PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GREGORY TUCKER, 

 Plaintiff - Appellee, 

v. 

FAITH BIBLE CHAPEL 

INTERNATIONAL, d/b/a Faith Christian 

Academy, Inc., 

 Defendant - Appellant. 

------------------------------------ 

EUGENE VOLOKH; ROBERT J. 

PUSHAW; RICHARD W. GARNETT; 

ROBERT COCHRAN; ELIZABETH A. 

CLARK; THE ASSOCIATION OF 

CHRISTIAN SCHOOLS 

INTERNATIONAL; THE COLORADO 

CATHOLIC CONFERENCE; 

RELIGIOUS LIBERTY SCHOLARS; 

JEWISH COALITION FOR RELIGIOUS 

LIBERTY; PROFESSOR ASMA UDDIN; 

NATIONAL WOMEN’S LAW CENTER; 

AMERICAN FEDERATION OF STATE, 

COUNTY AND MUNICIPAL 

EMPLOYEES; AMERICAN SEXUAL 

HEATH ASSOCIATION; CALIFORNIA 

WOMEN LAWYERS; DC COALITION 

AGAINST DOMESTIC VIOLENCE; 

DESIREE ALLIANCE; EQUAL RIGHTS 

ADVOCATES; EQUALITY 

CALIFORNIA; EQUITY FORWARD; 

FORGE, INC.; GLBTQ LEGAL 

ADVOCATES & DEFENDERS; HUMAN 

No. 20-1230 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 7, 2022

Christopher M. Wolpert 

Clerk of Court

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RIGHTS CAMPAIGN; IN OUR OWN 

VOICE; NATIONAL BLACK WOMEN’S 

REPRODUCTIVE JUSTICE AGENDA; 

KWH LAW CENTER FOR SOCIAL 

JUSTICE AND CHANGE; 

LATINOJUSTICE PRLDEF; LEGAL AID 

AT WORK; LEGAL VOICE; MUSLIMS 

FOR PROGRESSIVE VALUES; NARAL 

PRO-CHOICE AMERICA; NATIONAL 

ASIAN PACIFIC AMERICAN 

WOMEN’S FORUM; NATIONAL 

ASSOCIATION OF SOCIAL WORKERS; 

NATIONAL COALITION AGAINST 

DOMESTIC VIOLENCE; NATIONAL 

ORGANIZATION FOR WOMEN 

FOUNDATION; NEW YORK LAWYERS 

FOR THE PUBLIC INTEREST; PEOPLE 

FOR THE AMERICAN WAY 

FOUNDATION; RELIGIOUS 

COALITION FOR REPRODUCTIVE 

CHOICE; REPRODUCTIVE JUSTICE 

ACTION COLLECTIVE; SERVICE 

EMPLOYEES INTERNATIONAL 

UNION; SPARK REPRODUCTIVE 

JUSTICE NOW!, INC.; UJIMA INC.; 

THE NATIONAL CENTER ON 

VIOLENCE AGAINST WOMEN IN THE 

BLACK COMMUNITY; WOMEN 

EMPLOYED; WOMEN LAWYERS ON 

GUARD INC.; WOMEN’S BAR 

ASSOCIATION OF THE DISTRICT OF 

COLUMBIA; WOMEN’S BAR 

ASSOCIATION OF THE STATES OF 

NEW YORK; WOMEN’S INSTITUTE 

FOR FREEDOM OF THE PRESS; THE 

WOMEN’S LAW CENTER OF 

MARYLAND; WOMAN’S LAW 

PROJECT; WV FREE, CIVIL RIGHTS 

EDUCATION AND ENFORCEMENT 

CENTER; NATIONAL EMPLOYMENT 

LAWYERS ASSOCIATION; THE 

EMPLOYEE RIGHTS ADVOCACY 

INSTITUTE FOR LAW & POLICY, AND 

Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2
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THE INSTITUTE FOR 

CONSTITUTIONAL ADVOCACY AND 

PROTECTION, 

 Amici Curiae. 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:19-CV-01652-RBJ-STV)

_________________________________ 

Daniel H. Blomberg (Daniel D. Benson and Christopher Mills, The Becket Fund for 

Religious Liberty, Washington, D.C., and Christopher J. Conant and Robert W. Hatch, 

Hatch Ray Olsen Conant LLC, Denver, Colorado, with him on the briefs), The Becket 

Fund for Religious Liberty, Washington, D.C. for Defendant-Appellant. 

Bradley Girard (Richard B. Katskee, Americans United for Separation of Church and 

State, and Bradley A. Levin, Jeremy A. Sitcoff, and Peter G. Friesen, Levin Sitcoff, PC, 

Denver, CO, with him on the brief), Americans United for Separation of Church and 

State, Washington, D.C., for Plaintiff-Appellee. 

_________________________________ 

Before BACHARACH, EBEL, and McHUGH, Circuit Judges. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

This appeal presents a single jurisdictional issue: Whether Appellant Faith 

Bible Chapel International can bring an immediate appeal under the collateral order 

doctrine challenging the district court’s interlocutory decision to deny Faith summary 

judgment on its affirmative “ministerial exception” defense. Faith operates a school, 

Faith Christian Academy (“Faith Christian”). Plaintiff Gregory Tucker, a former 

high school teacher and administrator/chaplain, alleges Faith Christian fired him in 

violation of Title VII (and Colorado common law) for opposing alleged race 

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discrimination at the school. As a religious employer, Faith Christian generally must 

comply with anti-discrimination employment laws. But under the affirmative 

“ministerial exception” defense, those anti-discrimination laws do not apply to 

employment disputes between a religious employer and its ministers. Here, Faith 

Christian defended against Tucker’s race discrimination claims by asserting that he 

was a “minister” for purposes of the exception. 

The Supreme Court deems the determination of whether an employee is a 

“minister” to be a fact-intensive inquiry that turns on the particular circumstances of 

a given case. Here, after permitting limited discovery on only the “ministerial 

exception,” the district court ruled that, because there are genuinely disputed material 

facts, a jury would have to resolve whether Tucker was a “minister.” Summary 

judgment for Faith Christian, therefore, was not warranted. Faith Christian 

immediately appealed that decision, seeking to invoke our jurisdiction under the 

collateral order doctrine. 

The Supreme Court has stated time and again that the collateral order doctrine 

permits a narrow exception to the usual 28 U.S.C. § 1291 requirement that we only 

review appeals taken from final judgments entered at the end of litigation. In 

deciding whether the collateral order doctrine permits immediate appeals from the 

category of orders at issue here—orders denying summary judgment on the 

“ministerial exception” because there remain disputed issues of material fact—we 

must weigh the benefit of an immediate appeal against the cost and disruption of 

allowing appeals amid ongoing litigation. After conducting that balancing, we 

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determine that we do not have jurisdiction to consider this interlocutory appeal. 

Instead, we conclude the category of orders at issue here can be adequately reviewed 

at the conclusion of litigation. 

In deciding that we lack jurisdiction, we reject Faith Christian’s arguments, 

which the dissent would adopt. Faith Christian seeks to justify an immediate appeal 

first by making the novel argument that the “ministerial exception” not only protects 

religious employers from liability on a minister’s employment discrimination claims, 

but further immunizes religious employers altogether from the burdens of even 

having to litigate such claims. In making this argument, Faith Christian deems the 

“ministerial exception” to be a semi-jurisdictional “structural” limitation on courts’ 

authority to hear Title VII claims. On that basis, Faith Christian then draws an 

analogy between the decision to deny Faith Christian summary judgment on its 

“ministerial exception” defense and those immediately appealable decisions to deny 

government officials qualified immunity from suit under 42 U.S.C. § 1983. 

We reject both steps of Faith Christian’s argument. The Supreme Court has 

made clear that the “ministerial exception” is an affirmative defense to employment 

discrimination claims, rather than a jurisdictional limitation on the authority of courts 

to hear such claims. Further, the “ministerial exception” is not analogous to qualified 

immunity available to government officials. The Supreme Court has only permitted 

immediate appeals from the denial of qualified immunity when the issue presented 

for appeal is one of law, not fact. Here, on the other hand, the critical question for 

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purposes of the “ministerial exception” is the fact-intensive inquiry into whether 

Tucker was a minister. 

Moreover, the reason that the Supreme Court permits immediate appeals from 

the denial of qualified immunity is to protect, not individual government officials, 

but rather the public’s interest in a functioning government. That public interest is 

not present when a private religious employer seeks to avoid liability under Title VII 

from employment discrimination claims. 

Faith Christian’s (and the dissent’s) argument for application of the collateral 

order doctrine here contradicts several well-established lines of Supreme Court 

precedent establishing that 

- the question of whether an employee is a minister is a fact-intensive inquiry, 

rather than a legal determination, see Our Lady of Guadalupe Sch. v. 

Morrissey-Berru, 140 S. Ct. 2049, 2066–67 (2020); 

- the collateral order doctrine applies only narrowly, usually to review legal, 

rather than factual, determinations, see Johnson v. Jones, 515 U.S. 304, 307, 

309–10, 313–18 (1995); 

- qualified immunity protects only government officials, see Wyatt v. Cole, 

504 U.S. 158, 167–68 (1992), not private religious employers; and 

- the “ministerial exception” is an affirmative defense, not a limitation on 

courts’ authority to hear Title VII cases, see Hosanna-Tabor Evangelical 

Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012). 

 We cannot, and should not, ignore these well-established lines of Supreme 

Court precedent and, therefore, we reject Faith Christian’s (and the dissent’s) 

arguments for application of the collateral order doctrine here. We conclude, instead, 

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that we lack jurisdiction over this interlocutory appeal and, therefore, DISMISS this 

appeal. 

I. BACKGROUND

A. Relevant Facts 

Faith Christian Academy is a Christian school offering Bible-based education 

from kindergarten through high school. The students and staff come from a wide 

array of religious perspectives. 

Tucker began teaching high school science at the school in 2000. Later he also 

taught courses entitled “Leadership” and “Worldviews and World Religions.” In 

2014, Faith Christian hired Tucker for the additional job of chaplain, a position also 

referred to as the Director of Student Life. In 2017, Tucker was assigned the 

additional task of planning Faith Christian’s weekly “Chapel Meetings.” 

 In January 2018, Tucker conducted a chapel meeting—he calls it a 

symposium—on race and faith. Although Faith Christian initially congratulated 

Tucker on the presentation, that presentation was not well-received by some parents 

and students. As a result, the school relieved Tucker of his duties preparing and 

conducting weekly chapel meetings and soon thereafter removed him from his 

position as Director of Student Life. At the end of February 2018, the school also 

fired him from his teaching position. 

B. Procedural Posture 

Tucker filed a complaint with the Equal Employment Opportunity Commission 

and, after receiving a right-to-sue letter, sued Faith Christian. Tucker asserted two 

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causes of action relevant here: 1) a claim under Title VII of the Civil Rights Act of 

1964, alleging that the school fired him in retaliation for opposing a racially hostile 

environment; and 2) a Colorado common law claim for wrongful termination in 

violation of public policy.1

 

At the outset of this litigation, Faith Christian moved to dismiss the action 

under Fed. R. Civ. P. 12(b)(6), asserting the “ministerial exception.” The exception 

is rooted in the First Amendment, which “bar[s] the government from interfering 

with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor, 

565 U.S. at 181; see also Our Lady, 140 S. Ct. at 2060–61. The “ministerial 

exception” is “not a jurisdictional bar” that might abort the traditional judicial 

process. Hosanna-Tabor, 565 U.S. at 195 n.4. Instead, it “operates as an affirmative 

defense to an otherwise cognizable claim . . . because the issue presented by the 

exception is ‘whether the allegations the plaintiff makes entitle him to relief,’ not 

whether the court has ‘power to hear [the] case.’” Id. (quoting Morrison v. Nat’l 

Australia Bank Ltd., 561 U.S. 247, 254 (2010)). 

Because it is well established that a religious employer does not “enjoy a 

general immunity from secular laws,” Our Lady, 140 S. Ct. at 2060, the “ministerial 

exception” does not preclude discrimination claims brought by a religious employer’s 

non-ministerial employees. See, e.g., Rayburn v. Gen. Conf. of Seventh-Day 

Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) (recognizing Title VII applies to a 

1

 Tucker also asserted a claim under Title VI of the 1964 Civil Rights Act, which the 

district court dismissed. That dismissal is not at issue in this appeal. 

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religious institution’s “secular employment decisions”), cited favorably in 

Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238, 1245–46 (10th Cir. 2010). 

The “ministerial exception” is triggered only when the plaintiff-employee in a Title 

VII case qualifies as a “minister.” 

Here, Faith Christian asserted its affirmative “ministerial exception” defense in 

a Rule 12(b)(6) motion to dismiss, but the district court converted that motion into 

one for summary judgment under Fed. R. Civ. P. 56. The court then permitted 

limited discovery only on the questions of whether Faith Christian is a religious 

employer entitled to assert the “ministerial exception” and whether Tucker qualified 

as a minister. After the parties addressed those questions, the district court denied 

Faith Christian summary judgment, ruling that, while Faith Christian could assert the 

“ministerial exception,” the question of “whether Mr. Tucker was a ‘minister’ within 

the meaning of the ‘ministerial exception’ is genuinely disputed on the evidence 

presented.” (Aplt. App. 284; see also id. (stating “that there is a genuine dispute of 

material fact as to whether Mr. Tucker was a ‘minister’”).) The district court later 

denied Faith Christian’s motion for reconsideration.2

 Faith Christian immediately 

2

 There are at least three questions underlying the determination of whether the 

“ministerial exception” applies in a given case: 1) Is the employer a religious 

organization entitled to assert the “ministerial exception” defense? 2) Is the employee 

a “minister”? And 3) is the claim that the employee is asserting against the employer 

the type of claim that is subject to the “ministerial exception”? As to the first 

question, Tucker does not challenge on appeal the district court’s ruling that Faith 

Christian could invoke the “ministerial exception.” It is the second question—

whether Tucker qualifies as a “minister—that is the subject of this appeal. As to the 

third question, no one disputes that Tucker’s Title VII and state law wrongful 

discharge claims are subject to the “ministerial exception.” See Puri v. Khalsa, 844 

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appealed both decisions, invoking our jurisdiction under 28 U.S.C. § 1291 based on 

the collateral order doctrine.3

 

II. DISCUSSION 

This case presents an important jurisdictional question of first impression for 

this Court: whether a decision denying a religious employer summary judgment on its 

“ministerial exception” defense constitutes an immediately appealable final order 

under the collateral order doctrine. Ultimately, we answer that question in the 

negative and conclude we lack appellate jurisdiction to consider this interlocutory 

appeal. 

In reaching that conclusion, we: (A) address the scope of this appeal, which 

involves the “ministerial exception”; (B) discuss general collateral-order-doctrine 

principles, the only justification Faith Christian invokes in support of its 

interlocutory appeal; and (C) apply those collateral-order principles to the category of 

F.3d 1152, 1158 (9th Cir. 2017) (recognizing “ministerial exception” applies to state 

law causes of action “that would otherwise impinge on the church’s prerogative to 

choose its ministers or to exercise its religious beliefs in the context of employing its 

ministers.” (quoting Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 950 

(9th Cir. 1999))); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 836 (6th 

Cir. 2015) (holding “ministerial exception can be asserted as a defense against state law 

claims”). 

 

3

 Faith Christian has not invoked 28 U.S.C. § 1292(b), which permits a litigant to ask 

the district court to certify that the interlocutory “order involves a controlling 

question of law as to which there is substantial ground for difference of opinion and 

that an immediate appeal from the order may materially advance the ultimate 

termination of the litigation.” 

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orders at issue here, orders denying summary judgment on the “ministerial 

exception” defense. 

A. The Scope of This Appeal 

We first review what is at issue in this appeal—and what is not. Namely, this 

appeal involves only Faith Christian’s affirmative defense under the “ministerial 

exception,” not a defense under the broader church autonomy doctrine. Although the 

two defenses share a common heritage, they are distinct defenses; we constrain our 

analysis here to the “ministerial exception.” We begin by reviewing the similarities 

and differences between the two defenses. 

1. The “Ministerial Exception” and the Church Autonomy Doctrine 

Both defenses are grounded in the First Amendment, which 

protect[s] the right of churches and other religious institutions to decide 

matters “‘of faith and doctrine’” without government intrusion. 

Hosanna-Tabor, 565 U.S. at 186 (quoting Kedroff [v. St. Nicholas 

Cathedral of Russian Orthodox Church], 344 U.S. [94,] 116 [(1952)]). . . . 

The independence of religious institutions in matters of “faith and 

doctrine” is closely linked to independence in what we have termed 

“‘matters of church government.’” [Hosanna-Tabor,] 565 U.S. at 186. 

This does not mean that religious institutions enjoy a general immunity 

from secular laws, but it does protect their autonomy with respect to 

internal management decisions that are essential to the institution’s 

central mission. And a component of this autonomy is the selection of the 

individuals who play certain key roles. 

