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 ETHICS AND

PUBLIC POLICY CENTER AND THE ISLAM

AND RELIGIOUS FREEDOM ACTION TEAM

OF THE RELIGIOUS FREEDOM INSTITUTE

IN SUPPORT OF PETITIONER

__________________________________________________________________________________________________

MATTHEW T. NELSON

Counsel of Record

CONOR B. DUGAN

DANIEL S. BROOKINS*

KATHERINE G. BOOTHROYD

WARNER NORCROSS + JUDD

LLP

150 Ottawa Avenue NW, Suite

1500

Grand Rapids, MI 49503

(616) 752-2539

mnelson@wnj.com

*Supervised by principals of

the firm who are members of

the Michigan bar

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

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

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 6

I.

The ministerial exception protects the

courts from exercising governmental

authority

to

review

religious

determinations................................................ 6

II. Because of the protections afforded by

the ministerial exception, it should be

treated as a legal issue, and its

application should be determined

before courts reach the merits. .................... 10

A. Whether the ministerial exception

applies is a legal question. ..................... 11

B. If discovery is needed to decide if

the ministerial exception applies,

discovery should be limited to that

issue. ....................................................... 15

C. If trial is necessary, courts should

bifurcate trial on the ministerial

exception from trial on the merits. ........ 19

D. Orders denying the application of

the ministerial exception should be

immediately appealable under the

collateral-order doctrine. ....................... 20

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alicea-Hernandez v. Archdiocese of Chicago,

No. 01 C 8374, 2002 WL 598517 (N.D.

Ill. Apr. 18, 2002) .............................................. 12

Anderson v. Creighton,

483 U.S. 635 (1987) ........................................... 18

Backe v. LeBlanc,

691 F.3d 645 (5th Cir. 2012) ............................. 18

Belya v. Kapral¸

45 F.4th 621 (2d Cir. 2022) ....................... 3, 4, 17

Bernstein v. Bernstein Litowitz Berger &

Grossmann LLP,

814 F.3d 132 (2d Cir. 2016) .............................. 16

Cannata v. Catholic Diocese of Austin,

No. A-10-CA-375 LY, 2011 WL 4352771

(W.D. Tex. Sept. 16, 2011) ................................ 12

Center for Auto Safety v. Chrysler Group,

LLC,

809 F.3d 1092 (9th Cir. 2016) ........................... 16

Ciurleo v. St. Regis Parish,

214 F. Supp.3d 647 (E.D. Mich. 2016).............. 12

Cohen v. Beneficial Industries Loan Corp.,

337 U.S. 541 (1949) ........................................... 20

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Collette v. Archdiocese of Chicago,

200 F. Supp. 3d 730 (N.D. Ill. 2016) ................. 17

Conlon v. InterVarsity Christian

Fellowship,

777 F.3d 829 (6th Cir. 2015) ......................... 9, 12

Corporation of Presiding Bishop of Church

of Jesus Christ of Latter-Day Saints v.

Amos,

483 U.S. 327 (1987) ........................................... 16

Demkovich v. St. Andrew the Apostle

Parish, Calumet City,

3 F.4th 968 (7th Cir. 2021) (en banc) ................. 3

EEOC v. Catholic University of America,

83 F.3d 455 (D.C. Cir. 1996) ............................. 13

Elvig v. Calvin Presbyterian Church,

375 F.3d 951 (9th Cir. 2004) ............................... 4

Fassl v. Our Lady of Perpetual Help Roman

Catholic Church,

No. CIV.A. 05-CV-0404, 2005 WL

2455253 (E.D. Pa. Oct. 5, 2005)........................ 18

Fitzgerald v. Roncalli High School, Inc.,

No. 1:19-cv-04291RLYTAB, 2021 WL

4539199 (S.D. Ind. Sept. 30, 2021) ................... 17

Fratello v. Roman Catholic Archdiocese of

New York,

175 F. Supp. 3d 152 (S.D.N.Y. 2016) .......... 12, 18

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Grussgott v. Milwaukee Jewish Day School,

Inc.,

882 F.3d 655 (7th Cir. 2018) ................. 11, 12, 14

Guinan v. Roman Catholic Archdiocese of

Indianapolis,

42 F. Supp. 2d 849 (S.D. Ind. 1998) ................. 12

Heard v. Johnson,

810 A.2d 871 (D.C. 2002) .................................. 13

Herzog v. St. Peter Lutheran Church,

884 F. Supp. 2d 668 (N.D. Ill. 2012) ................. 17

Hosanna-Tabor Evangelical Lutheran

Church & School v. Morrissey-Berru,

565 U.S. 171 (2012) ............................. 4, 6–10, 15

Johnson v. Jones,

515 U.S. 304 (1995) ..................................... 20, 21

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in North America,

344 U.S. 94 (1952) ........................................... 7, 8

Kirby v. Lexington Theological Seminary,

426 S.W.3d 597 (Ky. 2014)................................ 13

Lee v. Sixth Mount Zion Baptist Church of

Pittsburgh,

903 F.3d 113 (3d Cir. 2018) .......................... 9, 11

v

TABLE OF AUTHORITIES—Continued

Page(s)

Lishu Yin v. Columbia International

University,

No. 3:15-CV-03656-JMC, 2017 WL

4296428 (D.S.C. Sept. 28, 2017) ....................... 18

McCarthy v. Fuller,

714 F.3d 971 (7th Cir. 2013) ............................. 21

Miller v. Bay View United Methodist

Church, Inc.,

141 F. Supp. 2d 1174 (E.D. Wis. 2001) ............ 12

Mitchell v. Forsyth,

472 U.S. 511 (1985) ..................................... 21, 22

Mitchell v. Helms,

530 U.S. 793 (2000) ........................................... 10

N.L.R.B. v. Catholic Bishop of Chicago,

440 U.S. 490 (1979) ..................................... 10, 15

Our Lady of Guadalupe School v. MorrisseyBerru,

140 S. Ct. 2049 (2020) ..................................... 4, 9

Plumhoff v. Rickard,

572 U.S. 765 (2014) ........................................... 21

Preece v. Covenant Presbyterian Church,

No. 8:13CV188, 2015 WL 1826231 (D.

