In the

United States Court of Appeals

For the Seventh Circuit

Nos. 12-2157, 12-2257, 12-2262

KEVIN B. MCCARTHY, et al.,

Plaintiffs-Counterclaim Defendants-Appellants/Appellees,

and

LANGSENKAMP FAMILY APOSTOLATE, et al.,

Counterclaim Defendants-Appellants/Appellees,

v.

PATRICIA ANN FULLER, et al.,

Defendants-Counterclaimants-Appellees/Appellants. 

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:08-cv-00994-WTL-DML—William T. Lawrence, Judge.

SUBMITTED FEBRUARY 8, 2013—DECIDED APRIL 10, 2013

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

POSNER, Circuit Judge. These three interlocutory appeals

arise from a complicated and acrimonious litigation,

charging RICO, trademark, and copyright violations
2 Nos. 12-2157, 12-2257, 12-2262

along with Indiana torts, that has been percolating in

the district court for almost five years. The origins of the

litigation go back to 1956, when Sister Mary Ephrem

(born Mildred Neuzil), a Catholic Sister of the Congregation of the Sisters of the Most Precious Blood of Jesus

(often referred to just as the Congregation of the Sisters

of the Precious Blood), had experienced a series of apparitions of the Virgin Mary, in the course of which

Mary had told Sister Ephrem (according to the latter’s

report): “I am Our Lady of America.” The Archbishop

of Cincinnati (the chapel in which Sister Ephrem experienced the apparitions is, though located in Indiana,

under his authority) was convinced of the truth of her

report of the apparitions, and with his support an

elaborate program of devotions to Our Lady of America

was launched. Our Lady has been credited with healing

sick people who appealed to her for a cure, although

whether either the apparitions or the cures are authentic

has not been ruled on by the Congregation for the

Doctrine of the Faith, the body within the Roman

Catholic hierarchy that is responsible for making such

determinations.

Perhaps inspired by her visions, Sister Ephrem joined

with other sisters within the Congregation of the Sisters

of the Precious Blood in seeking to form a “contemplative

cloister”—a “strictly cloistered house for members of

the [Congregation] who were principally dedicated to a

contemplative life.” In 1965 Pope Paul VI approved the

creation of the cloister, in New Riegel, Ohio, designating

it a “papal enclosure.” (We discuss the possible

relevance of the designation later.) The New Riegel
Nos. 12-2157, 12-2257, 12-2262 3

cloister lasted until at least 1977, when its three

surviving members, including Sister Ephrem and Sister

Mary Joseph Therese, left the Congregation of the Sisters

of the Precious Blood and formed a new congregation

that they called the Contemplative Sisters of the

Indwelling Trinity, dedicated to promoting devotions

to Our Lady of America.

We should pause to explain that although the parties

and the district judge refer to Sister Ephrem and Sister

Therese as “nuns,” this probably is incorrect. Nuns take

what are called solemn vows and live cloistered in convents. Sisters (the full designation is “religious sisters”)

take what are called simple vows—and those were the

vows that both Ephrem and Therese had taken—and

can engage in religious and related work outside of

convents, although, as we said, both sisters chose like

nuns to live the cloistered, convent life. In any event,

like nuns and priests, religious sisters are members of

religious orders. The amicus curiae brief submitted by

the Holy See at our request states that “for the purposes

of this brief, the Holy See will not accord significance

to any distinction between the terms ‘nun’ and ‘sister.’ ”

The Contemplative Sisters of the Indwelling Trinity,

the congregation founded by Sisters Ephrem and

Therese, operates out of Fostoria, Ohio. Sister Ephrem

directed it until her death in 2000. She also founded in

Fostoria, and directed until her death, an organization

that she called Our Lady of America Center. She

registered the name with the state of Ohio as a trade

name. Sister Therese (referred to in the complaint by her
4 Nos. 12-2157, 12-2257, 12-2262

birth name of Patricia Fuller) succeeded to Sister Ephrem’s

direction of the two organizations upon the latter’s death.

Sister Ephrem willed all her property to Sister Therese.