Our Lady, 140 S. Ct. at 2060. 

The “ministerial exception” is a narrower offshoot of the broader church 

autonomy doctrine; it only precludes employment discrimination claims brought by a 

“minister” against his religious employer. 

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[A] church’s independence on matters “of faith and doctrine” requires the 

authority to select, supervise, and if necessary, remove a minister without 

interference by secular authorities. Without that power, a wayward 

minister’s preaching, teaching, and counseling could contradict the 

church’s tenets and lead the congregation away from the faith. The 

ministerial exception was recognized to preserve a church’s independent 

authority in such matters. 

Id. at 2060–61 (footnote omitted); see also Hosanna-Tabor, 565 U.S. at 196. The 

“ministerial exception,” then, is an exception to employment discrimination laws 

which would otherwise apply to a religious employer when the employment dispute 

involves a minister. 

Like the church autonomy doctrine, the “ministerial exception” “operates as an 

affirmative defense to an otherwise cognizable claim.” Hosanna-Tabor, 565 U.S. at 

195 n.4. While these defenses are related, the threshold question for determining 

when they apply differs. “Before the church autonomy doctrine is implicated, a 

threshold inquiry is whether the alleged misconduct is ‘rooted in religious belief.’” 

Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 657 (10th Cir. 

2002) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)). The “ministerial 

exception,” on the other hand, applies in one sense more broadly because it applies 

regardless of whether the dispute is rooted in religious belief, but the exception also 

applies more narrowly only to employment discrimination claims asserted by a 

minister. See id. at 654 n.2. The threshold determination for applying the 

“ministerial exception” is whether the plaintiff-employee qualifies as a “minister.” 

See id. 

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The Supreme Court has made clear, in both Hosanna-Tabor and Our Lady, that 

this threshold determination of whether an employee is a “minister” for purposes of 

the “ministerial exception” requires a fact-intensive inquiry into the specific 

circumstances of a given case. See Our Lady, 140 S. Ct. at 2067 (“call[ing] on courts 

to take all relevant circumstances into account and to determine whether each 

particular position implicated the fundamental purpose of the exception”); see also id. 

at 2063 (stating that, “[i]n determining whether a particular position falls within the 

Hosanna-Tabor exception, a variety of factors may be important.”); id. at 2066 

(noting that in Our Lady “[t]here is abundant record evidence that [the 

plaintiffs-employees] both performed vital religious duties,” discussing that evidence 

at length); Hosanna-Tabor, 565 U.S. at 190–94 (considering, in significant detail, “all 

the circumstances of [the employee’s] employment”). 

Following those Supreme Court decisions, a number of circuit courts have also 

recognized the fact-intensive nature of this inquiry. See Grussgott v. Milwaukee 

Jewish Day Sch., Inc., 882 F.3d 655, 657–58 (7th Cir. 2018) (per curiam) (stating 

that “whether Grussgott’s role as a Hebrew teacher can properly be considered 

ministerial is subject to a fact-intensive analysis” required by Hosanna-Tabor); 

Fratello v. Archdiocese, 863 F.3d 190, 206–10 (2d Cir. 2017) (conducting 

fact-intensive inquiry into whether employee was a minister); Cannata v. Catholic 

Diocese, 700 F.3d 169, 176 (5th Cir. 2012) (noting that “the Hosanna-Tabor Court 

engaged in a fact-intensive inquiry and explicitly rejected the adoption of a ‘rigid 

formula’ or bright-line test”); E.E.O.C. v. Roman Catholic Diocese, 213 F.3d 795, 

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801 (4th Cir. 2000) (pre-Hosanna-Tabor) (“While the ministerial exception promotes 

the most cherished principles of religious liberty, its contours are not unlimited and 

its application in a given case requires a fact-specific inquiry.”); see also Clement v. 

Roman Catholic Diocese, No. CV 16-117 Erie, 2017 WL 2619134, at *4 n.3 (W.D. 

Pa. June 16, 2017) (unreported) (stating that “the Supreme Court’s decision in 

Hosanna-Tabor makes clear that the application of the ministerial exception requires 

a factual inquiry to determine if the employee qualifies as a ‘minister’”). This court, 

too, has treated the question of whether an employee qualifies as a “minister” as a 

fact question. See Skrzypczak, 611 F.3d at 1243–44. 

Contrary to all this authority, Faith Christian, as well as the dissent, deems the 

determination of whether an employee is a minister instead to present a question of 

law rather than fact. In reaching that conclusion, the dissent relies on three cases, 

none of which come from the United State Supreme Court. First, the dissent relies on 

Conlon, a case decided post-Hosanna-Tabor but before Our Lady. There, the Sixth 

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

question of law which this court must determine for itself.” 777 F.3d at 833 (6th Cir. 

2015). Conlon, however, made that statement in a Fed. R. Civ. P. 12(b)(6) context, 

where every determination is a legal one. Id. Further, as previously noted, a number 

of other circuits courts, following the Supreme Court, have instead recognized the 

fact-intensive inquiry necessary to determine whether a plaintiff-employee was a 

“minister.” 

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Second, the dissent mentions Skrzypczak, 611 F.3d 1238 (10th Cir. 2010), a 

pre-Hosanna-Tabor case. A review of the Skrzypczak opinion indicates that the 

Tenth Circuit treated the question of whether the plaintiff-employee was a minister 

for purposes of the “ministerial exception” as one of fact. The Tenth Circuit, in that 

pre-Hosanna-Tabor case, applied the Fourth Circuit’s general standard for 

determining who qualifies as a minister—“any employee who serves in a position that 

‘is important to the spiritual and pastoral mission of the church.’” Skrzypczak, 611 F.3d 

at 1243 (quoting Rayburn, 772 F.2d at 1169 (4th Cir.)). In upholding summary 

judgment for the religious employer under that standard, Skrzypczak first considered 

the employer’s evidence of the plaintiff-employee’s job duties, determining that that 

“evidence . . . tends to show her position was not limited to a merely administrative role, 

but it also involved responsibilities that furthered the core of the spiritual mission of the 

Diocese.” 611 F.3d at 1243. That was sufficient evidence under the Fourth Circuit’s 

standard to prove that the plaintiff-employee was a minister, shifting the burden to 

the plaintiff-employee, in opposing summary judgment, to “bring forward specific 

facts showing a genuine issue for trial.” Id. (quoting Kannady v. City of Kiowa, 590 F.3d 

1161, 1169 (10th Cir. 2010)). Skrzypczak concluded only that the plaintiff-employee 

there had not met her burden because the only evidence she proffered were three deficient 

affidavits: 

All three affidavits contain identical language, beginning with the conclusion 

that “[Appellant’s] job was purely administrative,” and continuing with the 

statement, taken almost verbatim from Rayburn, that “[the job] in no way 

required or involved a primary function of teaching, spreading the faith, 

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control of church governance, supervision of a religious order, or supervision 

or participation in religious ritual in worship.” (Appellant’s App. at 161–65.) 

“To survive summary judgment, nonmovant’s affidavits must be 

based upon personal knowledge and set forth facts that would be admissible 

in evidence; conclusory and self-serving affidavits are not sufficient.” 

Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (internal 

quotation marks omitted). Despite Appellant’s contentions, these affidavits 

are exactly the type of conclusory affidavits that are insufficient to overcome 

summary judgment. Even if we accept [that] these affidavits are based on 

personal knowledge, they do not set forth any facts, admissible or otherwise, 

that a court could consider as raising a material issue of fact. Instead, each 

affidavit merely parrots a general rule that a court could consider in 

determining the ministerial exception’s application and then states, in the 

affiant’s opinion, the legal conclusion the court should reach. Accordingly, 

we hold the district court did not err in its determination that Appellant was 

a minister for purposes of the exception. 

Id. at 1244. Although Skrzypczak uses the phrase “legal conclusion” in describing the 

plaintiff-employee’s deficient affidavits, the overall opinion treats the question of 

whether the plaintiff-employee qualified as a “minister” as a factual determination. 

Different from that case, here Tucker, in opposing summary judgment, submitted 

evidence to support his assertion that he was not a minister. 

Lastly, the dissent relies on a pre-Our Lady case from the Kentucky Supreme 

Court, Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 608–09 (Ky. 

2014), which applied state law to conclude that whether an employee is a minister is 

a question of law. That state-law case is not persuasive in the face of two U.S. 

Supreme Court cases, Our Lady and Hosanna-Tabor, as well as the Tenth Circuit 

decision in Skrzypczak, treating the determination of whether a religious entity’s 

employee is a minister as a fact-intensive inquiry. 

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The cases on which the dissent relies, then, are not persuasive. We, therefore, 

treat the question of whether Tucker is a minister, for purposes of applying the 

“ministerial exception,” as a fact-intensive inquiry rather than a straight legal 

conclusion.4

With this general legal framework in mind, we now turn to the circumstances 

of the case before us. 

2. The Defense Asserted in This Case is Only a “Ministerial Exception” 

Defense and Not a Church Autonomy Defense 

 Faith Christian, in its converted summary judgment motion, asserted only a 

“ministerial exception” defense and, importantly, the limited discovery and summary 

judgment pleadings focused only on that issue.5 In its motion for reconsideration, 

Faith Christian continued to assert the “ministerial exception” defense, but also for 

the first time referred, perfunctorily, to a defense under the broader church autonomy 

doctrine. On appeal, Faith Christian now relies on both defenses and, at times, lumps 

them together. 

4

 The dissent, as well as Faith Christian and amici, gloss over the fact that the 

threshold question that triggers the application of the exception—whether the 

plaintiff-employee qualifies as a minister—requires a fact-intensive inquiry. In light 

of that, there will often be cases (like the case before us) where the district court will 

be unable to resolve that threshold question at the motion-to-dismiss or 

summary-judgment stage of litigation. In those cases, the jury will have to resolve 

the factual disputes and decide whether an employee qualifies as a “minister” before 

the affirmative “ministerial exception” defense is triggered. 

5

 In arguing on appeal that it has asserted a church autonomy defense all along, Faith 

Christian only points to several sentences in its converted summary judgment motion 

taken out of context. 

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Faith Christian, however, has not adequately developed a factual record for 

asserting the church autonomy defense. In particular, there has been no record 

development on that defense’s necessary threshold question: whether the employment 

dispute between Tucker and Faith Christian is rooted in a difference in religious 

belief or doctrine. Further, the parties only briefly and very generally alluded to the 

nature of their dispute in their pleadings. In his amended complaint, for example, 

Tucker alleged that Faith Christian fired him in retaliation for Tucker opposing race 

discrimination at the school. Faith Christian asserted in its answer, filed after the 

district court denied Faith Christian summary judgment on the “ministerial 

exception,” that it fired Tucker because it disagreed with the biblical interpretations 

upon which he relied in his “Race and Faith” presentation. Faith Christian makes 

that argument again in its appellate briefs. Tucker counters that, prior to his firing, 

Faith Christian never raised concerns about any religious message he conveyed as 

part of the “Race and Faith” presentation and, instead, the school’s administration 

told Tucker that his firing was an economic decision based on his offending too many 

tuition-paying parents and their children. Whether or not Faith Christian’s conflict 

with Tucker was rooted in religious belief, then, is directly disputed and the facts 

underlying that question have not yet been developed. Therefore, because Faith 

Christian did not adequately assert or develop a defense under the church autonomy 

doctrine in the district court, that defense is not properly before us. See Rumsey 

Land Co. v. Res. Land Holdings, LLC (In re Rumsey Land Co.), 944 F.3d 1259, 1271 

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19 

(10th Cir. 2019) (noting this Court will “not address arguments raised in the District 

Court in a perfunctory and underdeveloped manner”) (quotation marks omitted). 

Faith Christian argues in its reply brief that it cannot forfeit a defense under 

the church autonomy doctrine. (Aplt. Reply Br. 17 (citing Lee v. Sixth Mount Zion 

Baptist Church. 903 F.3d 113, 118 n.4 (3d Cir. 2018) (holding religious institution 

cannot “waive” “ministerial exception”).) We do not need to address that argument 

in this case because here the problem is not forfeiture. The problem here is instead 

that, because of the procedural posture of this case and because Faith Christian 

waited until its motion for reconsideration to refer, only perfunctorily, to the church 

autonomy doctrine, Faith has not adequately asserted or developed a defense under 

that doctrine. Neither party has yet had an adequate opportunity to address the 

threshold question presented by such a defense, whether the parties’ employment 

dispute is “‘rooted in religious belief,’” Bryce, 289 F.3d at 657 (quoting Yoder, 406 

U.S. at 215).6 Here, therefore, we address only a “ministerial exception” defense, 

which applies only when a “minister” sues his or her religious employer for violating 

anti-discrimination employment laws.7

6

 In a different context, the dissent notes that several circuits have held that a 

religious employer cannot waive (or forfeit) a “ministerial exception” defense. But 

this circuit has never addressed that question, and we need not do so here because 

there is no issue of waiver or forfeiture in the case before us. 

7

 Whether a religious employer can take an immediate appeal under the collateral 

order doctrine from a district court’s decision not to dismiss claims based on the 

church autonomy doctrine presents difficult questions that differ from the issues we 

must address here. Because the church autonomy doctrine is not at issue here, Faith 

Christian’s and the dissent’s reliance on cases addressing that doctrine and the 

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Having thus defined the scope of this appeal, we now turn to the legal question 

it presents: whether the collateral order doctrine permits Faith Christian’s immediate 

interlocutory appeal from the district court’s decision to deny summary judgment on 

the “ministerial exception” defense. Before answering that question, we first review 

the general principles of the collateral order doctrine. 

B. The Collateral Order Doctrine Generally 

The general principles of the collateral order doctrine are familiar. As an 

Article III court created by Congress, we “possess only such jurisdiction as is 

conferred by statute.” Edward H. Cooper, 15A Federal Practice & Procedure 

(“Wright & Miller”) § 3901 (2d ed. updated Apr. 2021). Here, the statutory basis for 

appellate jurisdiction is 28 U.S.C. § 1291, which grants “courts of appeals . . . 

jurisdiction of appeals from all final decisions of the district courts.” The district 

court’s decision at issue here, denying Faith Christian summary judgment because 

there remain genuinely disputed issues of material fact that must be resolved by a 

fact-finder, obviously does not fit the usual definition of a “final decision”—“one 

which ends the litigation on the merits and leaves nothing for the court to do but 

execute the judgment,” Catlin v. United States, 324 U.S. 229, 233 (1945). 

Faith Christian instead invokes the collateral order doctrine, “an expansive 

interpretation of [§ 1291’s] finality requirement” first announced in Cohen v. 

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which allows appeals “from 

principles underlying that doctrine are not helpful in resolving the issue presented in 

this appeal. 

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orders characterized as final . . . even though it may be clear that they do not 

terminate the action or any part of it.” Wright & Miller, 15A Federal Practice & 

Procedure § 3911. To be immediately appealable, such orders “must [1] conclusively 

determine the disputed question, [2] resolve an important issue completely separate 

from the merits of the action, and [3] be effectively unreviewable on appeal from a 

final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (numbers 

added), superseded on other grounds by rule as stated in Microsoft Corp. v. Baker, 

137 S. Ct. 1702, 1708–10 (2017). 

Immediate appeals under the collateral order doctrine are disfavored; they “are 

the exception, not the rule” because 

too many interlocutory appeals can cause harm. An interlocutory appeal 

can make it more difficult for trial judges to do their basic job—

supervising trial proceedings. It can threaten those proceedings with 

delay, adding costs and diminishing coherence. It also risks additional, 

and unnecessary, appellate court work either when it presents appellate 

courts with less developed records or when it brings them appeals that, 

had the trial simply proceeded, would have turned out to be unnecessary. 

Johnson, 515 U.S. at 309. Because of these concerns, the collateral order doctrine 

only applies to a “small class” of decisions “which finally determine claims of right 

separable from, and collateral to, rights asserted in the action, too important to be 

denied review and too independent of the cause itself to require that appellate 

consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 

546. 

Courts, then, “must apply” the collateral order doctrine “with an eye towards 

preserving judicial economy and avoiding ‘the harassment and cost of a succession of 

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separate appeals from the various rulings’ in a single case.” Los Lobos Renewable 

Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 664 (10th Cir. 2018) (quoting Will 

v. Hallock, 546 U.S. 345, 350 (2006)). Emphasizing how small the class of 

immediately appealable collateral orders is, this Court has noted that, “[i]n case after 

case in year after year, the Supreme Court has issued increasingly emphatic 

instructions that the class of cases capable of satisfying this ‘stringent’ test should be 

understood as ‘small,’ ‘modest,’ and ‘narrow.’” Kell v. Benzon, 925 F.3d 448, 452 

(10th Cir. 2019) (quoting United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 

2010)). 