Neb. Apr. 22, 2015) ........................................... 12

Presbyterian Church (U.S.A.) v. Edwards,

566 S.W.3d 175 (Ky. 2018)................................ 17

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Rayburn v. General Conference of SeventhDay Adventists,

772 F.2d 1164 (4th Cir. 1985) ....................... 3, 16

Robertson v. Lucas,

753 F.3d 606 (6th Cir. 2014) ............................. 19

Rweyemamu v. Cote,

520 F.3d 198 (2d Cir. 2008) ................................ 3

Serbian Eastern Orthodox Diocese for

United States of America & Canada v.

Milivojevich,

426 U.S. 696 (1976) ......................................... 7, 8

Smith v. Raleigh District of North Carolina

Conference of United Methodist Church,

63 F. Supp. 2d 694 (E.D.N.C. 1999) ................. 12

Solomon v. Petray,

795 F.3d 777 (8th Cir. 2015) ............................. 18

Stabler v. Congregation Emanu-El of the

City of New York,

No. 16 CIV. 9601 (RWS), 2017 WL

3268201 (S.D.N.Y. July 28, 2017) .................... 18

Starkman v. Evans,

198 F.3d 173 (5th Cir. 1999) ............................. 12

Sterlinski v. Catholic Bishop of Chicago,

No. 16 C 00596, 2017 WL 1550186 (N.D.

Ill. May 1, 2017) ................................................ 17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Tomic v. Catholic Diocese of Peoria,

442 F.3d 1036 (7th Cir. 2006) ............................. 9

Tucker v. Faith Bible Chapel International,

36 F.4th 1021 (10th Cir. 2022) ............... 4, 14, 15

Tucker v. Faith Bible Chapel International,

53 F.4th 620 (10th Cir. 2022) ....................... 3, 12

Turner v. Church of Jesus Christ of LatterDay Saints,

18 S.W.3d 877 (Tex. App. 2000) ....................... 13

Watson v. Jones,

80 U.S. 679 (1871) ........................................... 6, 7

Weishuhn v. Lansing Catholic Diocese,

787 N.W.2d 513 (Mich. Ct. App. 2010) ............. 13

Will v. Hallock,

546 U.S. 345 (2006) ........................................... 20

Statutes

28 U.S.C. § 1291 ..................................................... 20

28 U.S.C. § 1292 ..................................................... 20

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Rules

Fed. R. Civ. P. 16 .................................................... 15

Fed. R. Civ. P. 26 .................................................... 15

Fed. R. Civ. P. 42 .................................................... 19

S. Ct. Rule 37.6 ......................................................... 1

Other Authorities

Mark E. Chopko, Marissa Parker, Still A

Threshold Question: Refining the

Ministerial Exception Post-HosannaTabor, 10 First Amend. L. Rev. 233

(2012) ................................................................. 15

Peter J. Smith & Robert W. Tuttle, Civil

Procedure and the Ministerial Exception,

86 Fordham L. Rev. 1847, 1867 (2018) .............. 5

1

BRIEF OF AMICI CURIAE ETHICS AND

PUBLIC POLICY CENTER AND THE ISLAM

AND RELIGIOUS FREEDOM ACTION TEAM

OF THE RELIGIOUS FREEDOM INSTITUTE

IN SUPPORT OF PETITIONER

Amici curiae, Ethics and Public Policy Center and

The Islam and Religious Freedom Action Team of the

Religious Freedom Institute, respectfully submit that

this Court should grant the petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit.1

INTEREST OF THE AMICI CURIAE

Amicus curiae Ethics and Public Policy Center

(“EPPC”) is a nonprofit research institution dedicated

to defending American ideals and to applying the

Judeo-Christian moral tradition to critical issues of

public policy. A strong commitment to a robust

understanding of religious liberty pervades EPPC’s

work. EPPC’s HHS Accountability Project regularly

submits regulatory comments and amicus briefs on

religious liberty issues, and is led by two lawyers,

Rachel Morrison and Eric Kniffin, with extensive

religious liberty experience. EPPC Distinguished

Senior Fellows George Weigel and Ed Whelan have

written about the theological and constitutional

aspects of religious liberty. EPPC’s president, Ryan T.

1

Pursuant to this Court’s Rule 37.6, amici curiae state that this

brief was not authored in whole or in part by counsel for any

party, and that no person or entity other than amici curiae and

its counsel made a monetary contribution to the preparation or

submission of this brief. All parties have been timely notified of

the filing of this brief.

2

Anderson, has published several books and law review

articles on religious liberty disputes. EPPC’s Faith

Angle Forum aims to strengthen reporting and

commentary on how religious believers, religious

convictions, and religiously grounded moral

arguments affect American politics and public life.