Most of the property—maybe all of it—was related to the

devotions to Our Lady of America and had been bought

with money donated to the Contemplative Sisters or to

the Center. The property included documents, such

as Sister Ephrem’s diary (which Fuller claims Sister

Ephrem had copyrighted, along with a song, a painting,

and sculpture, all relating to Our Lady of America),

and artifacts that included medallions, plaques, and a

statue of Our Lady of America. Sister Therese trademarked a number of the artifacts upon assuming direction of the Contemplative Sisters and the Center.

In 2005 Kevin McCarthy, a lawyer and Catholic

layman, and Albert H. Langsenkamp, who claims

(whether truthfully or not is in dispute) to be a Papal

Knight of the Holy Sepulcher, approached Fuller and

offered to help her with the devotions to Our Lady of

America. She accepted their offer and the three worked

together until 2007, when they had a falling out that

erupted the following year into this bitter lawsuit.

Langsenkamp established the Langsenkamp Family

Apostolate in Rome City, Indiana, the site of the chapel

in which the Virgin Mary is alleged to have appeared

to Sister Ephrem. Vigorously seconded and assisted by

McCarthy, Langsenkamp claims to be the authentic

promoter of devotions to Our Lady of America and to be

entitled to possession of the documents and artifacts.

McCarthy and Langsenkamp brought this suit against

Fuller charging all manner of tortious conduct, including
Nos. 12-2157, 12-2257, 12-2262 5

conversion (theft) of both physical and intellectual property, fraud, and defamation. Fuller counterclaimed vigorously, accusing them of the same things, including theft

of the statue of Our Lady of America and of the website

of Our Lady of America Center, and of defaming her

by calling her a “fake nun.” She joined Langsenkamp’s

Apostolate as an additional counterclaim defendant,

though this was really a third-party claim since the

Apostolate was not a party to the litigation until Fuller

named it as a defendant in her counterclaims. There

are other parties to both the complaint and the counterclaims, but they are peripheral and we can ignore them.

To simplify, we’ll generally refer to just McCarthy as

the plaintiff and Fuller as the defendant-counterclaimant. Both seek damages and equitable relief.

McCarthy argues that not only did he and Langsenkamp not steal property of Fuller, but that the property

in dispute belongs to the Congregation of the Sisters of

the Precious Blood of Jesus because, among other

things, having taken a vow of poverty Sister Ephrem

did not own and so could not bequeath to Fuller any of

the property in question. McCarthy has no authority to

litigate on behalf of the Congregation, but he can

argue that Fuller’s charge that he stole from her fails

because she was the thief.

He contests the claim of defamation by denying

(among other things) that he lied in saying Fuller is not

a nun. Whether or not that’s accurate (given the uncertainty that we noted concerning the precise meaning of

“nun” in the Catholic religion), calling her a “fake nun”
6 Nos. 12-2157, 12-2257, 12-2262

could readily be understood to deny that she had any

religious vocation whatsoever—and in fact McCarthy

does deny this, and obtained from the Apostolic

Nunciature of the Holy See a statement that Fuller is no

longer either a nun or a religious sister. Located in

the Vatican, the Holy See is the central governing body

of the Roman Catholic Church, and the Apostolic

Nunciature is the Holy See’s diplomatic mission to

the United States.

McCarthy asked the district judge to take judicial

notice of (and thus defer to) the Apostolic Nunciature’s

statement of the Holy See’s ruling on Fuller’s status in

the Church. McCarthy’s ground was that the court,

being a secular body, could not reexamine the Holy

See’s ruling but must accept it as authoritative. The

judge refused, precipitating appeal No. 12-2257, the

only appeal we need to consider at length.

The appeal is interlocutory, but is within our appellate jurisdiction under the collateral order doctrine

declared in Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541, 546-47 (1949) (Jackson, J.). The doctrine allows

an interlocutory appeal that challenges a lower-court

ruling (final in that court—rather than a tentative

order that the district judge might decide to revisit in the

course of the litigation) that will harm the appellant

irreparably if the challenge is postponed to an appeal

from the final judgment, and that can be adjudged

correct or incorrect without a further evidentiary hearing.

Conventional formulations of the doctrine typically

add another requirement: that the ruling sought to be
Nos. 12-2157, 12-2257, 12-2262 7

appealed have “resolve[d] an important issue completely separate from the merits of the action.” Will v.