Of particular relevance here, the Supreme Court has recognized that when, as 

here, the order being appealed involves the issue of whether there exists genuinely 

disputed fact questions, the benefit of an immediate appeal is likely outweighed by 

the cost of disrupting the ordinary course of litigation. In the qualified immunity 

context, for example, the Court has recognized the benefit of an immediate appeal 

from interlocutory orders denying government officials qualified immunity when 

review of that denial involves a legal question. See Johnson, 515 U.S. at 311–13 

(discussing Mitchell v. Forsyth, 472 U.S. 511 (1985)). But, after weighing the costs 

and benefits of an immediate appeal, the Supreme Court determined that an 

immediate appeal from the denial of qualified immunity cannot be justified when the 

challenged order “resolved a fact-related dispute about the pretrial record, namely, 

whether or not the evidence in the pretrial record was sufficient to show a genuine issue 

of fact for trial.” Id. at 307 (emphasis added); see also id. at 313–18. In reaching that 

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conclusion, the Supreme Court stated that “considerations of delay, comparative expertise 

of trial and appellate courts, and wise use of appellate resources argue in favor of limiting 

interlocutory appeals of ‘qualified immunity’ matters to cases presenting more abstract 

issues of law.” Id. at 317. That is because “the existence, or nonexistence, of a triable 

issue of fact—is the kind of issue that trial judges, not appellate judges, confront almost 

daily.” Id. at 316. Further, “questions about whether or not a record demonstrates a 

‘genuine’ issue of fact for trial, if appealable, can consume inordinate amounts of 

appellate time,” which means “greater delay.” Id. And 

the close connection between this kind of issue and the factual matter that 

will likely surface at trial means that the appellate court, in the many 

instances in which it upholds a district court’s decision denying summary 

judgment, may well be faced with approximately the same factual issue 

again, after trial, with just enough change brought about by the trial 

testimony[] to require it, once again, to canvass the record. That is to say, an 

interlocutory appeal concerning this kind of issue in a sense makes unwise 

use of appellate courts’ time, by forcing them to decide in the context of a 

less developed record, an issue very similar to one they may well decide 

anyway later, on a record that will permit a better decision. 

Id. at 316–17. The Supreme Court, therefore, denied an immediate appeal from the 

category of orders denying summary judgment based on qualified immunity when that 

denial was based on the determination that there were genuinely disputed issues of 

material fact that remain to be resolved. Id. at 317. The Court reached that conclusion 

even while acknowledging that its decision “forces public officials to trial,” “[a]nd, to 

that extent, it threatens to undercut the very policy (protecting public officials from 

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lawsuits) that (the Mitchell Court held) militates in favor of immediate appeals” in the 

qualified-immunity context.8 Id. 

One other important point that we keep in mind when considering whether to 

apply the collateral order doctrine is that our focus is not on whether an immediate 

appeal should be available in a particular case, but instead we focus on whether an 

immediate appeal should be available for the category of orders at issue: 

[W]e “decide appealability for categories of orders rather than individual 

orders.” Johnson v. Jones, 515 U.S. 304, 315 (1995). Thus, our task is not 

to look at the “individual case [and] engage in ad hoc balancing to decide 

issues of appealability.” Id. Instead, we must undertake a more general 

consideration of “the competing considerations underlying all questions 

of finality—‘the inconvenience and costs of piecemeal review on the one 

[hand] and the danger of denying justice by delay on the other.’” Id. 

(citation omitted). 

Los Lobos Renewable Power, 885 F.3d at 664. We must, then, evaluate appealability 

under the collateral order doctrine without regard to a “particular injustice” that may 

be “averted” by an immediate appeal in a given case. Dig. Equip. Corp. v. Desktop 

Direct, Inc., 511 U.S. 863, 868 (1994) (quotation marks omitted)); see also Johnson, 

8

 There 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. Here, on the 

other hand, the question of whether an employee is a “minister” is largely a factual 

question. The district court in this case held that based on the parties’ competing 

evidence, a rational jury could find either that Tucker was or was not a “minister.” 

That is quintessentially a factual determination for the jury. Furthermore, that factual 

question at issue here is similar to the qualified-immunity question of fact that the 

Supreme Court declined to address as a collateral order in Johnson—whether there 

was sufficient evidence that a jury could find either that certain defendant police 

officers were, or were not, present when other police officers allegedly beat the 

plaintiff. See 515 U.S. at 307, 313. 

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515 U.S. at 315 (“[W]e do not . . . in each individual case engage in ad hoc balancing to 

decide issues of appealability.”). 

For our purposes here, the relevant category is orders preliminarily denying a 

religious employer summary judgment on the “ministerial exception” defense 

because there exist genuinely disputed issues of fact that a jury must first resolve. 

Next, weighing whether the collateral order doctrine should apply to that category of 

orders, we conclude that these orders do not fall within the small, modest, and narrow 

class of cases capable of satisfying this stringent collateral-order test. See Kell, 925 

F.3d at 452.9 

C. The Collateral Order Doctrine Applied Here 

It is Faith Christian’s burden to establish our jurisdiction to consider 

immediate appeals from this category of orders under the collateral order doctrine. 

See Los Lobos Renewable Power, 885 F.3d at 664. As previously stated, 

[t]o come within the “small class” of decisions excepted from the 

final-judgment rule by Cohen, the order must [1] conclusively determine 

the disputed question, [2] resolve an important issue completely separate 

9

 The dissent makes clear that it deems the district court in this particular case to have 

erred in denying Faith Christian summary judgment on its affirmative “ministerial 

exception” defense. The dissent, for example, notes that in this case the district court 

failed adequately to identify exactly what factual disputes preclude summary 

judgment. We disagree. The district court clearly stated that, based on the parties’ 

competing evidence, which the court laid out in some detail, a reasonable jury could 

find either that Tucker was, or was not, a minister. Nonetheless, the dissent’s 

assertion that the district court erred in denying summary judgment in this particular 

case is the wrong focus for deciding whether the category of orders at issue here, 

orders denying a religious employer summary judgment on its affirmative 

“ministerial exception” defense because there remain material factual disputes that a 

jury must decide, should always be immediately appealable. 

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from the merits of the action, and [3] be effectively unreviewable on 

appeal from a final judgment. 

Coopers & Lybrand, 437 U.S. at 468 (1978) (applying Cohen, 337 U.S. 541). As 

explained next, Faith Christian can only meet the first and third Cohen requirements 

if we treat the “ministerial exception” as immunizing a religious employer, not just 

from liability, but from having to litigate at all its employee’s employment 

discrimination claims. Because we decline to afford the “ministerial exception” such 

expansive treatment, we conclude Faith Christian has not established our jurisdiction 

under the collateral order doctrine. 

1. Faith Christian has established Cohen’s second requirement 

Of these three requirements, Cohen’s second requirement is clearly satisfied 

here. There is no doubt that this category of orders—decisions denying a religious 

employer summary judgment on the “ministerial exception”—presents an important 

First Amendment issue, and that issue is separate from the merits of an employee’s 

discrimination claims. 

2. Faith Christian has not established Cohen’s third requirement10

a. Faith Christian has failed to establish that this category of orders 

denying summary judgment will be effectively unreviewable on 

appeal from final judgment 

10 We address Cohen’s third requirement before we address Cohen’s first requirement 

because our analysis on the first requirement rests on some of the same analysis 

pertaining to Cohen’s third requirement, and it seems to be the more efficient way to 

address Faith Christian’s failure to satisfy either of these requirements. 

 

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We conclude that this category of orders, like most orders denying summary 

judgment, see Ralston v. Cannon, 884 F.3d 1060, 1066 (10th Cir. 2018), can be 

effectively reviewed in the usual course of litigation; that is, we can effectively 

review such an order on appeal after the conclusion of litigation in the district court, 

see Dig. Equip., 511 U.S. at 868. In arguing to the contrary, Faith Christian asserts 

that the “ministerial exception” protects religious employers not just from liability 

based on its minister’s employment discrimination claims, but also from the burden 

of litigating such claims, and it is this protection against the burdens of litigation that 

will be lost without an immediate appeal. We reject that argument because Faith 

Christian is incorrect that the “ministerial exception” immunizes a religious employer 

from suit on employment discrimination claims. 

As we have already indicated, the Supreme Court deems the “ministerial 

exception” to be, “not a jurisdictional bar,” but instead to “operate[] as an affirmative 

defense to an otherwise cognizable claim . . . because the issue presented by the 

exception is ‘whether the allegations the plaintiff makes entitle him to relief,’ not 

whether the court has ‘power to hear [the] case.’” Hosanna-Tabor, 565 U.S. at 195 

n.4 (quoting Morrison, 561 U.S. at 254) (emphasis added). Hosanna-Tabor, in 

recognizing the “ministerial exception,” further stated that “[r]equiring a church to 

accept or retain an unwanted minister, or punishing a church for failing to do so, . . . 

interferes with the internal governance of the church, depriving the church of control over 

the selection of those who will personify its beliefs.” Id. at 188. That language 

indicates that the “ministerial exception” protects religious employers from liability, 

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but nothing there suggests a further protection from the burdens of litigation itself. 

See Peter J. Smith & Robert W. Tuttle, “Civil Procedure and the Ministerial 

Exception,” 86 Fordham L. Rev. 1847, 1881-82 (2018) (noting that, when “disputed 

questions of fact concerning the plaintiff’s status as a minister cannot be resolved at 

the summary judgment stage, . . . the matter proceeds to trial.”). Generally, any error 

a district court makes in failing to apply an affirmative defense foreclosing liability 

can be reviewed and corrected after final judgment has been entered in the case. See 

id. at 1881 (noting “fundamental value of the ministerial exception would not be 

entirely lost by waiting for a final judgment before permitting an appeal”).11 12 

11 Hosanna-Tabor indicated that “[r]equiring a church to accept or retain an unwanted 

minister, or punishing a church for failing to do so, . . . interferes with the internal 

governance of the church.” 565 U.S. at 188. But requiring a religious employer to 

incur litigation costs to defend against claims asserted against it by an employee 

under a generally applicable employment discrimination statute does not punish a 

religious employer. It is, instead, the cost of living and doing business in a civilized 

and highly regulated society. See Williamson Cty. Reg’l Planning Comm’n v. 

Hamilton Bank, 473 U.S. 173, 202, 204–05 (1985) (Stevens, J., concurring) 

(addressing citizen’s litigation costs incurred to challenge local government’s zoning 

decisions), overruled in part on other grounds by Knick v. Twp. of Scott, 139 S. Ct. 

2162, 2167–68 (2019); HMK Corp. v. Cty. of Chesterfield, 616 F. Supp. 667, 670–71 

(E.D. Va. 1985). It bears repeating that religious institutions do not “enjoy a general 

immunity from secular laws.” Our Lady, 140 S. Ct. at 2060. 

12 Faith Christian argues that it might hypothetically be required to keep an unwanted 

minister during the pendency of this trial if it cannot raise a challenge to the district 

court order interlocutorily. But, of course, that issue is not present in this case 

because Faith Christian fired plaintiff summarily within days of hearing from 

disgruntled parents. 

 Further, Faith Christian has not presented evidence that this concern will 

typically be presented in other similar litigation scenarios. To the contrary, self-help 

would seem to be the norm for almost all such other situations. 

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The “ministerial exception” shares the same characteristics as numerous other 

defenses to liability that a church might assert in other kinds of litigation. 

“[V]irtually every right that could be enforced appropriately by pretrial dismissal 

might loosely be described as conferring a ‘right not to stand trial.’” Dig. Equip., 

511 U.S. at 873. That includes orders denying summary judgment. See id. But 

allowing an immediate appeal from the denial of a dismissal based on all of these 

rules would eviscerate the congressionally mandated final judgment rule. See id.; 

Wright & Miller, 15A Federal Practice & Procedure § 3911.4. 

Thus, even though other situations could just as convincingly be characterized 

as involving rules protecting against the burdens of going to trial, courts have almost 

always denied immediate appeals under the collateral order doctrine from the 

following: orders denying dismissal based on lack of subject matter jurisdiction, lack 

of personal jurisdiction, immunity from service of process, preclusion principles, an 

agency’s primary jurisdiction, forum non conveniens, speedy trial rights (in a 

criminal case), almost all denials of summary judgment, and the district court’s 

 Faith Christian responds that it might ultimately have to respond in damages to 

improper discharge, but of course that would be a consequence only after trial if the 

plaintiff is found not to have been a minister and that the discharge was improper 

under Title VII. If that situation prevails, of course, the church is simply being held 

properly to the same standards as all other institutions and employers in America. 

There is no allegation or evidence that alternatives to an interlocutory collateral-order 

appeal now would be onerous to Faith Christian or, indeed, to most churches in 

America. Expedited litigation procedures such as the bifurcated procedures used 

here will often be adequate to address the concerns that Faith Christian raises. 

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refusal to remand a civil case to state court, to name just a few. See Dig. Equip., 511 

U.S. at 873; Wright & Miller, 15A Federal Practice & Procedure §§ 3911.3, 3911.4. 

This litany of analogous situations underscores that courts have jealously 

protected the narrow scope of the collateral order doctrine and for good reason: 

The general lesson of these illustrations and still others is simple. The 

mere burden of submitting to trial proceedings that will be wasted if the 

appellant’s position is correct does not support collateral order appeal. 

Nor is it enough to show that a wrong order may cause tactical 

disadvantages that cannot be undone even by a second trial. The final 

judgment rule rests on a determination that ordinarily these costs must be 

borne to support the greater benefits that generally flow from denying 

interlocutory appeal. 

Wright & Miller, 15A Federal Practice & Procedure § 3911.4 (footnotes omitted). 

Those benefits include, among others, avoiding the delays and disruptions to 

litigation caused by piecemeal appeals and preventing unnecessary and repetitive 

appellate review. See Johnson, 515 U.S. at 309. 

b. Faith Christian’s analogy to qualified immunity is inaccurate 

 Faith Christian counters that the “ministerial exception” is no ordinary 

affirmative defense; it is one rooted in the First Amendment and, therefore, the denial 

of summary judgment on that defense warrants an immediate appeal. In support of 

that assertion, Faith Christian tries to draw an analogy between the category of orders 

at issue here—orders denying summary judgment to a religious employer on the 

“ministerial exception” because there remain factual disputes that a fact-finder must 

resolve—and a non-church based category of orders for which courts do allow 

interlocutory appeals—when the district court denies a government official qualified 

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immunity based on abstract questions of law. But that analogy is not helpful to Faith 

Christian because these two affirmative defenses—the “ministerial exception” and 

qualified immunity—are simply not at all similar. 

Unlike the “ministerial exception,” the Supreme Court has explicitly 

recognized that qualified immunity protects government officials not only from 

liability, but also from the burdens of litigation itself. See Mitchell, 472 U.S. at 525–

27. Because qualified immunity is predicated on “an immunity from suit rather than 

a mere defense to liability . . . , it is effectively lost if a case is erroneously permitted 

to go to trial.” Id. at 526. But Faith Christian has not cited any case holding that the 

“ministerial exception” similarly immunizes a private religious employer from the 

burdens of litigating employment discrimination claims brought against it by one of 

its ministers.13 

In an analogous situation, the Seventh Circuit refused to permit an immediate 

appeal under the collateral order doctrine from an order denying a religious employer 

summary judgment on Title VII’s statutory exemptions and its general First 

Amendment defense. Cf. Herx v. Diocese of Ft. Wayne-S. Bend, Inc., 772 F.3d 

1085, 1088, 1090 (7th Cir. 2014). Herx reasoned that, “although the statutory and 

constitutional rights asserted in defense of this suit are undoubtedly important, the 

Diocese [the religious employer] has not established that the Title VII exemptions or 

13 To the contrary, see Smith & Tuttle, 86 Fordham L. Rev. at 1881 (stating that “the 

ministerial exception, at bottom, is still a defense to liability rather than a 

comprehensive immunity from suit” and any error that the district court makes in not 

applying that exception can be reviewed effectively on appeal from final judgment). 

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the First Amendment more generally provides an immunity from trial, as opposed to 

an ordinary defense to liability.” Id. at 1090. Although Herx did not involve the 

“ministerial exception,” id. at 1091 n.1, it does support both our conclusions that the 

“ministerial exception” does not immunize a religious employer from litigating Title 

VII claims asserted against it by a minister and that orders denying summary 

judgment on the “ministerial exception” are not immediately appealable. 