Amicus curiae The Islam and Religious Freedom

Action Team (“IRF”) of the Religious Freedom

Institute amplifies Muslim voices on religious

freedom, seeks a deeper understanding of the support

for religious freedom inside the teachings of Islam,

and protects the religious freedom of Muslims. To this

end, the IRF engages in research, education, and

advocacy on core issues including freedom from

coercion in religion and equal citizenship for people of

diverse faiths. The IRF explores and supports

religious freedom by translating resources by

Muslims about religious freedom, fostering inclusion

of Muslims in religious freedom work both where

Muslims are a majority and where they are a

minority, and by partnering with the Institute’s other

teams in advocacy.

EPPC’s and IRF’s interest in this case arises from

the centrality of the ministerial exception to the First

Amendment’s parallel guarantees of the free exercise

and non-establishment of religion. A religious group’s

choices as to who will lead its religious exercises like

prayer and communal worship, and who will convey

the tenets of religious faith, are at the very heart of

religious exercise. Government interference in such

decisions—including by allowing the judicial process

to proceed beyond the point necessary to determine if

the ministerial exception applies—undermines the

protections afforded by the First Amendment and the

3

consequent limitations on the judicial branch of

government. As this Court and other courts have

cautioned, such judicial intrusions into religious

organizations’ internal affairs may chill religious

exercise and distort religious communities’ process of

self-definition.

SUMMARY OF ARGUMENT

Until the Tenth Circuit’s decision below and then

the Second Circuit’s decision in Belya v. Kapral¸ 45

F.4th 621 (2d Cir. 2022), courts were coalescing

around a common approach to certain procedural

issues related to the ministerial exception. First, as

the cases cited by amici below confirm, infra n.2,

“every federal or state appellate court to address the

issue ha[d] characterized ministerial status as a

question of law.” Tucker v. Faith Bible Chapel Int’l, 53

F.4th 620, 628 (10th Cir. 2022) (Bacharach, J

dissenting from the denial of en banc consideration).

Second, courts agreed that—discovery—to the extent

it is needed—should be bifurcated to focus on the

ministerial exception first. See infra n.3 (collecting

cases); see, e.g., Demkovich v. St. Andrew the Apostle

Parish, Calumet City, 3 F.4th 968, 983 (7th Cir. 2021)

(en banc) (noting that the ministerial exception makes

a threshold inquiry necessary and that this discovery

is materially different from discovery to determine

how that minister was treated); Rweyemamu v. Cote,

520 F.3d 198, 207 (2d Cir. 2008) (noting that a case in

which the ministerial exception is implicated may

only proceed where there is a limited inquiry and the

court can prevent a wide-ranging intrusion into

sensitive religious matters); Rayburn v. General

Conference of Seventh-Day Adventists, 772 F.2d 1164,

1165 (4th Cir. 1985) (explaining that discovery was

4

limited to focus on the nature of an associateship in

pastoral care); Elvig v. Calvin Presbyterian Church,

375 F.3d 951, 957 (9th Cir. 2004) (noting the

“restricted inquiry” of the affirmative defense of the

ministerial exception).

The Second and Tenth Circuit’s decisions

represent a departure from what had been a

consensus. The Tenth Circuit held that the

ministerial exception is not a legal issue and therefore

not appropriate for review under the collateral-order

doctrine. Tucker v. Faith Bible Chapel Int’l, 36 F.4th

1021, 1029–1030, 1048 (10th Cir. 2022). And the

Second Circuit showed where the Tenth Circuit’s

reasoning leads, because the district court in Belya

refused to bifurcate discovery and the Second Circuit

left that order untouched. See 45 F.4th at 628.

Both decisions are fundamentally at odds with this

Court’s analyses in Hosanna-Tabor Evangelical

Lutheran Church & School v. EEOC and Our Lady of

Guadalupe School v. Morrissey-Berru, which

demonstrate that the ministerial exception’s function

is to protect personal and organizational religious

liberty, and also to protect government institutions

from becoming entangled with religious disputes that

the First Amendment recognizes they are incapable of

resolving. See 565 U.S. 171, 189 (2012); 140 S. Ct.

2049, 2060 (2020). This structural function is consistent with the three main cases the Court discussed

in Hosanna-Tabor. In each of those cases, the Court

concluded that the state was categorically forbidden

from revisiting religious decisions made by religious

organizations.

Because the ministerial exception protects the

judiciary from entangling itself in religious affairs

5

which it is incompetent to resolve, and not just the

religious entity’s right to choose its ministers free

from the chilling effect of judicial regulation, the

ministerial exception is analogous to official immunity. With regard to both complete and qualified

immunity, the defendant is harmed by the very act of

being sued. Here, both the judiciary and the religious

entity are harmed by the lawsuit itself when a

religious entity is dragged into the secular courts for

exercising its right to select its ministers. See Peter J.

Smith & Robert W. Tuttle, Civil Procedure and the

Ministerial Exception, 86 Fordham L. Rev. 1847, 1867

(2018) (observing that the doctrine “imposes a

disability on civil government with respect to specific

religious questions”).

The purposes of the ministerial exception answer

the procedural questions at issue in Tucker and Belya.

Because the very maintenance of litigation where the

ministerial exception applies harms the structural

and personal interests that the doctrine protects, the

exception should be treated as a legal issue that can

be resolved early in the case. Courts should address

the doctrine expeditiously (as they do when resolving

immunity questions) and limit discovery to whether

the plaintiff is or was a ministerial employee. And if a

court determines that the ministerial exception does

not apply, the party asserting the exception should be

allowed to immediately appeal under the collateralorder doctrine.