Hallock, 546 U.S. 345, 349 (2006) (emphasis added). But

“completely” is an overstatement, since the principal

current application of the doctrine is to appeals from

denials of official immunity. See, e.g., Mitchell v. Forsyth,

472 U.S. 511, 525-30 (1985); Apostol v. Gallion, 870 F.2d

1335, 1338 (7th Cir. 1989). Like the protection conferred

on criminal defendants by the double jeopardy clause,

United States v. Kashamu, 656 F.3d 679, 682 (7th Cir. 2011),

or on foreign governments by sovereign immunity,

Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 667 (7th

Cir. 2012), the immunity conferred by the doctrine of

official immunity is immunity from the travails of a

trial and not just from an adverse judgment. If the

defense of immunity is erroneously denied and the defendant has to undergo the trial before the error is corrected he has been irrevocably deprived of one of the

benefits—freedom from having to undergo a trial—that

his immunity was intended to give him. That satisfies

the requirement that to be appealable as a collateral

order the order must (unless reversed) wreak irreparable

harm on the appellant.

Now often the question of immunity concerns the

same conduct of the defendant that the suit challenges

as unlawful, rather than being “completely separate.”

That may be why the issue of immunity is required only

to be “conceptually distinct” from the merits, Mitchell

v. Forsyth, supra, 472 U.S. at 527, rather than literally

“completely separate” from them. As the Court explained

in that case, if “any factual overlap between a collateral
8 Nos. 12-2157, 12-2257, 12-2262

issue and the merits of the plaintiff’s claim is fatal to a

claim of immediate appealability, none of these matters

could be appealed, for all of them require an inquiry into

whether the plaintiff’s (or, in the double jeopardy

situation, the Government’s) factual allegations state a

claim that falls outside the scope of the defendant’s

immunity. There is no distinction in principle between

the inquiry in such cases and the inquiry where the

issue is qualified immunity . . . . [M]eritorious double

jeopardy and absolute immunity claims are necessarily

directly controlling of the question whether the

defendant will ultimately be liable. Indeed, if our

holdings on the appealability of double jeopardy and

absolute immunity rulings make anything clear it is

that the fact that an issue is outcome determinative

does not mean that it is not ‘collateral’ for purposes

of the Cohen test.” Id. at 529 n. 10. We add the further

condition that the error be determinable without an

evidentiary hearing simply as a reminder that appellate

courts don’t conduct such hearings.

The conditions for collateral order review are

satisfied with respect to appeal No. 12-2257. The district

judge’s ruling challenged by the plaintiffs is closely akin

to a denial of official immunity. A secular court may

not take sides on issues of religious doctrine. HosannaTabor Evangelical Lutheran Church & School v. EEOC, 132

S. Ct. 694, 702-07 (2012); Serbian Eastern Orthodox Diocese

v. Milivojevich, 426 U.S. 696, 708-20 (1976); Kedroff v. St.

Nicholas Cathedral, 344 U.S. 94, 115-16 (1952); Askew v.

Trustees of General Assembly of Church of the Lord Jesus Christ

of the Apostolic Faith Inc., 684 F.3d 413, 415 (3d Cir. 2012).
Nos. 12-2157, 12-2257, 12-2262 9

The district judge in this case has ruled that a

federal jury shall decide whether Patricia Fuller is a

member of a Roman Catholic religious order, though if

the jury decides that she is it will be rejecting the

contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters.

A secular court must be allowed to decide, however,

whether a party is correct in arguing that there is an

authoritative church ruling on an issue, a ruling that

removes the issue from the jurisdiction of that court.

Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039

(7th Cir. 2006); Serbian Eastern Orthodox Diocese v.

Milivojevich, supra, 426 U.S. at 715-16 and n. 9; Steffen N.

Johnson, “Expressive Association and Organizational

Autonomy,” 85 Minn. L. Rev. 1639, 1650 (2001). (One of

our holdings in Tomic was disapproved in the HosannaTabor case, but the disapproved holding is unrelated to

the holding for which we just cited Tomic.) But once

the court has satisfied itself that the authorized religious

body has resolved the religious issue, the court may

not question the resolution.