Faith Christian’s policy arguments for extending qualified immunity to private 

religious employers are also not persuasive. To be sure, this Court has previously 

noted some similarities between a religious employer’s First Amendment defenses 

and “a government official’s defense of qualified immunity.” Bryce, 289 F.3d at 654 

(addressing church autonomy doctrine); see also Skrzypczak, 611 F.3d at 1242 

(addressing “ministerial exception”). But in doing so, we were quick to note further 

that, “[o]f course, the doctrines and their inquiries are quite different, as are the 

reasons for addressing them early in the litigation process.” Bryce, 289 F.3d at 654 

n.1. Qualified immunity applies to suits against government officials in an effort to 

protect the public’s interest in a functioning government. See id. To that end, 

qualified immunity seeks to avoid “the general costs of subjecting officials to the 

risks of trial—distraction of officials from their governmental duties, inhibition of 

discretionary action, and deterrence of able people from public service.” Mitchell, 

472 U.S. at 526 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).14

14 For similar reasons, courts have recognized the need for immediate appeals under 

the collateral order doctrine from categories of orders denying a government 

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Courts, however, “hesita[te] to extend immunity from suit to a private party 

without a statutory basis” to do so because “[i]mmunity from suit is a benefit 

typically only reserved for governmental officials.” Gen. Steel Domestic Sales, 

L.L.C. v. Chumley, 840 F.3d 1178, 1182 (10th Cir. 2016). The Supreme Court has 

similarly stated that rationales underlying qualified immunity—“to safeguard 

government, and thereby to protect the public at large”—“are not transferable to 

private parties.” Wyatt, 504 U.S. at 168. The fact that the “ministerial exception” 

applies only to private religious organizations, then, counsels against treating the 

“ministerial exception” like an immunity from suit, under both Supreme Court and 

Tenth Circuit precedent. 

official’s claim to absolute immunity. See Mitchell, 472 U.S. at 525 (citing Nixon v. 

Fitzgerald, 457 U.S. 731 (1982)). In recognizing both qualified and absolute 

immunity, the Supreme Court has “consistently held that government officials are 

entitled to some form of immunity from suits for damages” in order to protect “public 

officers . . . from undue interference with their duties and from potentially disabling 

threats of liability.” Harlow, 457 U.S. at 806. Absolute immunity applies to 

“officials whose special functions or constitutional status requires complete 

protection from suit,” like legislators acting in their legislative capacity, judges 

acting in their judicial capacity, and prosecutors and executive officers engaged in 

adjudicative functions, as well as the President of the United States. Id. “For 

executive officials in general, however, . . . qualified immunity represents the norm,” 

in an effort “to balance competing values: not only the importance of a damages 

remedy to protect the rights of citizens, but also ‘the need to protect officials who are 

required to exercise their discretion and the related public interest in encouraging the 

vigorous exercise of official authority.’” Id. (quoting Butz v. Economou, 438 U.S. 

478, 506 (1978)). Courts also recognize immediate appeals under the collateral order 

doctrine from categories of orders denying a government’s claim to Eleventh 

Amendment immunity, see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

506 U.S. 139, 141 (1993), as well as a foreign government’s claim to immunity, see 

Herx, 772 F.3d at 1090 (7th Cir.). 

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The dissent incorrectly suggests that we are concerned about applying the 

collateral order doctrine generally in civil cases between private parties. Not so. As 

the cases cited by the dissent illustrate, immediately appealable collateral orders can 

arise in the course of private civil litigation.15 Our specific concern is instead with 

the dissent’s unprecedented extension of immunity to private religious organizations 

in order to protect them from the burdens of even litigating claims brought against 

them by employees alleging illegal employment discrimination. Since the dissent 

fails to establish the necessary predicate that the “ministerial exception” protects 

churches from even litigating a Title VII claim, it has no other basis to seek to apply 

the Cohen collateral order doctrine. 

Treating the “ministerial exception” as protecting religious employers from the 

burdens of litigation based on the First Amendment does not make sense in the bigger 

picture of religious organizations and the legal system. Although religious 

institutions enjoy some protections under the “ministerial exception,” religious 

institutions do not “enjoy a general immunity from secular laws.” Our Lady, 140 

S. Ct. at 2060; see also Ohio C.R. Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 

619, 628 (1986) (“Even religious schools cannot claim to be wholly free from some 

15 Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659 (10th Cir. 

2018), is one such example. But that case otherwise has no relevance to the issues 

before us. It dealt with the application of a unique New Mexico statute providing 

expedited procedures in a narrow class of litigation described as “strategic lawsuits 

against public participation,” or “SLAPP.” Id. at 662. Here, of course, there is no 

SLAPP claim and obviously no need to apply the New Mexico law. 

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state regulation.”). Religious entities can be sued on myriad theories. See 

Skrzypczak, 611 F.3d at 1244–46 (discussing lawsuits that can and cannot be brought 

against religious organizations); Tomic v. Catholic Diocese, 442 F.3d 1036, 1039–40 

(7th Cir. 2006) (same), overruled on other grounds by Hosanna-Tabor, 565 U.S. at 

195 n.4 (holding “ministerial exception” is not jurisdictional). 

As just one example, religious employers can be sued by their non-ministerial 

employees for violating anti-discrimination employment statutes. See, e.g., Rayburn, 

772 F.2d at 1169. That highlights the importance of the merits question at issue in 

this appeal. If the employee is a minister, suit over the employment discrimination 

claims ends. But if the employee is not a minister, then those claims must be 

resolved according to our normal jurisprudential process. 

In summary, Faith Christian has failed to cite any case specifically treating the 

“ministerial exception” as protecting a religious employer from litigation itself. Such 

a position is contrary to our legal system’s treatment of religious entities generally—

they are protected by the First Amendment, certainly, but are generally not excused 

from complying with generally applicable government regulation or from being haled 

into court. 

c. The grounds Faith Christian asserts for extending qualified 

immunity to a private religious employer are not persuasive 

Faith Christian’s argument for an immediate appeal is premised on treating the 

“ministerial exception” like qualified immunity. The dissent adopts that argument. 

Both advance two justifications for extending qualified immunity from suit to private 

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religious employers—Hosanna-Tabor treated the “ministerial exception” as an 

immunity from suit and the “ministerial exception” is a structural limitation on the 

court’s authority to act. Neither justification is a correct statement of the law. 

i. Hosanna-Tabor did not treat the “ministerial exception” as 

immunizing a private religious employer from suit 

Faith Christian contends that the Supreme Court, in first recognizing the 

“ministerial exception” in Hosanna-Tabor, treated the “ministerial exception” as 

immunizing religious employers, not just from liability, but from suit itself. 

Hosanna-Tabor, however, never addressed the “ministerial exception” in terms of an 

immunity of any kind. Instead, it treated the “ministerial exception” as an 

affirmative defense and never once referred to it as an immunity from suit.16 

Hosanna-Tabor’s reasoning suggests only that the “ministerial exception” protects 

religious employers from liability under Title VII for employment discrimination 

claims asserted against the religious employer by its ministers. Tellingly, 

Hosanna-Tabor held that the “ministerial exception” is “not a jurisdictional bar,” but 

instead “operates as an affirmative defense to an otherwise cognizable claim . . . 

because the issue presented by the exception is ‘whether the allegations the plaintiff 

makes entitle him to relief,’ not whether the court has ‘power to hear [the] case.’” 

565 U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254) (emphasis added). 

16 Similarly, immunity is never mentioned or suggested by the Supreme Court in its 

later, closely related case of Our Lady. 

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37 

Hosanna-Tabor stated that it would interfere with a church’s “internal 

governance” to require the “church to accept or retain an unwanted minister, or 

punish[] a church for failing to do so.” Id. at 188. That reasoning, of course, does 

not preclude the need for a fact-finder first to determine whether the plaintiff is or is 

not in fact a minister. Hosanna-Tabor also held that to grant the relief the 

employee-minister sought in that case—reinstatement and damages—would violate 

the First Amendment, and it concluded that, because the employee in that case was a 

minister, “the First Amendment requires dismissal.” Id. at 194. All of that language 

from Hosanna-Tabor suggests that the “ministerial exception” is a defense that 

protects a religious employer from ultimate liability under Title VII from a plaintiff 

who is found to be a minister but not from the normal judicial process to make that 

predicate determination of whether the plaintiff-employee is in fact a minister.17

In arguing to the contrary, Faith Christian and the dissent rely on 

Hosanna-Tabor’s use of the word “bar” several times—i.e., stating that the 

ministerial exception “bars . . . suit” over a religious employer’s decision to fire the 

plaintiff, id. at 196. According to Faith Christian, the use of the word “bar,” without 

more, “establishes” that the “ministerial exception” immunizes a private religious 

17 As noted previously, nothing in this litigation requires Faith Christian to employ an 

unwanted minister. It has the power, and has already exercised that power, to 

discharge Tucker. The only issue in this case is damages. If at trial Faith Christian 

shows that the discharge was protected under the “ministerial exception” or if it is 

otherwise defensible, Faith Christian would not have to respond in damages for its 

decision. 

 

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38 

employer from suit under Title VII. However, it would be odd indeed and contrary to 

the clear language and reasoning in Hosanna-Tabor if Hosanna-Tabor reached the 

unprecedented result advanced by Faith Christian, extending immunity from suit to 

private religious employers without expressly addressing and explaining its decision 

to do so. It would be odder still for the Court to do so simply by using such a 

generally applicable term as “bar.” This is especially true in Hosanna-Tabor, where 

the Court expressly stated that the “ministerial exception” is “not a jurisdictional 

bar,” but instead “operate[s] as an affirmative defense to an otherwise cognizable 

claim . . . because the issue presented by the exception is ‘whether the allegations the 

plaintiff makes entitle him to relief,’ not whether the court has ‘power to hear [the] 

case.’” 565 U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254) (emphasis added).18 

The Supreme Court uses the term “bar” in many different contexts. As just 

one example which unmistakably contradicts the dissent’s reliance on the word “bar” 

in this case, the Supreme Court in Digital Equipment distinguished orders holding 

“that an action is barred on claim preclusion principles” from orders involving an 

“entitlement to ‘avoid suit altogether,’” like qualified immunity. 511 U.S. at 873–75 

(emphasis added) (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 501 (1989), 

and citing Mitchell, 472 U.S. 511).19

18 The Supreme Court has more generally warned courts to be cautious when using 

the label “jurisdictional.” See Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004). 

19 Hosanna-Tabor simply did not address whether any church defense immunizes a 

religious employer from litigation on a minister’s employment discrimination claims. 

A fair reading of that case as a whole does not suggest any conscious attempt by the 

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The dissent’s contention, that Hosanna-Tabor’s use of the word “bar” all by 

itself implicitly extended qualified immunity from suit to private religious employers 

is unpersuasive.20 

ii. Faith Christian has not established that the “ministerial 

exception” is a “structural” limitation on a court’s authority 

sufficient to immunize private religious employers from suit 

under Title VII 

 

 Reiterating, Hosanna-Tabor held that the “ministerial exception” is “not a 

jurisdictional bar” and does not implicate a court’s “‘power to hear [the] case.’” 565 

U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254). Faith Christian nevertheless 

attempts an end-run around this clear Supreme Court language, trying to make the 

same argument we have just rejected by dressing it up in different clothes—e.g., 

trying to advance the same argument this time under the rubric of a structural 

Supreme Court to give the word “bar” the weight the dissent would give it. Neither 

the dissent nor the parties have cited any case giving Hosanna-Tabor’s use of the 

term “bar” the expansive and novel reading suggested by Faith Christian and the 

dissent. Nor have we found any such case. The dissent points to the Sixth Circuit’s 

Conlon decision. But Conlon did not address immunity. Instead, it relied on 

Hosanna-Tabor to hold that a religious employer cannot waive the application of the 

“ministerial exception” defense once it has been determined that the 

plaintiff-employee qualifies as a minister. 777 F.3d at 833–36. Neither the Supreme 

Court nor this Court has addressed that waiver question. But waiver, in any event, is 

not the same as an immunity from suit that Faith Christian seeks here. 

20 The dissent also relies on this court’s use of the term “adjudication” in Bryce, a 

pre-Hosanna Tabor Tenth Circuit case, 289 F.3d at 656. While Bryce discussed the 

“ministerial exception,” its ruling was based only on the church autonomy doctrine. 

See id. at 651, 658 n.2. 

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limitation on courts’ authority to rule on an employment discrimination claim. Faith 

Christian’s argument is still not persuasive. 

a. The three out-of-circuit cases on which Faith 

Christian relies are inapposite 

Faith Christian cites three cases from other circuits in support of its 

structural-limitations argument—Conlon, 777 F.3d 829 (6th Cir.); Lee, 903 F.3d 113 

(3d Cir.); and Tomic, 442 F.3d 1036 (7th Cir.). None of these three cases are binding 

on us. But, in any event, each of them is distinguishable. None of the three address 

the question of whether the “ministerial exception” immunizes a religious employer 

from litigating employment discrimination claims. Instead, each of those cases 

addressed only the question of whether a religious employer could waive (or forfeit) 

a “ministerial exception” defense. Further, each of the three cases addressed the 

waiver question only after it was clear that the plaintiff-employee was a minister. 

That, too, differs from this case. Of greater concern, the specific language from 

those cases on which Faith Christian relies contradicts Hosanna-Tabor’s express 

language indicating that the “ministerial exception” does not implicate a court’s 

power to hear an employment discrimination claim. 

 In Conlon, for example, the Sixth Circuit expressly stated that, before deciding 

whether a religious employer could “waive[]” its “ministerial exception” defense, the 

court first had to “consider whether the ministerial exception would otherwise apply 

to the[] facts” plaintiff alleged. 777 F.3d at 833. The Sixth Circuit then determined 

that the plaintiff-employee in that case was a minister and, thus, that the employer 

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41 

could assert the “ministerial exception.” Id. at 832, 834–35. Only after that did 

Conlon cite the First Amendment and state the generally accepted principle that the 

“government cannot dictate to a religious organization who its spiritual leaders will 

be.” Id. at 835–36. On that basis, Conlon rejected the plaintiff-employee’s assertion 

that the employer had “waived” its “ministerial exception” defense, ruling that the 

“ministerial exception” cannot be waived.” Id. at 836. 

 In Lee, a Third Circuit case, there was no dispute that the plaintiff-employee, 

the pastor of a Baptist church, qualified as a minister. Lee sued the church, alleging 

the church had breached its employment contract with Lee. 903 F.3d at 116–18. Lee 

moved for summary judgment and, in its defense, the Church responded by asserting 

several defenses, but not the “ministerial exception.” Id. at 118 & n.2. It was the 

district court which, sua sponte, raised the “ministerial exception” and eventually 

granted the non-moving Church summary judgment on that basis. Id. at 118. The 

Third Circuit ruled that the employer had not “waived” the affirmative “ministerial 

exception” defense because it “is rooted in constitutional limits on judicial 

authority.” Id. at 118 n.4. Alternatively, the court noted that Lee did not argue 

waiver to the district court. Id. 

 In Tomic, a pre-Hosanna-Tabor case, the Seventh Circuit treated the 

“ministerial exception” as a jurisdictional limitation, see 442 F.3d at 1039, a 

proposition which the Supreme Court later rejected in Hosanna-Tabor, see 565 U.S. 

at 195 n.4. In a general discussion, Tomic noted “that federal courts cannot always 

avoid taking a stand on a religious question.” 442 F.3d at 1039. Where, for example, 

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a church designated all of its employees, including the janitor, as a minister, a “court 

would have to determine whether under the actual law of the church in question . . . 

janitors really were ministers.” Id. But under the specific facts that the 

plaintiff-employee alleged in Tomic, the Seventh Circuit held that the 

plaintiff-employee, as the music director for a Catholic diocese, qualified as a 

minister. Id. at 1040–41. After reaching that conclusion, the Seventh Circuit 

considered “whether it makes a difference that the diocese represents itself as an 

‘equal opportunity’ employer.” Id. at 1041. The court held it did not make a 

difference because “the ministerial exception, like the rest of the internal-affairs 

doctrine, is not subject to waiver or estoppel.” Id. at 1042. 

 None of these three out-of-circuit cases binds this Court. Furthermore, and of 

most concern, the language from each of these cases on which Faith Christian 

relies—language referring to the “ministerial exception” as a “structural” or a 

constitutional “limitation” on a court’s “authority”—contradicts Hosanna-Tabor’s 

language explicitly stating that the “ministerial exception” is not jurisdictional and 

does not implicate the question of “whether the court has ‘power to hear [the] case.’” 

565 U.S. at 195 n.4 (quoting Morrison, 561 U.S. at 254). Moreover, although the 

post-Hosanna-Tabor cases of Conlon and Lee recognized that Hosanna-Tabor held 

that the “ministerial exception” is not jurisdictional, neither Conlon nor Lee 

acknowledged and addressed the Supreme Court’s further language indicating that 

the “ministerial exception” does not implicate a court’s “‘power to hear [the] case,’” 

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id. (quoting Morrison, 561 F.3d at 254). (Neither Faith Christian nor the dissent 

address this language from Hosanna-Tabor, either.) 