This case offers this Court an opportunity to clarify

further the protections afforded by the ministerial

exception and to give practical guidance on how those

protections affect the procedure for applying the

doctrine.

6

ARGUMENT

I.

The ministerial exception protects

the

courts

from

exercising

governmental authority to review

religious determinations.

In Hosanna-Tabor, the Court determined that “it

is impermissible for the government to contradict a

church’s determination of who can act as its ministers.” 565 U.S. at 185. One reason for this conclusion

is that according the state such power violates the

Establishment Clause. Id. at 188–189.

This Court began its analysis of whether a

ministerial exception exists by tracing the history of

legal protections for religion in America. Id. at 182–

187. The Court focused on three cases dating back

nearly 150 years, all involving property disputes, and

all of which recognized that the government is categorically prohibited from contradicting ecclesiastical

decisions. Id. at 185–187.

In Watson v. Jones, 80 U.S. 679 (1871), this Court

declined to interfere with a denomination’s

determination as to which faction of a church rightly

controlled the church’s property. There the Court

stated:

The right to organize voluntary

religious associations to assist in the

expression and dissemination of any

religious doctrine, and to create

tribunals for the decision of controverted questions of faith within the

association, and for the ecclesiastical

government of all the individual

members, congregations, and officers

7

within the general association, is

unquestioned. . . . It is of the essence of

these religious unions, and of their

right to establish tribunals for the

decision of questions arising among

themselves, that those decisions should

be binding in all cases of ecclesiastical

cognizance, subject only to such appeals

as the organism itself provides for. [Id.

at 728–729.]

Accordingly, the Court adopted the common-law

rule that courts could not review or overturn decisions

by religious bodies on “questions of discipline, or of

faith, or ecclesiastical rule, custom, or law.” Id. at 727.

Some 80 years later, this Court declared that the

decision in Watson “radiate[d] . . . a spirit of freedom

for religious organizations, an independence from

secular control or manipulation, in short, power to

decide for themselves, free from state interference,

matters of church government as well as those of faith

and doctrine.” Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in N. Am., 344 U.S. 94, 116

(1952). In Kedroff, the Court first recognized that the

freedom to select clergy is protected under the First

Amendment. See Hosanna-Tabor, 565 U.S. at 186;

Kedroff, 344 U.S. at 116. Ecclesiastical questions, the

Court declared, are “forbidden” to the “power of the

state.” Kedroff, 344 U.S. at 119.

This Court returned to the harm caused by the

interjection of the courts into ecclesiastical or

religious questions in Serbian Eastern Orthodox

Diocese for United States of America & Canada v.

Milivojevich, 426 U.S. 696 (1976). In Milivojevich, the

Court determined that courts cannot “delve into the

8

various church constitutional provisions” because to

do so would repeat the lower court’s error of involving

itself in “internal church government, an issue at the

core of ecclesiastical affairs.” Id. at 721.

In short, in the three cases that animated this

Court’s recognition of the ministerial exception in

Hosanna-Tabor, the Court emphasized that the state,

and courts in particular, are categorically forbidden

from resolving religious disputes.

The Court’s adoption of the ministerial exception

applied this categorical prohibition to religious

organizations’ decisions about who will serve as the

organizations’ ministers. In Hosanna-Tabor, this

Court recognized that “[r]equiring a church to accept

or retain an unwanted minister, or punishing a

church for failing to do so” similarly enmeshes the

state in the affairs of religious bodies in the same

fashion as deciding doctrinal disputes. 565 U.S. at

188–189. Doing so “interferes with the internal

governance of the church, depriving the church of

control over the selection of those who will personify

its beliefs,” thereby interfering with “a religious

group’s right to shape its own faith and mission

through its appointments.” Id. at 188. This in turn

“violates the Establishment Clause, which prohibits

government involvement in such ecclesiastical

decisions.” Id. at 189. Because the Establishment

Clause “prohibits government involvement in

ecclesiastical matters,” id., it is “impermissible for the

government to contradict a church’s determination of

who can act as its ministers,” id. at 185.

In Our Lady of Guadalupe School v. MorrisseyBerru, this Court reaffirmed the structural nature of

the ministerial exception and explained that “[s]tate

9

interference in that sphere would obviously violate

the free exercise of religion, and any attempt by

government to dictate or even to influence such

matters would constitute one of the central attributes

of an establishment of religion.” 140 S. Ct. at 2060.

Accordingly, “courts are bound to stay out of

employment disputes involving those holding certain

important positions with churches and other religious

institutions.” Id. (emphasis added).

Thus, the ministerial exception protects religious

liberties and the courts’ structural interest in avoiding

the establishment of religion. The federal courts of

appeals have recognized the structural protection

afforded by the ministerial exception and so have

declined to allow parties to waive the doctrine and

thereby drag courts into religious controversies by

choice or neglect. Conlon v. InterVarsity Christian

Fellowship, 777 F.3d 829, 836 (6th Cir. 2015). Accord

Lee v. Sixth Mount Zion Baptist Church of Pittsburgh,

903 F.3d 113, 118 n.4 (3d Cir. 2018); Tomic v. Catholic

Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006),

abrogated on other grounds, Hosanna-Tabor, 565 U.S.

171.

10

II.

