attorney General
Attorney General
Commonwealth of Kentucky State of Louisiana
LYNN FITCH
Attorney General
State of Mississippi
ANDREW BAILEY
Attorney General
State of Missouri
AUSTIN KNUDSEN
Attorney General
State of Montana
MIKE HILGERS
Attorney General
State of Nebraska
ALAN WILSON
Attorney General
State of South Carolina
JONATHAN SKRMETTI
Attorney General and Reporter
State of Tennessee
KEN PAXTON
Attorney General
State of Texas
SEAN D. REYES
Attorney General
State of Utah
PATRICK MORRISEY
JASON MIYARES
Attorney General
Attorney General
Commonwealth of Virginia State of West Virginia
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