Beyond that significant problem, none of these three cases address the 

question presented here, which is whether the category of orders denying a religious 

employer summary judgment on its “ministerial exception” defense should be 

immediately appealable. Nor do any of these three cases address whether the 

“ministerial exception” immunizes a religious employer from ever having to litigate 

its minister’s employment discrimination claims. Instead, the three cases cited by 

Faith Christian address only whether an employer can “waive” (or forfeit) its 

affirmative “ministerial exception” defense, once it has been determined that the 

plaintiff-employee is a minister. That waiver question, which neither the Supreme 

Court nor this Court has addressed, is not analogous to the immunity from suit Faith 

Christian seeks here. For myriad reasons, then, these three cases on which Faith 

Christian relies are not helpful. 

b. The Establishment Clause requires that courts avoid 

only excessive entanglement 

 Faith Christian relies on the Establishment Clause’s admonition that courts 

avoid excessive entanglement with religion to argue that the “ministerial exception” 

is a “structural” limitation on a court’s authority to adjudicate an employment 

discrimination claim. But “[e]ntanglement must be ‘excessive’ before it runs afoul of 

the Establishment Clause.” Agostini v. Felton, 521 U.S. 203, 233 (1997). 

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A district court’s decision to deny a religious employer summary judgment 

because there are disputed issues of fact material to whether or not the 

plaintiff-employee is a minister does not represent excessive entanglement. See 

generally id. (noting “[i]nteraction between church and state is inevitable”). Instead, 

the fact finder must determine whether the plaintiff-employee is a minister before 

deciding whether the “ministerial exception” applies in a given case. If the 

plaintiff-employee is not a minister, there is no entanglement with religion and the 

“ministerial exception” does not apply. Religious institutions do not “enjoy a general 

immunity from secular laws.” Our Lady, 140 S. Ct. at 2060. Instead, applying 

neutral and generally applicable laws to religious institutions ordinarily does not 

violate the First Amendment. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 

1876–77 (2021) (citing cases). Faith Christian, thus, is subject to Title VII 

discrimination claims brought against it by a non-ministerial employee. See 

Rayburn, 772 F.3d at 1169 (4th Cir.). Requiring Faith Christian to litigate to 

resolution here the genuinely disputed predicate factual issue of whether or not 

Tucker is a minister does not amount to an excessive entanglement of courts with 

religion. It is instead a necessary factual determination that will resolve whether the 

“ministerial exception” even applies in the first place. And, where there is a 

genuinely disputed factual issue as to whether an employee qualifies as a “minister,” 

a jury must resolve that predicate material factual dispute. That cannot be avoided in 

light of the fact-intensive nature of the question, as emphasized by the Supreme 

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Court in both Our Lady, 140 S. Ct. at 2066–67, and Hosanna-Tabor, 565 U.S. at 190–

94. 

 Faith Christian disagrees, asserting that allowing this case to proceed to merits 

discovery and possibly a trial will require the district court’s excessive entanglement 

with religion. But determining the narrow binary factual question of whether a 

particular plaintiff is or is not a minister of the defendant church is not excessive 

entanglement. If the determination is that the plaintiff is not a minister, requiring the 

church to stand trial on an employment discrimination claim, or indeed other secular 

claims, is not excessive entanglement or even entanglement at all. If Faith Christian 

were entitled to immunity here it would be “immunity by ipse dixit”—immunity 

because Faith Christian simply declared Tucker (and indeed nearly all of its 

employees) to be ministers. 

If this case goes to trial, it does not reasonably mean that even a jury will ever 

be required to resolve any religious dispute. Instead, the district court could instruct 

the jury to decide first whether Tucker is a minister (without regard to whether he is a 

faithful or feckless minister); if Tucker is determined to be a minister, the jury’s 

inquiry ends. Only if the jury finds that Faith Christian failed to prove that Tucker is 

a minister can the jury then decide the secular merits of Tucker’s Title VII (and 

Colorado law) claims. 

 To hold otherwise would place a religious employer above the law, and that is 

not the purpose of the “ministerial exception.” 

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46 

c. Faith Christian has not cited any case where an 

interlocutory ruling denying dismissal of a claim 

against a party based on the Establishment Clause was 

immediately appealable 

 Faith Christian has not cited, nor have we found, any case permitting an 

immediate collateral-order appeal challenging a court’s decision to decline to dismiss 

secular claims based on the Establishment Clause’s prohibition against courts’ 

excessive entanglement with religion. 

 Faith Christian mentions Whole Women’s Health v. Smith, 896 F.3d 362 (5th 

Cir. 2018), but the circumstances at issue there were very different from this case. In 

Smith, the district court issued a discovery order requiring the Texas Conference of 

Catholic Bishops (“Conference”), which was not a party to the litigation, to produce 

its “internal communications.” Id. at 364. The Fifth Circuit permitted an immediate 

appeal from that decision under the collateral order doctrine because the contested 

discovery order conclusively determined that the non-party Conference had to turn 

over its internal communications and, because the discovery order was directed to a 

non-party, it was effectively unreviewable following a final judgment entered in the 

parties’ litigation. Id. at 367–69. That is a very different situation than the one 

presented here, where a party-defendant (Faith Christian) seeks an immediate 

collateral-order appeal from the denial of summary judgment on its affirmative 

defense because there remain material factual disputes that a jury must decide. Here, 

Faith Christian can challenge that finding after final judgment if an adverse judgment 

is ultimately rendered against it. 

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47 

d. Conclusion as to Faith Christian’s structural 

argument 

 Bringing this discussion full circle, Hosanna-Tabor expressly held that the 

“ministerial exception” is not jurisdictional. See 565 U.S.at 195 n.4. But even if, 

directly contrary to Hosanna-Tabor’s clear language, we treated the “ministerial 

exception” as jurisdictional, that would not entitle Faith Christian to an immediate 

appeal. Even decisions denying dismissal based on the lack of subject matter or 

personal jurisdiction are generally not immediately appealable. See 15A Wright & 

Miller §§ 3911.3, 3911.4. 

Furthermore, even if, again contrary to Hosanna-Tabor’s express language, we 

instead relied on the Establishment Clause to treat the “ministerial exception” as a 

limitation on a court’s authority to adjudicate an employee’s discrimination claim, 

Faith Christian would still not be entitled to an immediate appeal. Any limitation the 

“ministerial exception” imposes is only conditional and would not be triggered unless 

and until the religious employer established as a matter of fact that the employee 

qualified as a minister. The Establishment Clause’s admonition that courts avoid 

excessive entanglement with religion would have no application if the employee was 

found not to be a minister. And, as already explained, and as emphasized by the 

Supreme Court in Hosanna-Tabor and Our Lady, because the determination of 

whether or not an employee is a minister involves a fact-intensive inquiry, the denial 

of summary judgment on that issue because there are material factual disputes does 

not justify an immediate appeal under the collateral order doctrine. 

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 Many of the arguments made by Faith Christian, the dissent and a number of 

amici to the contrary simply presuppose that the plaintiff-employee will always be a 

minister. Those arguments are not realistic. They ignore the possibility, presented 

here, that a district court will conclude that summary judgment cannot be entered for 

the religious employer because there are genuinely disputed material facts that a jury 

must resolve. If a jury’s resolution of those facts indicates that the employee is not a 

minister, then the Establishment Clause is not implicated. 

c. Conclusion as to Cohen’s third requirement 

We conclude that the “ministerial exception” is not analogous to qualified 

immunity and does not immunize religious employers from the burdens of litigation 

itself. While the “ministerial exception” does protect a religious employer from 

liability on claims asserted by a “minister” who alleges that the employer violated 

anti-discrimination employment laws, any error the district court makes in failing to 

apply that affirmative defense can be effectively reviewed and corrected through an 

appeal after final judgment is entered in the case. 

3. Faith Christian also cannot meet Cohen’s first requirement, that the 

category of orders being appealed conclusively determine the disputed 

question 

Because we conclude that Faith Christian has failed to establish that this 

category of orders satisfies the third Cohen prong, we need not address whether Faith 

Christian satisfied Cohen’s first prong—that the category of orders being appealed 

conclusively determine the disputed question, whether an employee qualifies as a 

minister. See Coopers & Lybrand, 437 U.S. at 468 (applying Cohen, 337 U.S. 541). 

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49 

But Faith Christian cannot satisfy Cohen’s first requirement either. It is clear that the 

district court denied summary judgment because a jury must resolve the genuinely 

disputed fact question of whether Tucker was a “minister”; that ruling unquestionably 

did not “conclusively determine the disputed question” of Tucker’s ministerial status, 

Coopers & Lybrand, 437 U.S. at 468 (emphasis added). Instead, the district court’s 

decision clearly contemplates further factual proceedings to resolve that disputed 

issue of fact of Tucker’s ministerial status vel non. 

As with the third Cohen requirement, again the dissent can only conclude that 

the first Cohen requirement is satisfied if the “ministerial exception” immunizes 

religious employers even from suit under Title VII. But, as explained in our 

discussion of the third Cohen requirement, this is an incorrect characterization of the 

“ministerial exception.21

21 Because Faith Christian has failed to meet either Cohen’s first or third 

requirements for immediate appeal under the collateral order doctrine, we have no 

interlocutory jurisdiction to address the merits of the district court’s decision to deny 

Faith Christian summary judgment on its “ministerial exception” defense. The 

dissent addresses the merits of that question and concludes the district court erred; 

that is, the dissent concludes that the factual question of whether Tucker was a 

“minister” should be taken from a jury and decided in the first instance by this court. 

We have two concerns about the dissent’s merits discussion. First, the dissent 

contends that the district court failed to identify specific factual disputes that 

preclude summary judgment. But that is not so. The district court laid out in 

extensive detail each side’s evidence on the question of whether Tucker was a 

minister (Aplt. App. 274–82) and then held that “whether Mr. Tucker was a 

‘minister’ within the meaning of the ‘ministerial exception’ is genuinely disputed on 

the evidence presented” and that a reasonable jury considering that competing 

evidence could find either that Tucker was, or was not, a minister (id. at 284). 

 Second, the dissent asserts that it views that competing evidence in the light 

most favorable to Tucker, but then relies on Faith Christian’s evidence. As the 

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III. CONCLUSION 

The Supreme Court could of course extend the scope of the collateral order 

doctrine to allow interlocutory appeals of cases like the one before us. But until and 

unless that occurs, our task is to apply current existing law, which we have tried 

faithfully to do. Only a very small number of orders qualify categorically as 

immediately appealable under the collateral order doctrine. Faith Christian has not 

shown that the category of orders at issue here—decisions denying a religious 

employer summary judgment on the employer’s “ministerial exception” defense 

because of a genuine dispute of material issues of fact—cannot be effectively 

reviewed at the conclusion of the litigation. We, therefore, do not have jurisdiction 

under the collateral order doctrine to consider this appeal and, accordingly, DISMISS 

it for lack of jurisdiction. 

district court explained the evidence, Faith Christian’s evidence was primarily 

self-serving documents describing Tucker’s position, like an extension agreement and 

teacher handbook, while Tucker’s evidence addressed the actual “facts and 

circumstances of his employment.” (Aplt. App. 284.) The district court noted that, if 

a jury believed Tucker’s evidence, the jury “could rationally” find that he was not a 

“minister.” Id. Furthermore, Faith Christian’s documents on which the dissent relies 

appear to classify all teachers and indeed all staff members as “ministers.” Such an 

indiscriminate blanket statement giving ministerial status to essentially its entire staff 

is contrary to the case-specific inquiry as to whether a given employee should be 

deemed a “minister” for purposes of the “ministerial exception.” See Fratello, 863 

F.3d at 207 (2d Cir.) (noting that religious employer “cannot insulate itself from . . . 

liability by bestowing hollow ministerial titles upon many or all of its employees”); 

see also Tomic, 442 F.3d at 1039 (7th Cir.). We lack jurisdiction to consider the 

merits of the district court’s decision and so we do not address those merits in detail. 

But there are concerns about the dissent’s discussion of those merits. 

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Gregory Tucker v. Faith Bible Chapel, No. 20-1230 

BACHARACH, J., dissenting 

This case involves an employment dispute and the ministerial 

exception. This exception stems from the Religion Clauses of the First 

Amendment and bars courts from considering employment disputes 

between religious bodies and their ministers. Hosanna-Tabor Evangelical 

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012); Our Lady of 

Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020). By 

barring consideration of these disputes, the ministerial exception protects 

the free exercise of religion and prevents judicial entanglement in religious 

matters. Hosanna-Tabor, 565 U.S. at 188. 

The defendant (Faith Bible Chapel) sought summary judgment1

 based 

on the ministerial exception, arguing that the plaintiff (Mr. Gregory 

Tucker) had been employed as a minister. But the district court denied 

summary judgment and reconsideration.2

 Faith Bible appeals, arguing that 

 appellate jurisdiction exists under the collateral-order doctrine 

and 

1

 Faith Bible moved to dismiss, and the district court converted the 

motion to one for summary judgment. 

2

 The district court granted Faith Bible’s motion for summary 

judgment on a claim under Title VI, but that claim does not bear on this 

appeal. 

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2 

 the ministerial exception bars relief.3

The majority concludes that we lack jurisdiction, but I respectfully 

disagree. In my view, we have appellate jurisdiction under the collateralorder doctrine. With jurisdiction, we should reverse because the undisputed 

evidence shows that Mr. Tucker was acting as a minister when his 

employment ended. So I respectfully dissent. 

I. After his employment ended, Mr. Tucker sued. 

Mr. Tucker worked as a teacher and as a Director of Student 

Life/Chaplain at a religious school, Faith Christian Academy. But parents 

of the students bristled when Mr. Tucker led a program on race and faith, 

and school officials later stripped Mr. Tucker of his position as a Director 

of Student Life/Chaplain. About a month later, school officials also 

terminated his employment as a teacher. 

The termination led to a suit against the school’s operator, Faith 

Bible, under Title VII and Colorado law for retaliating against Mr. 

Tucker’s anti-racist statements. In response, Faith Bible attributes the 

termination to a disagreement about Mr. Tucker’s interpretation of 

scriptural passages. 

3

 Faith Bible also asserts a church-autonomy defense, which the 

majority treats as underdeveloped. I express no opinion on the development 

of that defense. 

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3 

The substantive issue on appeal is whether a genuine dispute of 

material fact existed regarding Mr. Tucker’s status as a minister. 

II. We should consider all of Mr. Tucker’s jurisdictional challenges. 

Faith Bible argues that Mr. Tucker conceded multiple jurisdictional 

arguments by failing to respond to them when he briefed jurisdiction. But 

parties cannot waive challenges to appellate jurisdiction. Tuck v. United 

Servs. Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988). So we should 

consider all of Mr. Tucker’s jurisdictional challenges. 

III. The ministerial exception involves a defense against suit, not just 

against liability. 

Consideration of these jurisdictional challenges turns on the nature 

of the ministerial exception. Mr. Tucker considers this exception like any 

ordinary affirmative defense, serving only the personal interests of private 

individuals to avoid personal liability for private wrongs. In my view, 

however, the ministerial exception also serves as a structural safeguard 

against judicial meddling in religious disputes. As a structural safeguard, 

the ministerial exception protects religious bodies from the suit itself—

unlike most affirmative defenses that protect only against liability. 

A. Affirmative defenses that immunize a party from suit must 

serve some value of a high order. 

The nature of the ministerial exception matters because appellate 

jurisdiction ordinarily arises only after the district court has entered a final 

order. 28 U.S.C. § 1291. But some orders warrant earlier appellate review 

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4 

because they concern not just a defense against liability but also a “right 

not to stand trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This 

right exists only rarely, when it’s “embodied in a constitutional or 

statutory provision entitling a party to immunity from suit.” Digit. Equip. 

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 874 (1994). 

 We proceed cautiously when characterizing a defense as a protection 

from the suit itself rather than just liability. Will v. Hallock, 546 U.S. 345, 

350 (2006). For this characterization, we consider whether delayed review 

would “imperil . . . a substantial public interest or some value of a high 

order.” Mohawk Indus. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting 

Will, 546 U.S. at 352–53). The Supreme Court has identified values of a 

“high order” in defenses involving qualified immunity, absolute immunity, 

Eleventh Amendment immunity, and double jeopardy. Will, 546 U.S. 

at 352. These defenses serve values of a high order like the separation of 

powers, the efficiency of government, the discretion of governmental 

officials, the State’s dignitary interests, and the mitigation of power 

imbalances between governmental and private litigants. Id. at 352–53. 

 Consider qualified immunity, which shields government officials 

from suits for damages unless the official violates a clearly established 

federal constitutional or statutory right. The Supreme Court treats qualified 

immunity as “an immunity from suit rather than a mere defense to liability” 

because the costs of litigation “can be peculiarly disruptive of effective 

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5 

government.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis 

added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)). 

Government can be disrupted by 

 distracting “officials from their governmental duties,” 

 “inhibit[ing] discretionary action,” and 

 “deterr[ing] . . . able people from public service.” 

Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)). 

Consider also absolute immunity, which is an affirmative defense 

that prevents civil liability for official acts by certain governmental actors. 