Because of the protections afforded

by the ministerial exception, it

should be treated as a legal issue,

and its application should be

determined before courts reach the

merits.

When the Court adopted the ministerial

exception, it addressed only one procedural aspect of

the doctrine. Before Hosanna-Tabor, courts were split

on whether the ministerial exception was jurisdictional or an affirmative defense. This Court determined

that the ministerial exception is an affirmative defense and not a jurisdictional bar. 565 U.S. at 195 n.4.

Before the Tenth Circuit’s decision here and the

Second Circuit’s decision in Belya, courts were

uniformly coalescing around a common approach

towards some of the other procedural issues related to

the ministerial exception. Generally, courts were

treating the ultimate application of the exception as a

legal issue well suited for early resolution and were

bifurcating discovery to focus on that issue.

The rationale for the ministerial exception

confirms that this approach is correct. The protection

of personal religious liberty encompassed by the

ministerial exception includes the recognition that it

is not only the decisions made by the court that

“impinge” on religious liberty but the “very process of

inquiry” leading to those decisions that impinges on

that liberty. N.L.R.B. v. Catholic Bishop of Chicago,

440 U.S. 490, 502 (1979). Indeed, “it is well

established, in numerous other contexts, that courts

should refrain from trolling through a person’s or

institution’s religious beliefs.” Mitchell v. Helms, 530

U.S. 793, 828 (2000) (plurality op.) (cleaned up).

11

The structural interest in avoiding the

establishment of religion also commends limiting the

scope of courts’ involvement in cases before

determining if the ministerial exception applies.

Indeed, the ministerial exception is unlike most other

affirmative defenses. Courts have no interest of their

own in whether a party’s claims are barred by unclean

hands or whether the statute of limitations has

expired. But because of the structural limitation

imposed by the ministerial exception on the exercise

of judicial authority, courts do have an interest in

ensuring that the exception is applied even where the

parties fail to raise the doctrine or where someone

claims that they have waived it affirmatively. See,

e.g., Lee, 903 F.3d at 117–118, 123 (upholding

application of the ministerial exception where trial

court raised the issue sua sponte); Grussgott v.

Milwaukee Jewish Day School, Inc., 882 F.3d 655, 658

(7th Cir. 2018) (stating that “a religious institution

does not waive the ministerial exception by

representing itself to be an equal-opportunity

employer”), cert. denied, 139 S. Ct. 456 (2018).

Accordingly, and as explained in more detail

below, in cases where the exception may apply, (1) it

should be characterized as a legal question, (2)

discovery should be bifurcated to focus on that issue,

(3) any trial should be similarly bifurcated, and (4)

interlocutory appeals should be available under the

collateral order doctrine.

A. Whether the ministerial exception

applies is a legal question.

Before the Tenth Circuit’s decision below, “every

federal or state appellate court to address the issue

ha[d] characterized ministerial status as a question of

12

law.” Tucker, 53 F.4th at 628 (Bacharach, J dissenting

from the denial of en banc consideration).2 Even this

2

See, e.g., Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999)

(“The status of employees as minister . . . remains a legal

conclusion for this court.”); Conlon, 777 F.3d at 833 (stating that

“whether the [ministerial] exception attaches at all is a pure

question of law”); Fratello v. Roman Catholic Archdiocese of New

York, 175 F. Supp. 3d 152, 162 (S.D.N.Y. 2016) (“Whether the

[ministerial] exception attaches is a pure question of law which

this Court must determine for itself.” (cleaned up));

Grussgott, 260 F. Supp. 3d at 1054 n.1 (“With due respect to

[expert witness opining on whether plaintiff was a minister],

application of precedent to a given factual scenario is a question

of law, and the Court is the only expert permitted to address such

questions.”); Ciurleo v. St. Regis Parish, 214 F. Supp.3d 647, 650

(E.D. Mich. 2016) (“[W]hether the exception attaches at all is a

pure question of law which this court must determine for itself.”);

Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.

Supp. 2d 849, 852 (S.D. Ind. 1998) (“The applicability of the

ministerial exception is a question of law for the court.”); Miller

v. Bay View United Methodist Church, Inc., 141 F. Supp. 2d 1174,

1181 (E.D. Wis. 2001) (“The applicability of the ministerial

exception is a question of law for the court.”); Smith v. Raleigh

Dist. of North Carolina Conference of United Methodist Church,

63 F. Supp. 2d 694, 706 (E.D.N.C. 1999) (“The applicability of the

ministerial exception is a question of law for the court.”); AliceaHernandez v. Archdiocese of Chicago, No. 01 C 8374, 2002 WL

598517, at *4 (N.D. Ill. Apr. 18, 2002) (“[A]pplicability of the

ministerial exception is a question of law for the court.”);

Cannata v. Catholic Diocese of Austin, No. A-10-CA-375 LY, 2011

WL 4352771, at *6 (W.D. Tex. Sept. 16, 2011), report and

recommendation adopted, No. A-10-CV-375-LY, 2011 WL

7074303 (W.D. Tex. Oct. 21, 2011), aff’d, 700 F.3d 169 (5th Cir.