It is true that the error of the secular court—of the

district court in this case—in deciding that whether

Fuller is a member of a religious order is a proper

question to put to a jury, allowing the jury to disregard

the ruling by the Holy See, can in principle be corrected

on appeal from a final judgment. But practice and

principle are likely to diverge in this case. Suppose the

religious question on which the jury was (wrongly) allowed to rule turned out not to be germane to the
10 Nos. 12-2157, 12-2257, 12-2262

appeal, or that there was no appeal. Then there would

be a final judgment of a secular court resolving a

religious issue. Such a judgment could cause confusion,

consternation, and dismay in religious circles. The commingling of religious and secular justice would violate

not only the injunction in Matthew 22:21 to “render unto

Caesar the things which are Caesar’s, and unto God the

things that are God’s,” but also the First Amendment,

which forbids the government to make religious judgments. The harm of such a governmental intrusion into

religious affairs would be irreparable, just as in the

other types of case in which the collateral order

doctrine allows interlocutory appeals.

That no religious institution is a party to this case is of

no moment. McCarthy is asking us to reverse a district

judge’s ruling that if it stands will require a jury to

answer a religious question. (He has standing to challenge the ruling because it bears directly on his claim.)

Religious questions are to be answered by religious

bodies. So we asked the Holy See to advise us on the

matter, and in response it has filed a 51-page amicus

curiae brief which concludes that Fuller, since leaving

the Congregation of the Sisters of the Precious Blood

in 1979 (or at the very latest since 1983), has not been a

member of any religious organization recognized by

the Holy See. She is not a nun (she may never have been

one, as we noted earlier), not a member of the Catholic

Sisterhood or of any Catholic religious order, and not

entitled under Catholic law to call herself Sister Therese.

As the Holy See’s brief explains, Fuller had become a

member of the Congregation of the Sisters of the Precious
Nos. 12-2157, 12-2257, 12-2262 11

Blood in 1965, entering the contemplative cloister that

we mentioned earlier. In 1970 she professed perpetual

vows of poverty, chastity, and obedience. But in 1977 the

Superior General of the Congregation ordered her to

take a leave of absence from the cloister for at least a

year because of her “seeming satisfaction with minimum

spiritual growth and . . . overconcern for externals and

physical comfort and niceness,” “efforts to control and

dominate over the other members of the community,” and

“disregard for congregational policies and procedures.”

Four days later she and two other sisters, including

Sister Ephrem, petitioned the Superior General for “separation” from the Congregation. They wanted to form

their own community—the Contemplative Sisters of the

Indwelling Trinity—and went ahead and did so.

The Holy See rejected their petition for separation

the following year, on the ground that three was “too

small [a number of sisters] for a well-formed community”

and in addition that their proposal for the new community “lack[ed] the distinctive charism [calling or aptitude for a religious career] and way of life required for

the approval of a religious institute.” However, the

Holy See reminded the Congregation of the Sisters of

the Precious Blood that the sisters could petition for

“exclaustration,” which means permission to live outside

a cloister while remaining a member of a religious order,

in this case the Congregation of the Sisters of the Precious

Blood. Sister Therese petitioned in 1979 for a one-year

exclaustration, which was granted, as was her petition

the following year for a second one-year exclaustration.

But the Holy See told her there would be no further
12 Nos. 12-2157, 12-2257, 12-2262

extensions—that when the second one expired she

would either have to return to the Congregation of the

Sisters of the Precious Blood “and live fully under obedience to the superior general,” or have to “request a

dispensation from your vows and separate yourself

from your Congregation.” The Holy See gave her till

May 31, 1981, to decide. She did not respond, and the

following year the Holy See, at the request of the Congregation, dispensed her from her vows and dismissed her

from the Congregation on the ground of “incorrigible

disobedience.” A year later the Holy See advised the

Congregation that Fuller “has not made any recourse, so

the case is closed.”