Nixon v. Fitzgerald, 457 U.S. 731, 744–47, 755 (1982). This affirmative 

defense stems from the structural separation of powers among the branches 

of government. Id. at 748. Given the importance of this structural 

protection, the Supreme Court treats absolute immunity as immediately 

appealable. Id. at 742–43; see also Will, 546 U.S. at 352 (stating that 

immediate appealability in Nixon v. Fitzgerald was based on concern that 

delay of an appeal would compromise separation of powers). 

 And consider Eleventh Amendment immunity, which bars federal 

suits against states. P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

506 U.S. 139, 141, 144 (1993). To relieve states of burdensome suits and 

to ensure vindication of a state’s dignitary interests, the Supreme Court 

treats Eleventh Amendment immunity as immediately appealable, 

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6 

characterizing it as an affirmative defense protecting values of a high 

order. Will, 546 U.S. at 352–53. 

A final example involves the Double Jeopardy Clause, which protects 

an individual from being punished twice for the same offense. Abney v. 

United States, 431 U.S. 651, 661 (1977). Immediate appellate review is 

needed because the government’s prosecutorial power can subject 

individuals “to embarrassment, expense and ordeal . . . to live in a 

continuing state of anxiety.” Will, 546 U.S. at 352 (quoting Abney, 431 

U.S. at 661–62). 

B. The ministerial exception protects values of a high order by 

carrying out a constitutional mandate and preserving the 

structural separation of church and state. 

The ministerial exception also advances values of a high order, 

protecting religious bodies from burdensome litigation over religious 

doctrine and preserving the structural separation of church and state. These 

values compel courts to resolve application of the ministerial exception at 

an early stage of the litigation. Id. at 350–51. 

The unique nature of the ministerial exception stems from its origins 

in the Free Exercise and Establishment Clauses of the First Amendment, 

which “protect the right of churches and other religious institutions to 

decide matters ‘of faith and doctrine’ without government intrusion.” Our 

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Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020) 

(quoting Hosanna-Tabor, 565 U.S. at 186). 

The First Amendment’s protection extends to religious bodies’ 

employment matters. Without limitations on judicial meddling in 

employment disputes, religious bodies might skew their employment 

decisions. For example, a religious body might hesitate to fire a minister 

even in the face of doctrinal disagreements. “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.” Rayburn v. Gen. 

Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985). The 

potential cloud of litigation might also affect a religious body’s criteria for 

future vacancies in the ministry. See EEOC v. Cath. Univ. of Am., 83 F.3d 

455, 467 (D.C. Cir. 1996). 

The ministerial exception not only protects religious bodies from the 

need to skew their employment decisions, but also advances three 

structural values: 

1. Protection of a religious body’s internal governance 

2. Limitation on governmental power over religious matters 

3. Prevention of judicial encroachment in matters of religion 

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8 

First, in keeping with the Free Exercise Clause, the ministerial 

exception protects the internal governance of religious bodies by allowing 

them “to shape [their] own faith[s] and mission[s] through [the religious 

bodies’] appointments.” Id. The right to independently make employment 

decisions “ensures that the authority to select and control who will 

minister to the faithful—a matter ‘strictly ecclesiastical,’—is the church’s 

alone.” Id. at 194–95 (quoting Kedroff v. St. Nicholas Cathedral of Russian 

Orthodox Church in N. Am., 344 U.S. 94, 119 (1952)); see also Skrzypczak 

v. Roman Cath. Diocese, 611 F.3d 1238, 1243 (10th Cir. 2010) (“The 

ministerial exception preserves a church’s ‘essential’ right to choose the 

people who will ‘preach its values, teach its message, and interpret its 

doctrines, both to its own membership and to the world at large,’ free from 

the interference of civil employment laws.” (quoting Bryce v. Episcopal 

Church in the Diocese of Colo., 289 F.3d 648, 656 (10th Cir. 2002))). 

Second, under the Establishment Clause, the ministerial exception 

serves as a structural limit on governmental power over religious matters. 

See Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829, 836 

(6th Cir. 2015) (“The ministerial exception is a structural limitation 

imposed on the government by the Religion Clauses.”); Lee v. Sixth Mount 

Zion Baptist Church of Pittsburgh, 903 F.3d 113, 118 n.4 (3d Cir. 2018) 

(noting that the ministerial exception “is rooted in constitutional limits on 

judicial authority”); see also John Hart Ely, Democracy & Distrust: 

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A Theory of Judicial Review 94 (1980) (arguing that the Religion Clauses 

perform a “structural or separation of powers function”). The 

Constitution’s structural limitation prohibits governmental involvement “in 

religious leadership disputes.” Conlon, 777 F.3d at 836; see also Peter J. 

Smith & Robert Tuttle, Civil Procedure & the Ministerial Exception, 86 

Fordham L. Rev. 1847, 1880–81 (2018) (noting that the ministerial 

exception is “best understood as an effectuation of the Establishment 

Clause’s limits on governmental authority to decide strictly and purely 

ecclesiastical matters” (citing Hosanna-Tabor, 565 U.S. at 188–89)); Carl 

H. Esbeck, The Establishment Clause as a Structural Restraint on 

Governmental Power, 84 Iowa L. Rev. 1, 3–4 (1998) (arguing that the 

Establishment Clause serves as a “structural restraint on the government’s 

power to act on certain matters pertaining to religion”). 

Third, the ministerial exception confines the judiciary to issues 

requiring expertise in law, preventing judicial encroachment in matters of 

religion. Tomic v. Cath. Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 

2006), abrogated in part on other grounds, Hosanna-Tabor Evangelical 

Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). By confining 

courts to legal disputes, the ministerial exception preserves the separation 

of religious and legal realms, preventing “secular courts [from] taking on 

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10 

the additional role of religious courts, as if the United States were a 

theocracy.” Id. 

Given these structural values, three circuits have held that the 

ministerial exception—unlike most other affirmative defenses—can’t be 

waived. See Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, 903 

F.3d 113, 118 n.4 (3d Cir. 2018) (concluding that “the Church is not 

deemed to have waived [the ministerial exception] because the exception is 

rooted in constitutional limits on judicial authority”); Conlon v. 

InterVarsity Christian Fellowship/USA, 777 F.3d 829, 836 (6th Cir. 2015)

(concluding that “the Constitution does not permit private parties to waive 

the First Amendment’s ministerial exception” because “[t]his 

constitutional protection is . . . structural”); Tomic v. Cath. Diocese of 

Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006) (stating that “the ministerial 

exception . . . is not subject to waiver or estoppel”), abrogated in part on 

other grounds, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. 

EEOC, 565 U.S. 171 (2012). No circuit has reached a contrary conclusion. 

The majority argues that the three opinions are distinguishable 

because they 

 didn’t address whether the ministerial exception provides 

immunity from “litigation” (as opposed to immunity from 

liability), 

 addressed only whether a religious body could “waive (or 

forfeit) a ‘ministerial exception defense,’” and 

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 addressed waiver only after explaining that the claimant was a 

minister. 

These purported differences mean little. 

The majority is incorrect as to the first purported difference: The 

Sixth Circuit did treat the ministerial exception as a bar against the suit 

itself. In Conlon, the Sixth Circuit concluded that the ministerial exception 

was no longer waivable because the Supreme Court’s opinion in HosannaTabor had treated the ministerial exception as a bar to suit rather than just 

as a defense against liability. Conlon v. Intervarsity Christian 

Fellowship/USA, 777 F.3d 829, 836 (6th Cir. 2015) (citing Hosanna-Tabor 

Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 181–89 

(2012)); see pp. 15–16, below. 

The second purported difference fails to consider the courts’ reasons 

for treating the ministerial exception as nonwaivable. In Lee, for example, 

the parties didn’t raise the ministerial exception. Lee v. Sixth Mount Zion 

Baptist Church of Pittsburgh, 903 F.3d 113, 118 n.4 (3d Cir. 2018). But 

the Third Circuit considered the ministerial exception nonwaivable because 

it “is rooted in constitutional limits on judicial authority.” Id. In Conlon, 

the Sixth Circuit interpreted Hosanna-Tabor to prevent courts from ever 

considering the ministerial exception as waived because it “is a structural 

limitation imposed on the government by the Religion Clauses.” Conlon, 

777 F.3d at 836 (citing Hosanna-Tabor Evangelical Lutheran Church & 

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12 

Sch. v. E.E.O.C., 565 U.S. 171, 181–89 (2012)). As the Third and Sixth 

Circuits explained, they disallowed waiver because of the ministerial 

exception’s structural character. 

Finally, the majority states that the three courts discussed the merits 

(the claimant’s status as a minister) before discussing the inability to 

waive the ministerial exception. This statement is incorrect because Lee 

discussed waiver simultaneously with the merits. Lee, 903 F.3d at 118–23. 

Regardless of the sequence of these issues, however, why would the courts’ 

organization of their opinions render the content distinguishable? The 

parties didn’t raise the ministerial exception in any of these cases, but each 

circuit held that the court had to address the issue anyway because of its 

unique structural quality, setting it apart from most other affirmative 

defenses. 

C. Because the ministerial exception advances interests of a 

high order, the issue should be decided early in the 

litigation. 

The ministerial exception thus protects interests of a high order by 

maintaining the structural division between religious and governmental 

realms. Given these important interests, early resolution is necessary to 

avoid costly, burdensome litigation between religious bodies and their 

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13 

ministers.4 See Rayburn v. General Conference of Seventh-Day Adventists, 

772 F.2d 1164, 1171 (4th Cir. 1985) (stating that Title VII actions can be 

lengthy and subject churches to “subpoena, discovery, cross-examination, 

the full panoply of legal process designed to probe the mind of the church 

in the selection of its ministers”); see also EEOC v. Cath. Univ. of Am., 

83 F.3d 455, 467 (D.C. Cir. 1996) (concluding that the EEOC’s two-year 

investigation into a minister’s claim, combined with extensive pretrial 

inquiries and a trial, “constituted an impermissible entanglement with 

judgments that fell within the exclusive province of the Department of 

Canon Law as a pontifical institution”). And early resolution will soften 

the disruption into a religious body’s internal affairs. See Demkovich v. St. 

Andrew the Apostle Par., 3 F.4th 968, 982–83 (7th Cir. 2021) (expressing 

concern that litigation over the ministerial exception could “protract legal 

process” and “the very process of inquiry could ‘impinge on rights 

guaranteed by the Religion Clauses’” (quoting Rayburn, 772 F.2d at 1171 

4

 The majority faults Faith Bible for failing to cite “any case 

permitting an immediate collateral-order appeal challenging a court’s 

decision to decline to dismiss secular claims based on the Establishment 

Clause’s prohibition against courts’ excessive entanglement with religion.” 

Maj. Op. at 45 (emphasis in original). But Mr. Tucker hasn’t cited any case 

to the contrary. That’s not surprising because this issue is one of first 

impression; there have been no circuit court cases deciding the issue either 

way. 

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14 

(4th Cir. 1985) and NLRB v. Cath. Bishop of Chi., 440 U.S. 490, 502 

(1979))). 

D. The Supreme Court has characterized the ministerial 

exception as a bar to the suit (rather than just as a defense 

against liability). 

The Supreme Court held in Hosanna-Tabor that the “ministerial 

exception bars . . . a suit” over the religious body’s decision to fire the 

plaintiff. 565 U.S. at 196 (emphasis added).5

 By using the words “bar” and 

“suit,” the Supreme Court has recognized the function of the ministerial 

exception as a protection against litigation itself (rather than just as a 

defense against liability). 

The majority suggests that I’m putting too much stock in the 

Supreme Court’s choice of a verb (bar). But I’m putting little stock in the 

verb bar. The Supreme Court concluded that that the ministerial exception 

serves to “bar[] . . . a suit.” Hosanna Tabor, 565 U.S. at 196. Substitute 

any synonym for bar, such as prevent. See Bryan A. Garner, Garner’s 

Dictionary of Legal Usage 103 (3d ed. 2001) (“Bar means ‘to prevent 

5

 Similarly, our court discussed the issue in Bryce v. Episcopal Church 

in the Diocese of Colorado, stating that the ministerial exception “prevents 

adjudication of Title VII cases brought by ministers against churches.” 

Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 656 

(10th Cir. 2002) (emphasis added). The majority argues we cannot rely on 

Bryce because the holding ultimately turned on the church autonomy 

doctrine. See Maj. Op. at 39 n.20. But there we considered the ministerial 

exception as a part of the church autonomy doctrine. Id. at 656. 

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15 

(often by legal obstacle).’”). The Supreme Court paired this verb with the 

direct object suit, which means “[a]ny proceeding by a party or parties 

against another in a court of law.” Suit, The Black Law Dictionary

(11th ed. 2019). The Supreme Court’s language was unmistakable: It 

characterized the ministerial exception as a defense that would prevent the 

proceeding itself. I think that we should take the Supreme Court’s choice 

of words at face value, for “a good rule of thumb for reading [the Supreme 

Court’s] decisions is that what they say and what they mean are one and 

the same.” Mathis v. United States, 136 S. Ct. 2243, 2254 (2016). 

The Sixth Circuit has addressed this aspect of Hosanna-Tabor. Prior 

to Hosanna-Tabor, the Sixth Circuit had held that a religious body could 

waive the ministerial exception. Hollins v. Methodist Healthcare, Inc., 

474 F.3d 223, 226 (6th Cir. 2007). But the Sixth Circuit later concluded 

that the ministerial exception was no longer waivable because HosannaTabor had treated the ministerial exception as a bar to the suit itself. 

Conlon v. Intervarsity Christian Fellowship/USA, 777 F.3d 829, 836 

(6th Cir. 2015). For this conclusion, the court drew upon two of HosannaTabor’s key passages: 

1. “[T]he Establishment Clause . . . prohibits government 

involvement in ecclesiastical matters.” 

2. “It is ‘impermissible for the government to contradict a 

church’s determination of who can act as its ministers.’” 

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Id. (alteration in original) (quoting Hosanna-Tabor, 132 S. Ct. at 704, 

706). 

Despite the Supreme Court’s characterization of the ministerial 

exception as a bar to suit, Mr. Tucker argues that we should not construe 

the ministerial exception as “a jurisdictional bar.” Appellee’s 

Jurisdictional Memorandum at 11. He is correct: The ministerial exception 

doesn’t prevent the district court from hearing the case. So the ministerial 

exception doesn’t prevent jurisdiction over the subject-matter or the 

parties. In this respect, the ministerial exception resembles other 

nonjurisdictional defenses like qualified immunity and absolute immunity. 

See Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no authority 

whatsoever for the proposition that absolute- and qualified-immunity 

defenses pertain to the court’s jurisdiction . . . .”). Though these 

affirmative defenses aren’t “jurisdictional” in district court, they trigger 

the collateral-order doctrine to create appellate jurisdiction. See Maj. Op. 

at 22 (qualified immunity); id. at 32 n.14 (absolute immunity). 

E. These values are not undermined by Mr. Tucker’s contrasts 

with other immunities. 

The ministerial exception does bear some differences with other 

affirmative defenses like qualified immunity and absolute immunity. The 

primary difference involves waivability: Unlike those immunities, the 

ministerial exception is considered nonwaivable because of its structural 

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17 

character. See Hicks, 533 U.S. at 373; pp. 10–12, above.6

 Mr. Tucker 

nonetheless suggests three other differences between the ministerial 

exception and other immunities. These differences prove little. 

First, Mr. Tucker argues that the ministerial exception does not 

provide blanket immunity from all civil liability. He’s right about that. See 

Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 

(2020) (stating that the ministerial exception “does not mean that religious 

institutions enjoy a general immunity from secular laws”). Religious 

bodies remain subject to many civil and criminal laws. See, e.g., Emp. 

Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990) (holding 

that the government may enforce neutral and generally applicable laws 

despite religious objections). 

The ministerial exception involves only an immunity from trial in 

employment disputes between a religious body and its ministers. See Our 

Lady of Guadalupe, 140 S. Ct. at 2060 (“[The ministerial exception] does 

protect their autonomy with respect to . . . the selection of the individuals 

who play certain key roles.”); Skrzypczak v. Roman Cath. Diocese, 

611 F.3d 1238, 1246 (10th Cir. 2010) (concluding that the ministerial 

6

 The Eleventh Amendment is jurisdictional, Colby v. Herrick, 849 

F.3d 1273, 1278 (10th Cir. 2017), but it too can be waived. Sutton v. Utah 

St. Sch. for the Deaf & Blind, 173 F.3d 1226, 1233–34 (10th Cir. 1999). 

Though waivable, Eleventh Amendment immunity can still trigger the 

collateral-order doctrine. See pp. 5–6, above. 

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18 

exception bars ministers’ pursuit of employment claims). The ministerial 

exception doesn’t shield religious bodies from all secular laws. 