2012) (“Whether an employee of a religious institution is a

‘minister’ is a question of law for the court.”); Preece v. Covenant

Presbyterian Church, No. 8:13CV188, 2015 WL 1826231, at *3

(D. Neb. Apr. 22, 2015) (“The court must make a determination

of the functions of a church employee. However, whether the

13

Court in Hosanna-Tabor and Our Lady approached

the issue as a legal question. See Pet. at 24. And for

good reason: treating the exception as a jury question

would further enmesh the courts in the affairs of the

church and inflict the very harm the exception is

designed to protect. See EEOC v. Catholic Univ. of

Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (“In this case,

the EEOC’s two-year investigation of [the] claim,

together with the extensive pre-trial inquiries and the

trial

itself,

constituted

an

impermissible

entanglement with judgments that fell within the

exclusive province of the Department of Canon Law as

a pontifical institution.”); Kirby v. Lexington

Theological Seminary, 426 S.W.3d 597, 609 (Ky. 2014)

(“Certainly, it is important ‘that these questions be

framed as legal questions and resolved expeditiously

at the beginning of litigation to minimize the

possibility of constitutional injury’ and provide the

litigants with a clear understanding of the litigation’s

track.” (quoting Mark E. Chopko, Marissa Parker,

exception attaches at all is a pure question of law which this

court must determine for itself.” (cleaned up)); Kirby v. Lexington

Theol. Seminary, 426 S.W.3d 597, 608–609 (Ky. 2014) (“[W]e hold

the determination of whether an employee of a religious

institution is a ministerial employee is a question of law for the

trial court, to be handled as a threshold matter.”); Weishuhn v.

Lansing Catholic Diocese, 787 N.W.2d 513, 517 (Mich. Ct. App.

2010) (characterizing the applicability of the ministerial

exception as a “question of law”); Turner v. Church of Jesus

Christ of Latter-Day Saints, 18 S.W.3d 877, 895 (Tex. App. 2000)

(“Whether a person is a ‘minister’ for the purpose of determining

the applicability of the ‘ministerial exception’ to judicial review

of employment decisions is a question of law.”); Heard v.

Johnson, 810 A.2d 871, 877 (D.C. 2002) (concluding that “[a]

claim of immunity from suit under the First Amendment” entails

an issue of law).

14

Still A Threshold Question: Refining the Ministerial

Exception Post-Hosanna-Tabor, 10 First Amend. L.

Rev. 233, 292–293 (2012)). Moreover, the ultimate

decision of whether the exception applies involves

application of judicial precedent to the facts of the

case, “and the Court is the only expert permitted to

address such questions.” Grussgott, 882 F.3d at 657.

The Tenth Circuit’s contrary holding not only

conflicts with these cases, it rests on faulty reasoning.

The Tenth Circuit held that application of the

ministerial exception is not a legal issue because an

individual’s status as a “minister” is a “fact-intensive

inquiry.” Tucker, 36 F.4th at 1029–1030. But that

conclusion does not follow from that premise. The

nature of the inquiry and the nature of the ultimate

conclusion are different things: “[T]he inquiry is factdependent and considers the employee’s title,

qualifications, and responsibilities[,] [b]ut the

ultimate question of ministerial status entails a

matter of law.” Id. at 1057 (Bacharach, J., dissenting).

Official immunity offers a useful analogy. The

factual nature of the inquiry in qualified immunity

cases has not stopped courts from treating the

application of the doctrine as a legal issue. As the

Tenth Circuit itself noted, “[t]here are cases in the

qualified-immunity context where a court will

construe disputed facts in the plaintiff’s favor in order

to answer the legal question of whether the plaintiff

has asserted a clearly established constitutional

violation.” Id. at 1035 n.8. The dissent aptly

illustrates that this is exactly what the district court

should have done here. See id. at 1059–66. The

disputed facts in this case were not material. See id.

Even when they were construed in Tucker’s favor,

15

Tucker was still a minister under this Court’s

jurisprudence. See id. at 1066.

For these reasons, the Court should take this

opportunity to clarify that application of the

ministerial exception is a legal question well suited for

early resolution.

B. If discovery is needed to decide if the

ministerial exception applies, discovery should be limited to that issue.

If the application of the ministerial exception is

not resolved by a motion to dismiss, courts should

limit discovery to topics relevant to whether the

ministerial exception applies. See Fed. R. Civ. P.

16(b)(3)(B)(ii), 26(b)(1). The reasons for this are

twofold.

First, allowing broad discovery in an employment

case involving a ministerial employee will result in

inquiries into the minister’s fitness for the position,

the basis for the termination, and whether that basis

was pretextual. These are precisely the inquiries that

Hosanna-Tabor held that the government cannot

make. 565 U.S. at 188–189.

Second, the “process of inquiry” harms the rights

protected by the Religion Clauses, Catholic Bishop of

Chicago, 440 U.S. at 502, and discovery is a principal

means by which that harm is inflicted. See Mark E.

Chopko, Marissa Parker, Still A Threshold Question:

Refining the Ministerial Exception Post-HosannaTabor, 10 First Amend. L. Rev. 233, 293–294 (2012).

Subjecting a religious organization to discovery about

its choice of its ministers can result in the

organization’s leaders being deposed on matters of

doctrine and religious orthodoxy, as well as the

16

organization’s fidelity to its beliefs in practice.