So matters stood until 2008, when a bishop of the

diocese in which Fostoria is located wrote Fuller—apparently at McCarthy’s prompting—inquiring about her

“state of life in the Church.” She replied to the bishop

that she remained a member of a religious order under

canon law, presumably referring to the Contemplative

Sisters of the Indwelling Trinity. Unpersuaded, the

bishop issued a statement in which he said that Fuller

“is not a member of a canonical institute of consecrated

life, having been dismissed from the Society of the

Precious Blood community in 1982.”

Three years later the Congregation for Institutes of

Consecrated Life, the branch of the Holy See responsible

for supervision of “religious Institutes,” a category that

would include both the Congregation of the Sisters of

the Precious Blood and the Contemplative Sisters of the

Indwelling Trinity, endorsed the following declara-
Nos. 12-2157, 12-2257, 12-2262 13

tion by Archbishop Joseph W. Tobin—the Archbishop

Secretary of the Congregation for Institutes of Consecrated

Life: “Miss Patricia Ann Fuller is not a member of any

religious Institute, formally recognized by the Catholic

Church.” In March 2012 the Apostolic Nunciature, speaking for the Holy See, confirmed the authority of the archbishop’s declaration and requested “that the United

States of America and its courts accord full faith and

credit to” it.

The question of Fuller’s religious status relates to

several issues in the litigation. We mentioned her allegation that McCarthy defamed her by calling her a “fake

nun,” while as part of his claim of fraud he alleges that

she misrepresented herself as being a nun and living in

a convent. She challenges the Holy See’s rulings with

the claim that she professed “private vows” back in 1979

and as a result of these vows has “remain[ed] a permanently professed religious sister of the Catholic Church,

in private vow, to the present day.” She argues that even

if she was dismissed from her congregation she is

entitled to refer to herself as a sister because the term

may be used by a lay person who takes a private vow.

The Catholic Church rejects the argument. The Holy

See’s brief states that “Fuller was neither a nun nor a

sister in the Catholic Church once she was dispensed

from her religious vows and dismissed from her

religious order on August 11, 1982.”

Fuller also argues that the Contemplative Sisters of the

Indwelling Trinity, as the successor to the contemplative

cloister established in 1963, is a papal enclosure, a term
14 Nos. 12-2157, 12-2257, 12-2262

that usually denotes a strictly cloistered existence, as

of a nun. But once again, insofar as she is simply disagreeing with the Holy See’s denial that she is a nun

or a sister, the federal judiciary has no authority to entertain the argument. She further argues that Archbishop

Tobin’s ruling that Fuller has belonged to no Catholic

religious order since her expulsion from the Congregation

of the Sisters of the Precious Blood was based on

forged documents submitted to him by McCarthy—who

indeed, she claims, has been engaged in an orgy of

forgery in his effort to place control over all devotions

to Our Lady of America in the hands of Langsenkamp’s

Apostolate. But again this argument cannot prevail in

the face of the Holy See’s ruling, communicated to us

by the amicus curiae brief.

Yet the district judge, rejecting McCarthy’s motion to

take judicial notice of Archbishop Tobin’s ruling on

Fuller’s religious status, said that McCarthy hadn’t demonstrated that either the archbishop or the Congregation

for Institutes of Consecrated Life “has the authority to

make any such ‘decision,’ ” that is, a decision regarding

Fuller’s religious status. Later, after the Apostolic

Nunciature’s statement, confirming the archbishop’s

ruling, in March 2012, he said that “because the

Catholic Church is not a party to this case, . . . if the

jury ultimately decides that Fuller is a Catholic nun,

that decision simply will not affect the Catholic Church

in any way.” He added “that the determination set forth in

the [archbishop’s] Declaration was not made as a result

of an adjudication made for religious or church

governance purposes.” The judge also noted disapprov-
Nos. 12-2157, 12-2257, 12-2262 15

ingly that it was McCarthy who had requested the archbishop to declare Fuller’s religious status.

In other words, the judge neither could see how the

Catholic Church could be harmed by allowing a jury to

determine Fuller’s religious status nor was satisfied that

the Church’s determination was valid, in the sense of

being both consistent with canon law and procedurally

regular. The judge’s first reason was, as we said,

erroneous; submitting the question of Fuller’s religious

status to a jury would undermine the authority and

autonomy of the Church. His second reason—his concern

with validity—has been laid to rest by the amicus curiae

brief, which the judge didn’t have the benefit of. The

brief is the unquestionably authentic statement of the

Holy See. In it the Holy See has spoken, laying to rest

any previous doubts: Fuller has not been a member of

any Catholic religious order for more than 30 years.