Because of this limitation, the majority points out that religious 

employers can be sued “by non-ministerial employees” for discriminating 

in employment. Maj. Op. at 35. But this distinction proves little. We 

protect a religious body’s authority over the employment of ministers 

because of the Religion Clauses. See Hosanna-Tabor Evangelical Lutheran 

Church & Sch. v. EEOC, 565 U.S. 171, 196 (2012) (concluding that the 

First Amendment elevates the interest of religious bodies in choosing their 

ministers). So ministerial employees can’t sue even though other 

employees can. The distinction serves the structural purpose of the 

Religion Clauses, preventing judicial intrusion into a religious body’s 

employment of ministers. See Part III(B), above. On the other hand, 

employment of secular employees doesn’t implicate the structural purpose 

of the Religion Clauses. 

 Second, Mr. Tucker argues that the benefits from protections like 

qualified immunity should be reserved for government officials, not private 

parties.7

 As the majority observes, however, the collateral-order doctrine 

7

 Mr. Tucker suggests that the ministerial exception should provide no 

immunity to religious bodies. But the Supreme Court has rejected that 

suggestion. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 

565 U.S. 171, 188 (2012); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 

140 S. Ct. 2049, 2060 (2020). 

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applies to private parties as well as governmental parties. Eisen v. Carlisle 

& Jacquelin, 417 U.S. 156 (1974); Swift & Co. Packers v. Compania 

Colombiana Del Caribe, S.A., 339 U.S. 684 (1950); Cohen v. Beneficial 

Indus. Loan Corp., 337 U.S. 541 (1949)). For example, we’ve recognized 

appellate jurisdiction under the collateral-order doctrine when private 

parties clashed over a state law. Los Lobos Renewal Power LLC v. 

Americulture, Inc., 885 F.3d 659, 661 (10th Cir. 2018). Other circuits have 

also applied the collateral-order doctrine to appeals by private parties. See 

Black v. Dixie Consumer Prods. LLC, 835 F.3d 579, 583–84 (6th Cir. 2016) 

(stating that the Sixth Circuit and other federal appellate courts have 

frequently applied the collateral-order doctrine to private parties); see also 

United States v. Bescond, 7 F.4th 127, 131 (2d Cir. 2021) (applying the 

collateral-order doctrine in permitting an interlocutory appeal by a private 

party on the issue of fugitive status). 

 Finally, Mr. Tucker urges us to follow the Seventh Circuit Court of 

Appeals, stating that it has declined to apply the collateral-order doctrine 

to the ministerial exception. See Herx v. Diocese of Fort Wayne-South 

Bend, Inc., 772 F.3d 1085 (7th Cir. 2014). As the majority observes, 

however, the Seventh Circuit didn’t address the applicability of the 

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20 

collateral-order doctrine to the ministerial exception. Maj. Op. at 31 

(citing Herx, 772 F.3d at 1088, 1091 n.1).8

 In sum, the ministerial exception protects interests like those 

advanced by qualified immunity, absolute immunity, and Eleventh 

Amendment immunity. For example, the ministerial exception 

 protects the First Amendment right of free exercise by 

insulating religious bodies from costly and burdensome 

litigation over purely religious decisions on who may serve as a 

minister and 

 functions as a structural limitation, preserving religious 

independence and the separation of church and state. 

These functions distinguish the ministerial exception from other run-ofthe-mill affirmative defenses to liability. Given these differences, the 

ministerial exception protects not only against liability but also against the 

suit itself. 

8

 Herx lacks any persuasive value because it relied only on the 

religious body’s failure to present “a persuasive case” that the ministerial 

exception satisfied the collateral-order doctrine. Herx v. Diocese of Fort 

Wayne-South Bend, Inc., 772 F.3d 1085, 1091 (7th Cir. 2014). For this 

conclusion, the Seventh Circuit relied on deficiencies in the briefing, 

stating that the religious body had focused mainly “on the merits,” spent 

“only a few sentences” on jurisdiction, and failed to cite relevant 

authority. Id. at 1090–91. In our appeal, however, the parties have fully 

briefed the applicability of the collateral-order doctrine. 

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21 

F. The majority errs by discounting the value of early judicial 

review based on unidentified factual disputes. 

When addressing qualified immunity, district courts sometimes deny 

summary judgment based on factual disputes. See Sawyers v. Norton, 962 

F.3d 1270, 1281 (10th Cir. 2020). The majority asserts that in this 

circumstance, the Supreme Court disallows “an immediate appeal” because 

the costs outweigh the benefits. Maj. Op. at 21–22. Based on this assertion, 

the majority argues that we should disallow an immediate appeal because 

the district court denied Faith Bible’s motion for summary judgment based 

on factual disputes. Id. at 23–24 n.8. 

The majority’s argument starts with a faulty premise: The district 

court didn’t identify any factual disputes. So we need not disallow “an 

immediate appeal.” The majority disagrees, stating that the court did 

identify a factual dispute—Mr. Tucker’s status as a minister. But status as 

a minister is a question of law, not fact. See Conlon v. Intervarsity 

Christian Fellowship/USA, 777 F.3d 829, 833 (6th Cir. 2015) (stating that 

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

law”); Kirby v. Lexington Theol. Seminary, 426 S.W.3d 597, 608–09 

(Kan. 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 

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22 

trial court, to be handled as a threshold matter.”).9

 Granted, the inquiry is 

fact-dependent and considers the employee’s title, qualifications, and 

responsibilities. But the ultimate question of ministerial status entails a 

matter of law. 

Though the district court found a disagreement over ministerial 

status, the court didn’t identify any evidentiary disputes over Mr. Tucker’s 

title, job, or duties. The court instead referred only to a disagreement as to 

“the totality of the facts and circumstances of [Mr. Tucker’s] 

employment.” Appellant’s App’x vol. 1, at 281. 

In qualified immunity cases, when the district court doesn’t identify 

any factual disputes, we 

 “review the record to determine what facts the district court 

likely assumed,” Armijo ex rel., Chavez v. Wagon Mound Pub. 

Schools, 159 F.3d 1253, 1261 (10th Cir. 1998), and 

 “ask de novo whether sufficient evidence exists” for a 

conclusion that the plaintiff overcame qualified immunity, 

Lewis v. Tripp, 604 F.3d 1221, 1228 (10th Cir. 2010). 

So when we consider qualified immunity, the district court’s reliance on 

unidentified factual disputes won’t prevent application of the collateral9

 The majority states that we treated the ministerial exception as a 

factual question in Skrzypczak v. Roman Cath. Diocese of Tulsa, 611 F.3d 

1238, 1243–44 (10th Cir. 2010). In Skrzypczak, however, we never 

addressed whether the ministerial exception involved a matter of law or 

fact. See id. We simply upheld the religious body’s motion for summary 

judgment, considering the evidence as to the claimant’s job description and 

responsibilities. Id. at 1243–46. 

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23 

order doctrine. Id. The same is true here: Unidentified factual disputes 

don’t prevent application of the collateral-order doctrine to the ministerial 

exception. 

IV. The ministerial exception satisfies the collateral-order doctrine. 

Generally, appellate jurisdiction exists only after the district court 

has issued a final order. 28 U.S.C. § 1291. But we can sometimes deem a 

narrow class of orders final even if they do not end the litigation. Gelboim 

v. Bank of Am. Corp, 574 U.S. 405, 414 n.5 (2015) (quoting Cohen v. 

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). These orders are 

reviewable under the collateral-order doctrine. Id. 

The collateral-order doctrine contains three elements: 

1. The order conclusively determined an issue. 

2. That issue is completely separate from the merits. 

3. The decision on this issue would be effectively unreviewable 

after the final judgment. 

Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 664 

(10th Cir. 2018). We apply these elements to categories of orders rather 

than to individual orders, weighing “the inconvenience and costs of 

piecemeal review” against “the danger of denying justice by delay on the 

other.” Id. (quoting Johnson v. Jones, 515 U.S. 304, 315 (1995)). “The 

latter end of that scale has often tipped in favor of constitutionally based 

immunities.” Id.

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Given the district court’s ruling and the ministerial exception’s 

interests of a high order, the three elements of the collateral-order doctrine 

are met. 

1. The district court’s order conclusively determined the 

applicability of the ministerial exception. 

The first element requires a district court’s conclusive determination 

of the issue. See pp. 22–23, above. A district court conclusively decides an 

issue “if it is not subject to later review or revision by the district court.” 

Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 665 

(10th Cir. 2018). 

The district court’s decision conclusively determines the religious 

body’s immunity from suit. If the court were to defer consideration to the 

end of the case, the religious body would lose its protection from the trial 

itself. Subjected to suit, the religious body could suffer judicial meddling 

in religious doctrine, expensive and time-consuming litigation over the 

content and importance of religious tenets, and blurring of the line between 

church and state. See Part III(B)–(C), above. 

Mr. Tucker points out that the religious body could ultimately appeal 

when the case finishes. But that’s also true of qualified immunity, absolute 

immunity, and Eleventh Amendment immunity. Though the defendants 

might ultimately prevail based on these immunities, deferral of an appeal 

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25 

would conclusively determine the need to stand trial on the plaintiff’s 

claims. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). 

Mr. Tucker also argues that the district court declined to decide the 

issue rather than conclusively deny application of the ministerial 

exception. The district court did say that it was deferring consideration of 

Mr. Tucker’s status as a minister. But the ruling effectively denied Faith 

Bible’s claim to immunity from suit. The ruling on the ministerial 

exception thus satisfies this element of the collateral-order doctrine. See 

id. at 537 (stating that “the court’s denial of summary judgment finally and 

conclusively determines the defendant’s claim of right not to stand trial on 

the plaintiff’s allegations” (emphasis in original)). 

The majority does not definitively answer whether the first element 

is satisfied here. Instead, the majority states that the element is likely 

absent because of genuine issues of disputed fact. But the district court 

doesn’t identify any factual disputes. See Part III(F), above. So I would 

conclude that the district court’s order satisfied the first element, 

conclusively denying Faith Bible’s immunity from suit. 

2. The applicability of the ministerial exception is completely 

separate from the merits of the employment dispute. 

The second element entails complete separation from the merits. See 

pp. 22–23, above. Complete separation exists when the issue differs 

significantly “from the fact-related legal issues” underlying the merits of 

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the plaintiff’s claim. Los Lobos Renewable Power, LLC v. Americulture, 

Inc., 885 F.3d 659, 665 (10th Cir. 2018) (quoting Johnson v. Jones, 

515 U.S. 304, 314 (1995)). The majority finds satisfaction of this element 

because the ministerial exception presents an important First Amendment 

issue, which is distinct from the merits of the underlying employment 

discrimination claim. Maj. Op. at 26. I agree. 

3. If an appeal must await entry of a final order, the immunity 

from suit would become unreviewable. 

The third element is satisfied when interlocutory review is needed 

because the matter would otherwise become unreviewable. See pp. 22–23, 

above. 

Mr. Tucker points out that when the district court denies summary 

judgment on the ministerial exception, the defendant can reassert the issue 

later, moving for judgment as a matter of law or even filing a postjudgment motion. But that’s true of other defenses like qualified immunity 

or absolute immunity. 

Though appellate courts can address the ministerial exception (like 

qualified immunity or absolute immunity) at the end of the case, deferral 

of the appeal could subject the religious body to burdensome discovery, 

trial, and post-judgment motions. The eventual ability to appeal would thus 

come at a cost, protecting the religious body from liability but not from the 

suit itself. See Part III(B)–(C), above. 

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* * * 

For these reasons, the denial of the ministerial exception on summary 

judgment satisfies the collateral-order doctrine. We thus have jurisdiction. 

V. I would conduct de novo review of the denial of summary 

judgment. 

On the merits, we should conduct de novo review. Skrzypczak v. 

Roman Cath. Diocese, 611 F.3d 1238, 1243 (10th Cir. 2010). For this 

review, we consider the evidence in the light most favorable to the 

nonmoving party (Mr. Tucker). Id. Summary judgment would be 

appropriate if “there is no genuine issue as to any material fact” and the 

movant (Faith Bible) “is entitled to judgment as a matter of law.” Id.

(quoting Fed. R. Civ. P. 56(c)).

When applying this standard to assess qualified immunity, we credit 

the district court’s assessment of facts that a reasonable jury could find. 

See Estate of Booker v. Gomez, 745 F.3d 405, 409 (10th Cir. 2014). I 

would follow this approach, determining whether Mr. Tucker was a 

minister based on the district court’s assessment of facts that a reasonable 

jury could have found. 

VI. The ministerial exception applies as a matter of law. 

The ministerial exception bars courts from considering an 

employment claim brought by a minister against a religious body. Our 

Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020). 

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The parties do not dispute that Faith Bible is a religious body. So we need 

only consider whether Mr. Tucker was working as a minister. 

A. Multiple factors bear on his status as a minister. 

No rigid formula exists for determining whether an employee worked 

as a minister. Hosanna-Tabor Evangelical Church & Sch. v. EEOC., 565 

U.S. 171, 190 (2012). Without a rigid formula, we must consider the 

Supreme Court’s two cases involving teachers at religious schools: 

Hosanna-Tabor and Our Lady of Guadalupe. 

In Hosanna-Tabor, the Supreme Court considered four factors to 

characterize a religious school’s teacher as a minister: 

1. whether the school had held the teacher out as a minister, 

2. what the teacher’s title had been and what her religious 

education had entailed, 

3. whether the teacher had held herself out as a minister, and 

4. what the teacher’s job responsibilities had been. 

Id. at 191–92. In applying these factors, the Court observed that the school 

had held the teacher out as a minister, that she had retained the title of a 

“commissioned minister,” that she had identified as a minister “call[ed] to 

religious service,” and that her duties had “reflected a role in conveying 

the Church’s message and carrying out its mission.” Id. Given these 

circumstances, the Court regarded the teacher as a minister. Id.

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 In Our Lady of Guadalupe, the Supreme Court regarded two teachers 

at a religious school as ministers. 140 S. Ct. at 2049. The Court clarified 

that “a variety of factors may be important,” including factors beyond 

those considered in Hosanna-Tabor. Id. at 2063. The importance of the 

factors will vary from case to case. Id. And the “religious institution’s 

explanation [of an employee’s role] in the life of the religion in question is 

important,” but not dispositive. Id. at 2066. “What matters,” the Court 

explained, “is what an employee does.” Id. at 2064 (emphasis added). The 

Court explained that teachers at religious schools often act as ministers 

when fulfilling the school’s mission of instructing students in matters of 

faith: 

The religious education and formation of students is the very 

reason for the existence of most private religious schools, and 

therefore the selection and supervision of the teachers upon 

whom the schools rely to do this work live at the core of their 

mission. Judicial review of the way in which religious schools 

discharge those responsibilities would undermine the 

independence of religious institutions in a way that the First 

Amendment does not tolerate. 

Id. at 2055. 

In determining that the two teachers had worked as ministers, the 

Court considered three factors: 

1. “[T]hey both [had] performed vital religious duties.” 

2. They had been “obliged to provide instruction about the 

Catholic faith” and “to guide their students, by word and deed, 

toward the goal of living their lives in accordance with the 

faith.” 

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3. The religious school [had] “expressly [seen the two teachers] as 

playing a vital part in carrying out the mission of the church.” 

Id. at 2066. 

 Relying on Hosanna-Tabor and Our Lady of Guadalupe, Faith Bible 

argues that Mr. Tucker worked as a minister in his capacities as a teacher 

and as a Director of Student Life/Chaplain.10 In addressing this argument, 

we credit the district court’s assessment of the facts that a reasonable jury 

could have found. See Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 

(10th Cir. 2013). The district court concluded that a reasonable jury could 

have found that under Mr. Tucker’s version, he hadn’t acted as a minister. 

Appellant’s App’x vol. 1, at 284. So I would credit Mr. Tucker’s version 

and other undisputed facts as summarized in the district court’s order. Id.

at 277–82, ¶¶ 1–17. 

10 Mr. Tucker had lost his position as a Director of Student 

Life/Chaplain before his employment at the school came to an end. For 

about a month, he had served only as a teacher. See Part I, above. 

 The change led the panel to ask the parties about the pertinent timeperiod for the ministerial exception. Was it (1) when Mr. Tucker was a 

director/chaplain and a teacher or (2) when he was just a teacher? I would 

not decide this issue because Mr. Tucker acted as a minister in both timeperiods. See Part VI(B)–(C), below. 

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B. As a Director of Student Life/Chaplain, Mr. Tucker was a 

minister. 

Under Mr. Tucker’s version and other undisputed facts, he qualified 

as a minister in his role as Director of Student Life/Chaplain. 

Mr. Tucker testified that he had held himself out to the students not 

only as “the Director of Student Life,” but also as the “Chaplain.” Id. 

at 373. As the Chaplain, Mr. Tucker had acknowledged focusing on the 

students’ “physical, rational, and spiritual wellbeing.” Id. His focus on 

spiritual wellbeing is reflected in 

 his title and training, 

 the school’s explanation to Mr. Tucker of his role, and 

 his responsibilities. 