Discovery may also result in the adversarial inquiry

into the spiritual beliefs and failings of religious

persons. Such inquiry may chill a religious

organization’s articulation and practice of its faith if

it knows that it might face discovery. See Corporation

of Presiding Bishop of Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 343–344

(1987) (Brennan, J., concurring) (“While a church may

regard the conduct of certain functions as integral to

its mission, a court may disagree. A religious

organization therefore would have an incentive to

characterize as religious only those activities about

which there likely would be no dispute, even if it

genuinely believed that religious commitment was

important in performing other tasks as well. As a

result, the community’s process of self-definition

would be shaped in part by the prospects of

litigation.”); Rayburn, 772 F.2d at 1171 (“There is the

danger that churches, wary of EEOC or judicial

review of their decisions, might make them with an

eye to avoiding litigation or bureaucratic

entanglement rather than upon the basis of their own

personal and doctrinal assessments of who would best

serve the pastoral needs of their members.”).

This problem is compounded by the possibility of

contentious motion practice where such information is

likely to be made part of the public record. Bernstein

v. Bernstein Litowitz Berger & Grossmann LLP, 814

F.3d 132, 140–141 (2d Cir. 2016) (recognizing

presumption of public access to documents filed in a

civil proceeding); Center for Auto Safety v. Chrysler

Grp., LLC, 809 F.3d 1092, 1096–1098 (9th Cir. 2016)

(recognizing strong presumption of public access to

documents filed in a civil proceeding, and requiring a

17

party to demonstrate a compelling reason for

documents to be kept under seal).

This Court should provide guidance that, where

discovery is necessary to determine whether the

ministerial exception is applicable, district courts

should limit the discovery to that issue. Courts should

not allow discovery that may be moot if the ministerial

exception applies. Such discovery carries with it the

very harms the ministerial exception is intended to

prevent.

Indeed, this was the approach the lower courts

uniformly took before Belya. See Fitzgerald v. Roncalli

High Sch., Inc., No. 1:19-cv-04291RLYTAB, 2021 WL

4539199, at *1 (S.D. Ind. Sept. 30, 2021) (“courts

regularly bifurcate discovery in ministerial cases”);

see also Presbyterian Church (U.S.A.) v. Edwards, 566

S.W.3d 175, 179 (Ky. 2018) (allowing merits discovery

before resolving a church’s ministerial exception

defense “would result in a substantial miscarriage of

justice” since the defense “includes protection against

the cost of trial and the burdens of broad-reaching

discovery” (cleaned up)).3 But see Belya, 45 F.4th at

3

Accord, e.g., Sterlinski v. Catholic Bishop of Chicago, No. 16 C

00596, 2017 WL 1550186, at *5 (N.D. Ill. May 1, 2017)

(“[D]iscovery must move forward, but only on a limited basis.

Before launching into potentially intrusive merits discovery

about the firing—the very type of intrusion that the ministerial

exception seeks to avoid—it is sensible to limit discovery to the

applicability of the ministerial exception.”); Herzog v. St. Peter

Lutheran Church, 884 F. Supp. 2d 668, 671 (N.D. Ill. 2012) (“The

Court allowed limited discovery to determine whether the

ministerial exception applies.”); Collette v. Archdiocese of

Chicago, 200 F. Supp. 3d 730, 735 (N.D. Ill. 2016) (“To help focus

the discovery to be taken in this phase, the Court notes that the

18

628 (observing district court denied motion to

bifurcate discovery).

It is also the approach this Court has directed trial

courts to employ in the official immunity context. For

example, in Anderson v. Creighton, 483 U.S. 635, 646

n.6 (1987), this Court noted where discovery is

necessary to resolve whether qualified immunity

applies, “any such discovery should be tailored

specifically to the question of . . . qualified immunity.”

Accordingly, the lower courts will allow limited

discovery to determine if qualified immunity wholly

bars a suit. See, e.g., Backe v. LeBlanc, 691 F.3d 645,

648 (5th Cir. 2012) (discussing the “careful procedure

under which a district court may defer its qualified

immunity ruling if further factual development is

necessary to ascertain the availability of that

defense.”); Solomon v. Petray, 795 F.3d 777, 791 (8th

Cir. 2015) (“Limited discovery is sometimes appropriate to resolve the qualified immunity question.”

scope of the issue subject to discovery is narrow.”); Lishu Yin v.

Columbia Int’l Univ., No. 3:15-CV-03656-JMC, 2017 WL

4296428, at *6 (D.S.C. Sept. 28, 2017) (“[T]his matter is referred

. . . for the purpose of developing a scheduling order allowing the

parties to conduct limited discovery to determine whether the

ministerial exception applied to Plaintiff while employed with

Defendant.”); Stabler v. Congregation Emanu-El of the City of

New York, No. 16 CIV. 9601 (RWS), 2017 WL 3268201, at *7

(S.D.N.Y. July 28, 2017) (“The parties will meet and confer with

respect to discovery and motion schedule limited to the

ministerial exception defense.”); Fassl v. Our Lady of Perpetual

Help Roman Catholic Church, No. CIV.A. 05-CV-0404, 2005 WL

2455253, at *1 (E.D. Pa. Oct. 5, 2005) (“During oral argument,

the Court also issued an order, on the record, permitting the

parties to conduct very limited discovery . . . .”); Fratello, 175 F.

Supp. 3d at 161 (observing the Court “directed the parties to

engage in limited discovery on the issue”).

19

(cleaned up)); Robertson v. Lucas, 753 F.3d 606, 623

(6th Cir. 2014) (“Discovery is disfavored in this

context, but ‘limited discovery may sometimes be

necessary before the district court can resolve a

motion for summary judgment based on qualified

immunity.’” (quoting Crawford–El v. Britton, 523 U.S.

574, 593 n.14 (1998))). Given the structural

protections served by the ministerial exception, the

same approach should be taken here.