Period. The district judge has no authority to question

that ruling. A jury has no authority to question it. We

have no authority to question it.

All that this means, however, so far as the litigation

is concerned, is that Fuller’s religious status is no longer

a litigable issue. She is not a member of any Catholic

religious order, and hasn’t been since 1983 at the latest,

when she exhausted her remedies within the Church by

failing to seek “recourse” from her expulsion by the

Holy See from the Congregation of the Sisters of the

Precious Blood. At any point in the trial or other proceedings at which her religious status becomes relevant

to a legal issue, the judge must instruct the lawyers, and
16 Nos. 12-2157, 12-2257, 12-2262

if there is a jury the jurors as well, that the Roman

Catholic Church has determined that Fuller has not been

a member of any Catholic religious order since 1983 at

the latest; that she is not a nun or a sister and does not

live in a convent, cloister, or other religious property

owned or used by the Church; and that these rulings by

the Church may not be questioned in the litigation.

What bearing the rulings have on particular charges

and countercharges is for the district court to decide in

the first instance. Obviously it is relevant to the plaintiff’s charge of fraud, though not necessarily determinative, as Fuller may try to prove that she believed, albeit

erroneously, that she remained a sister after her expulsion by the Congregation of the Sisters of the Precious

Blood. But she will not be permitted to argue or offer

evidence that she is a sister. The Holy See’s ruling has

removed that issue from the litigation.

This completes our analysis of the principal appeal.

We turn briefly to the other two appeals. One of them

(No. 12-2157) is really two appeals. It challenges the

district judge’s denial of McCarthy’s motion for a stay

pending resolution of a petition to the Holy See asking it

to determine that the disputed property belongs to the

Church, rather than to Fuller, because of Sister Ephrem’s

vow of poverty. That challenge became moot when the

Holy See declined to decide who owned the disputed

property, and so dismissed the petition.

But the appeal also challenges the judge’s denial of a

motion by McCarthy for partial summary judgment

that the district court “lacks jurisdiction to make or con-
Nos. 12-2157, 12-2257, 12-2262 17

duct a factual inquiry into the status/ownership of ecclesiastical property.” The district judge denied the motion

on the ground that the property dispute can be resolved

without getting into religious questions. That may

indeed be possible. Conceivably the court might hold,

for example, that even if Fuller obtained title to the property in question (the religious artifacts, etc.) upon

Sister Ephrem’s death, she cannot prove conversion

because (McCarthy may be able to prove) she voluntarily

gave the property to McCarthy and Langsenkamp. The

Holy See’s brief expresses doubt that resolution of the

property disputes will entangle the district court in

religious issues, and if they will not there is no basis for

renouncing judicial jurisdiction over the disputes. See

Jones v. Wolf, 443 U.S. 595, 604 (1979); Presbytery of Ohio

Valley, Inc., v. OPC, Inc., 973 N.E. 2d. 1099, 1105-07

(Ind. 2012); Serbian Orthodox Church Congregation of St.

Demetrius v. Kelemen, 256 N.E. 2d 212, 216-17 (Ohio

1970). Unless and until such entanglement looms, there

is no basis for the relief sought by McCarthy; and so

we dismiss appeal No. 12-2157 as premature.

The remaining appeal, No. 12-2262, filed by Fuller,

seeks to overturn some of the district judge’s rulings.

These are not final rulings and Fuller did not obtain a

Rule 54(b) certification authorizing an interlocutory

appeal. Nor is there any other basis for jurisdiction

over the appeal.

So, to conclude, the district court’s denial of McCarthy’s

motion that the court take judicial notice of the Holy See’s

rulings on Fuller’s status in the Church—the denial
18 Nos. 12-2157, 12-2257, 12-2262

appealed from in appeal No. 12-2257—is reversed, with

a reminder to the district court that federal courts

are not empowered to decide (or to allow juries to decide) religious questions. The other two appeals are

dismissed.

4-10-13