Title and Training 

From August 2014 to January 2018, Mr. Tucker served as a Director 

of Student Life/Chaplain at Faith Christian Academy. Appellant’s App’x 

vol. 1, at 278. The parties dispute whether 

 Mr. Tucker had the primary title of “Director of Student Life” 

or “Chaplain” and 

 Faith Bible told Mr. Tucker that he was not a minister for tax 

purposes. 

Though Mr. Tucker disputes his primary title, he described his 

position as “Director of Student Life/Chaplain” and admitted that his 

employment contract and extensions had referred to his job as “Chaplain.” 

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Id. at 208–09, 271, 277, 280. These references bear significance because 

the Supreme Court has considered job titles in determining the ministerial 

status. Our Lady of Guadalupe, 140 S. Ct. at 2056–57; Hosanna-Tabor, 

565 U.S. at 191. Mr. Tucker’s title as Chaplain reflects religious 

leadership. 

The School’s Explanation of Mr. Tucker’s Role 

The school’s explanation of Mr. Tucker’s role, though not 

dispositive, is “important.” Our Lady of Guadalupe, 140 S. Ct. at 2066. 

In 2017, Mr. Tucker signed the school’s Extension Agreement for the 

position of Chaplain. The agreement states: 

The Superintendent of Faith Christian Academy . . . discussed 

with Employee the necessity that the hand of the Lord be on 

Employee and that he/she exhibits the gift necessary to perform 

in the position of Chaplain. Employee expressed his/her belief 

that he/she has this gift and that God has called him/her to 

minister this gift at [the school]. 

Appellant’s App’x vol. 1, at 99, 275. 

Under the extension agreement, the school required that the “hand of 

the Lord” be on Mr. Tucker as its “Chaplain.” Mr. Tucker thus accepted a 

call to minister to the school community, and the school held Mr. Tucker 

out as a religious leader. 

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Responsibilities 

As a Director of Student Life/Chaplain, Mr. Tucker bore 

responsibility for religious leadership. He emphasizes that these 

responsibilities included 

 organization of “religiously oriented” chapel services, 

 spiritual guidance and counseling, 

 endorsement of Christianity, 

 integration of “a Christian worldview” in his teaching, 

 “a passionate relationship with Jesus Christ,” and 

 assistance to students in developing their relationships with 

Jesus Christ. 

Appellee’s Jurisdictional Memorandum at 3, 5; Appellee’s Resp. Br. at 47. 

These characterizations are supported by the summary-judgment record, 

which showed Mr. Tucker’s organization of “weekly chapel meetings” 

consisting of “‘assemblies or symposiums’” where people with a variety of 

religious or nonreligious perspectives would address “matters of interest at 

the school.” Appellant’s App’x vol. 1, at 281. 

The chapels included some secular activities, like “announcements, 

awards, rallies, student election speeches, and other ordinary high schoolrelated matters.” Id. But Mr. Tucker describes the chapels as “religiouslyoriented discussion groups.” Appellee’s Jurisdictional Memorandum at 3.

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In a presentation to students, Mr. Tucker described his duties as “the 

physical, relational, and spiritual wellbeing” of students and planning 

“chapels, retreats, outreach projects, and student mentoring opportunities 

that are designed to provide opportunities for student spiritual growth.” 

Appellant’s App’x vol. 1, at 271. 

Mr. Tucker’s extension agreement also required obedience to 

scripture and attendance at prayer sessions and church services. Id. at 100, 

275. Though Mr. Tucker had some secular duties as a Director of Student 

Life/Chaplain, many aspects of his work were religious. See Scharon v. St. 

Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 362–63 (8th Cir. 

1991) (stating that the position of “Chaplain” was “primarily a 

‘ministerial’ position” despite the performance of some “secular activities 

in that role”); see also Hosanna-Tabor, 565 U.S. at 193 (rejecting the 

argument that ministers “perform exclusively religious functions” because 

“heads of congregations themselves often have a mix of duties, including 

secular ones”). Mr. Tucker had to organize religiously-oriented chapels 

and discussion groups “designed to provide opportunities for student 

spiritual growth.” Appellant’s App’x vol. 1, at 271. He was also 

responsible for spiritual counseling. 

* * * 

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Based on all of the circumstances, I would conclude that the 

undisputed facts show that Mr. Tucker acted as a minister in his capacity 

as a Director of Student Life/Chaplain. 

C. Mr. Tucker also served as a minister in his role as a teacher. 

Mr. Tucker also qualified as a minister in his role as a teacher. 

Title and Training 

Mr. Tucker not only served as a Director of Student Life/Chaplain 

but also taught at the school from August 2000 to July 2006 and August 

2010 to February 2018. Id. at 278–279. The school’s handbook gave 

teachers the title of “minister.” Id. at 276. 

The title as a minister reflected “a significant degree of religious 

training.” Hosanna-Tabor, 565 U.S. at 191. When Mr. Tucker applied as a 

teacher, he stressed his credentials in the ministry, stating that 

 he had participated in Campus Ministry, Campus Crusade for 

Christ, Young Life International, and Malibu Presbyterian 

college group leadership and worship team, 

 he had worked “extensive[ly] . . . in ministry,” 

 he was “a dedicated Christian,” and 

 he had a “Christian philosophy of education.” 

Appellant’s App’x vol. 2, at 471. His asserted credentials bore the 

traditional hallmarks of a job in the ministry. 

 In his declaration, Mr. Tucker denies “specific training in the Bible” 

in comparison to teachers who taught “Bible” as a subject. Appellant’s 

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App’x vol. 1 at 206. But his own emphasis of his religious background and 

relevant credentials reflects an awareness of his religious duties. See 

Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 659–60 

(7th Cir. 2018) (concluding that the ministerial exception was supported by 

a teacher’s touting of her experience in teaching religion). 

 Mr. Tucker insists that no religious training was required for his job. 

But the Supreme Court has stated that the ministerial exception doesn’t 

require religious training. In Our Lady of Guadalupe, for example, the 

Supreme Court found satisfaction of the ministerial exception despite the 

claimant’s “limited formal religious training.” 140 S. Ct. at 2058. The 

Court explained that insistence “on rigid academic requirements could have 

a distorting effect” because “religious traditions may differ in the degree 

of formal religious training thought to be needed in order to teach.” Id. 

at 2064. So the absence of requirements for religious training would not 

prevent application of the ministerial exception. 

The School’s Explanation of Mr. Tucker’s Role 

The teacher handbook also reflects the religious character of the job: 

To become a teacher or full time worker at Faith Christian 

Academy is a calling from the Lord Jesus Christ to minister. You 

are joining this ministry, not as an employee, but as a minister 

to [the school’s] students and families. [The school]’s ministry 

focus emphasizes the following items: 

1. [The school] desires to provide an academic program 

that is based on the scriptural principles found in the Word of 

God, the Holy Bible. [Academy] teachers are committed to the 

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integration of biblical truth within each academic and extracurricular discipline.11 Additionally, teachers are responsible to 

facilitate godly character development, teach good study habits 

and encourage academic excellence. Each teacher must be 

thoroughly prepared and use effective instructional methods and 

techniques. 

2. Although [the school] is a Christian academic 

institution, an additional emphasis is placed upon the spiritual 

life of all students. [The school]’s desire is to train and lead 

students into attitudes and habits, which will bring them to 

Christ-like maturity. This includes encouraging all students to 

develop a prayer life, a passion to share to [sic] Gospel message, 

and characteristics such as honesty, humility, purity, 

faithfulness, love, and service. . . .12

3. All staff members must be aware of the importance of 

our ministry to one another. Each teacher needs to be open to 

the Holy Spirit to offer words of encouragement, prayer, and 

concern for one another. It is important that teachers be willing 

to work as a team, make and receive positive suggestions, stand, 

as much as possible, with fellow teachers (especially in times of 

hardship), and guard the reputation of others. Trusting in the 

Lord in areas of personal needs as well as school needs and 

looking to Him as the primary source of wisdom, help, 

knowledge, and strength is critical. 

Appellant’s App’x vol. 1, at 109, 276 (emphasis added). 

11 Mr. Tucker’s declaration echoes his understanding that he was 

instructed to “‘integrate’ a Christian worldview into my teaching.” 

Appellant’s App’x vol. 1. at 207. 

12 The omitted portion of this quotation addresses whether staff 

members must guide “students who may not yet be born again” toward “an 

abiding relationship with Christ.” Mr. Tucker states that he was told to let 

doubting students address their concerns with parents or pastors. 

Appellant’s App’x vol. 1, at 208. So we do not rely on this portion of the 

handbook. 

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 Given the school’s explanation of teachers’ roles, the qualifications 

included religious dedication. For example, when Mr. Tucker applied, he 

had to say “[w]ithout mental or other reservation” that he believed in 

 the divine inspiration and infallibility of the Bible, 

 the existence of one God in the persons of God the Father, God 

the Son, and God the Holy Spirit, 

 the virgin birth, 

 the Lord Jesus Christ’s deity, sinless humanity, atoning death, 

bodily resurrection, ascension to his Father’s right hand, and 

future return in power and glory, 

 the need for every person to receive the gift of eternal life from 

Jesus Christ in order to reach heaven, 

 the ministry of the Holy Spirit, 

 the church as the spiritual body headed by Christ, 

 the principle of baptism through immersion, and 

 the eternal existence of all people in heaven or hell. 

Appellant’s App’x vol. 2, at 419. These requirements reflect Faith Bible’s 

consideration of teachers as religious leaders. 

Responsibilities 

Although Mr. Tucker referred to himself as a teacher rather than a 

minister, he taught at a Bible-based religious school. So he taught not only 

science, a secular subject, but also two classes in the Bible Department 

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called “Leadership” and “Worldviews and World Religions.” And Mr. 

Tucker’s duties as a teacher included four religious responsibilities: 

1. “Live in a vital relationship with God (Father, Son and Holy 

Spirit) as [the teacher] communicate[s] with Him through 

prayer and the Scriptures. John 15, Col. 3:25.” 

2. “Demonstrate daily a relationship with Jesus that is filled with 

grace and truth. John 1:14.” 

3. “To the greatest extent possible, live at peace with all, abstain 

from all appearance of evil, and refrain from gossip. Romans 

12:18, 1 Thessalonians 5:16–18 & Proverbs 26:20.” 

4. “Discern and follow the leading of the Holy Spirit throughout 

the day. Gal. 5:16–18.” 

Id. at 213; see also Our Lady of Guadalupe, 140 S. Ct. at 2065 (noting that 

teachers at religious schools often perform religious functions). These 

religious responsibilities support ministerial status. See Fratello v. 

Archdiocese of N.Y., 863 F.3d 190, 208 (2d Cir. 2017) (concluding that the 

substance of a lay principal’s duties supported the ministerial exception 

because they entailed “proficiency in religious leadership”). 

We address not only Mr. Tucker’s responsibilities but also the 

criteria used to evaluate his performance in determining his ministerial 

status. Our Lady of Guadalupe, 140 S. Ct. at 2057; Hosanna-Tabor, 565 

U.S. at 191. Mr. Tucker acknowledges that these criteria included 

consideration of his use of biblical principles and exhortation for his 

students to engage in worship and service. Appellant’s App’x vol. 1, 

at 208, 216 (“The staff member consistently illuminates Biblical principals 

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[sic] related to course material in a manner which leads students to 

evaluate their personal worldview and/or challenges them to respond via 

worship, service, etc.”). 

Mr. Tucker points out that he didn’t need to promote any particular 

Christian beliefs over others.13 He cites an out–of–circuit case, Dole v. 

Shenandoah Baptist, in arguing that teaching “all classes . . . from a 

pervasively religious perspective” and “subscrib[ing] to the Shenandoah 

statement of faith” were insufficient to trigger the ministerial exception. 

899 F.2d 1329, 1396 (4th Cir. 1990). 

Dole isn’t persuasive because it preceded Hosanna-Tabor and Our 

Lady of Guadalupe. Given the guidance from Hosanna-Tabor and Our Lady 

of Guadalupe, a court would need to consider Mr. Tucker’s obligation to 

teach from a Christian perspective, one that endorsed Christianity’s 

“worldview,” “integrate[d] a Christian worldview in his teachings,” and 

“endorse[d] Christianity in general terms.” Appellant’s App’x vol. 1 

at 279–80; see Hosanna-Tabor, 565 U.S. at 192; Our Lady of Guadalupe, 

140 S. Ct. at 2066. But Mr. Tucker went even further, for he acknowledged 

that his “main goal” was to educate students “to help them become more 

like Jesus Christ” because Christ was the “center” of his students’ 

13 He also asserts that school officials told him not to teach particular 

doctrines. For this assertion, he presents no evidence. 

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education. Appellant’s App’x, vol. 2, at 320. Mr. Tucker’s stated goals 

support ministerial status. 

D. The alleged denial of a tax benefit doesn’t prevent 

application of the ministerial exception. 

On appeal, Mr. Tucker argues that a factual issue existed because 

Faith Bible had denied a tax benefit to him on the ground that he wasn’t a 

minister. Mr. Tucker’s appellate brief contained a single sentence 

addressing the issue, stating: “[W]hen he asked the School about a tax 

benefit available to ministers, he was expressly told he ‘did not qualify 

because [he] was not a minister.’” Appellee’s Corrected Resp. Br. at 45 

(quoting Appellant’s App’x vol. 1, at 210).14 This sentence does not supply 

a meaningful reason to question Mr. Tucker’s status as a minister. See 

Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1122 

n.7 (10th Cir. 2014) (noting that issues not adequately briefed will not be 

considered on appeal). 

Even if we were to consider this assertion, it would not prevent 

summary judgment. Under the federal tax code, taxpayers enjoy a tax 

deduction if they 

 qualify as “minister[s] of the gospel” and 

14 In this sentence, Mr. Tucker cites his statement of facts, where he 

said: “At one point, Tucker inquired about whether he could take a 

parsonage allowance and he was told he could not.” Appellant’s App’x 

vol. 1, at 173. 

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 obtain compensation consisting of rental allowances or the 

rental value of the homes furnished to them as part of their 

salary. 

26 U.S. § 107. 

The requirements differ for the ministerial exception and the tax 

deduction. See Sally R. Wagenmaker, Ryan Oberly, & Paul Wintors, 

Religious Tax Reclassification for Public Charities, 33 Taxation of 

Exempts 34, 40 (2022) (stating that the requirements differ significantly 

for the ministerial exception and status under the tax code as a minister of 

the gospel). For example, status as a “minister of the gospel” requires an 

ordination, a commission, or a license “to perform sacerdotal functions.” 

Kirk v. Commissioner, 425 F.3d 492, 495 (D.C. Cir. 1970). No such 

requirement exists for the ministerial exception. See Alice-Hernandez v. 

Cath. Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003) (“In determining 

whether an employee is considered a minister for the purposes of applying 

[the ministerial] exception, we do not look to ordination but instead to the 

function of the position.”); Elvig v. Calvin Presbyterian Church, 375 F.3d 

951, 958 (9th Cir. 2004) (concluding that ordination is not required for the 

ministerial exception). 

Even if Mr. Tucker were a “minister of the gospel” under the tax 

code, the tax deduction would be available only if his compensation 

package included free housing or a rental allowance. And he hasn’t alleged 

either free housing or a rental allowance. So Mr. Tucker’s asserted 

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ineligibility for the tax deduction lacks any bearing on application of the 

ministerial exception. 

* * * 

A religious body may be entitled to summary judgment under the 

ministerial exception even when the pertinent factors cut both ways. See, 

e.g., Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 661 

(7th Cir. 2018) (concluding that a religious body was entitled to summary 

judgment under the ministerial exception when “at most two of the four 

Hosanna-Tabor factors are present”); Conlon v. Intervarsity Christian 

Fellowship/USA, 777 F.3d 829, 835 (6th Cir. 2015) (stating that the court 

didn’t need to consider two factors because the “ministerial exception 

clearly applies” when “formal title and religious function . . . are 

present”). Here, though, all of the factors support application of the 

ministerial exception. Mr. Tucker bore the titles of chaplain and teacher: 

The job title “Chaplain” reflected a role as spiritual leader, and the 

school’s handbook regarded teachers as ministers. Mr. Tucker’s role as a 

religious leader was apparent not only from his job titles but also in his 

responsibilities as the Director of Student Life/Chaplain and as a teacher. 

And he touted his religious experience when applying for a job. Given the 

prominent role of religion in Mr. Tucker’s positions, he would qualify as a 

minister even under his version of the facts. 

Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 93
44 

VII. Conclusion 

I would conclude that 

 jurisdiction exists under the collateral-order doctrine and 

 Faith Bible enjoyed immunity under the ministerial exception. 

Given these circumstances, I would reverse the denial of Faith Bible’s 

motion for summary judgment.15 

15 The parties agree that this conclusion applies equally to the claims 

under Title VII and Colorado law. See Maj. Op. at 9-10 n.2. 

Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 94