C. If trial is necessary, courts should

bifurcate trial on the ministerial

exception from trial on the merits.

The use of Rule 56 as the vehicle for determining

the applicability of the ministerial exception freights

the risk that a genuine issue of material fact may exist

that precludes summary judgment on the ministerial

exception. Although amici are unaware of any cases

where this circumstance has arisen, presumably such

factual disputes would be resolved at trial. Under a

proper standard for the ministerial exception, such

occasions will be quite rare. The same reasons that

warrant limited discovery on the ministerial

exception’s application also counsel in favor of a

district court exercising its discretion to order a

separate trial limited to those disputed facts. Fed. R.

Civ. P. 42(b) (allowing courts to order a separate trial

of a separate issue to avoid prejudice and expedite

resolution).

20

D. Orders denying the application of the

ministerial exception should be

immediately appealable under the

collateral-order doctrine.

Where a district court concludes that the

ministerial exception does not apply, such decisions

should be immediately appealable on an interlocutory

basis under the collateral-order doctrine. This Court

has made clear that the litigation process itself may

excessively entangle government, including the

courts, in religion. There is no unringing the bell after

the courts have become excessively entangled in a

religious controversy because they erred in declining

to apply the ministerial exception and dismiss the

case.

Appellate jurisdiction typically arises either from

a district court’s final judgment, 28 U.S.C. § 1291, or

the district court’s certification of an issue for

interlocutory appeal, 28 U.S.C. § 1292(b). A “narrow

and selective” class of orders, however, are appealable

because they meet the requirements of the collateralorder doctrine. Will v. Hallock, 546 U.S. 345, 350

(2006). Appellate jurisdiction is proper over

“collateral” rulings that are sufficiently final and

distinct from the merits to be appealable before a final

judgment. Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949).

The collateral-order doctrine thus contains three

elements: (1) the order conclusively determines the

disputed question, (2) the order resolves an important

issue completely separate from the merits of the

action, and (3) will be effectively unreviewable on

appeal from the final judgment. Johnson v. Jones, 515

U.S. 304, 310 (1995). The Court has found the last

21

element to mean “that failure to review immediately

may well cause significant harm.” Id. at 311.

The ministerial exception meets all three of these

elements. First, a district court’s order conclusively

determines the religious body’s immunity from suit.

Second, the ministerial exception is a First

Amendment issue which is completely separate from

the merits of any employment law claim. Third,

awaiting an appeal from the final judgment will make

the order effectively unreviewable. By that point, the

religious body will have already been subject to a

burdensome discovery, trial, and post-judgment

motions and the judiciary, and thus the government,

will have already impermissibly entangled itself in

ecclesiastical issues.

Here again, qualified immunity provides a useful

analog. See McCarthy v. Fuller, 714 F.3d 971, 975 (7th

Cir. 2013). “[P]retrial orders denying qualified

immunity generally fall within the collateral order

doctrine.” Plumhoff v. Rickard, 572 U.S. 765, 772

(2014). This is because orders denying qualified

immunity “conclusively determine whether the

defendant is entitled to immunity from suit; th[e] ...

issue is both important and completely separate from

the merits of the action, and th[e] question could not

be effectively reviewed on appeal from a final

judgment[.]” Id. Qualified immunity is “effectively lost

if a case is erroneously permitted to go to trial.”

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also

Plumhoff, 572 U.S. at 772 (noting that if an order

denying qualified immunity cannot be reviewed, “the

immunity from standing trial will have been

irretrievably lost.”).

22

The same is true of the ministerial exception. The

harm caused to the defendant by the wrongful denial

of the ministerial exception is the same harm incurred

by the defendant in the qualified immunity context.

The defendant loses the First Amendment protection

against suit, and the protection from a judicial

determination on the religious issue of who should be

an organization’s ministerial employee. While a postjudgment appeal can undo any ultimate judgment, it

cannot restore the protections of the ministerial

exception as guaranteed by the Religion Clauses. The

plaintiff and the court will have already trolled

through the religious organization’s beliefs and

practices. That toothpaste cannot be put back in the

tube.

In Mitchell, 472 U.S. at 526, this Court

determined that a similar partial restoration of

qualified immunity was unacceptable. And in the

context of the ministerial exception, the harm is much

worse. First, the defendant loses constitutional, not

merely common-law, rights. Second, because the

ministerial

exception

protects

against

the

government’s intrusion into quintessential religious

questions—who a religious organization’s ministers

are—the constitutional harm occurs because of the

judicial proceedings. As noted by the Petition, this is

precisely the rationale offered by the courts that have

allowed interlocutory appeal of this issue. See Pet. at

26–27.

Accordingly, an order declining to apply the

ministerial exception should be immediately

appealable under the collateral-order doctrine like

decisions denying qualified immunity.

23

CONCLUSION

For the reasons given above, the Court should

grant the petition for certiorari and clarify the

procedural issues surrounding application of the

ministerial exception.

Respectfully submitted,

MATTHEW T. NELSON

Counsel of Record

CONOR B. DUGAN

DANIEL S. BROOKINS*

KATHERINE G. BOOTHROYD

WARNER NORCROSS + JUDD

LLP

150 Ottawa Avenue NW,

Suite 1500

Grand Rapids, MI 49503

(616) 752-2539

mnelson@wnj.com

*Supervised by principals of

the firm who are members of

the Michigan bar

Counsel for Amici Curiae

March 10, 2023