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 & DE FENDERS; HUMAN No. 20-1230 FILED United States Court of Appeals Tenth Circuit 

### June 7, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 12 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 TH E 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: 23 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-C V-01652-RBJ-STV)

________________ _________________ Daniel H. Blomberg (Daniel D. Benson a nd Christopher Mills, The Becket Fund for Religious Liberty, Washington, D.C., and Ch ristopher J. Conant and Robert W. Hatch, Hatch Ray Olsen Conant LLC, Denver, Colora do, with him on the briefs), The Becket Fund for Religious Liberty, Washin gton, D.C. for Defendant-Appellant. Bradley Girard (Richard B. Katskee, Amer icans United for Separation of Church and State, and Bradley A. Levin, Jeremy A. Sitcoff, and Pete r G. Friesen, Levin Sitcoff, PC, Denver, CO, with him on th e 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 jurisdic tional issue: Whether Appellant Faith Bible Chapel International can bring an immediate appeal under the collateral order doctrine challenging the district court’s in terlocutory decision to deny Faith summary judgment on its affirmative “min isterial exception” defens e. Faith operates a school, Faith Christian Academy (“Faith Christian” ). Plaintiff Gregory Tucker, a former high school teacher and admini strator/chaplain, alleges Fa ith Christian fired him in violation of Title VII (and Colorado co mmon law) for oppos ing alleged race Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 34 discrimination at the school. As a religious employer, Faith Christian generally must comply with anti-discrimination employm ent laws. But under the affirmative “ministerial exception” defense, those anti-discrimination laws do not apply to employment disputes between a religious em ployer and its ministers. Here, Faith Christian defended against Tucker’s race di scrimination claims by asserting that he was a “minister” for purpos es of the exception. The Supreme Court deems the determin ation of whether an employee is a “minister” to be a fact-inten sive inquiry that turns on the particular circumstances of a given case. Here, after permitting lim ited discovery on only the “ministerial exception,” the district court ruled that, because there are genuinely disputed material facts, a jury would have to resolve wh ether Tucker was a “minister.” Summary judgment for Faith Christian, therefore, was not warranted. Faith Christian immediately appealed that decision, seek ing to invoke our jurisdiction under the collateral order doctrine. The Supreme Court has stated time and ag ain that the collateral order doctrine permits a narrow exception to the usual 28 U.S.C. § 1291 require ment that we only review appeals taken from final judgments entered at the end of litigation. In deciding whether the collateral order doctr ine permits immediate appeals from the category of orders at issue here—o rders denying summary judgment on the “ministerial exception” because there remain disputed i ssues of material fact—we must weigh the benefit of an immediate a ppeal against the cost and disruption of allowing appeals amid ongoing litigation. After conducting th at balancing, we Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 45 determine that we do not have jurisdiction to consider this in terlocutory 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 Ch ristian’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 mini ster’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-juris dictional “structural” limitation on courts’ authority to hear Title VII claims. On that basis, Fa ith 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 Christia n’s argument. The Supreme Court has made clear that the “ministerial exception” is an affirmative de fense to employment discrimination claims, rather than a jurisdictional limitati on on the authority of courts to hear such claims. Furthe r, the “ministerial exception” is not analogous to qualified immunity available to government official s. The Supreme Court has only permitted immediate appeals from the denial of quali fied immunity when the issue presented for appeal is one of law, not fact. Here , on the other hand, the critical question for Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 56 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 pr otect, not individual go vernment officials, but rather the public’s intere st in a functioning government . That public interest is not present when a private religious employ er seeks to avoid liability under Title VII from employment discrimination claims. Faith Christian’s (and the dissent’s) ar gument for applicati on of the collateral order doctrine here contradi cts several well-e stablished 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 onl y narrowly, usually to review legal, rather than factual, dete rminations, see Johnson v. Jones, 515 U.S. 304, 307, 309–10, 313–18 (1995); - qualified immunity protect s 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-estab lished lines of Supreme Court precedent and, therefore, we rej ect Faith Christian’s (and the dissent’s) arguments for application of the collateral order doctrine he re. We conclude, instead, Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 67 that we lack jurisdiction over this interlocutory appeal a nd, therefore, DISMISS this appeal.
I. BACKGROUND
A. Relevant Facts Faith Christian Academy is a Christia n school offering Bibl e-based education from kindergarten through high school. Th e students and staff come from a wide array of religious perspectives. Tucker began teaching high sc hool science at the school in 2000. Later he also taught courses entitled “Lead ership” 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 201 7, Tucker was assigned the additional task of planning Faith Chris tian’s weekly “Chapel Meetings.” In January 2018, Tucker conducte d a chapel meeting—he calls it a symposium—on race and faith. Although Fa ith Christian initially congratulated Tucker on the presentation, that presentation was not we ll-received by some parents and students. As a result, the school relieved Tucker of his duties preparing and conducting weekly chapel meetings a nd soon thereafter removed him from his position as Director of Student Life. At the end of Febr uary 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 Fa ith Christian. Tucker asserted two Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 78 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), asserti ng the “ministerial ex ception.” The exception is rooted in the First Am endment, which “bar[s] the government from interfering with the decision of a religious group to fi re 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” th at 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 alle gations the plaintiff makes en title 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, 25 4 (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 cl aim under Title VI of the 1964 Civil Rights Act, which the district court dismissed. That dismissal is not at issue in this appeal. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 89 religious institution’s “secular employm ent decisions”), cited favorably in Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238, 1245–4 6 (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 affirm ative “ministerial ex ception” 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 th e “ministerial exception” and whether Tucker qualified as a minister. After the pa rties addressed those questions , the district court denied Faith Christian summary judgment, ruling that , while Faith Christian could assert the “ministerial exception,” the question of “whe ther 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 th ere is a genuine dispute of material fact as to whether Mr. Tucker was a ‘m inister’”).) The district court later denied Faith Christian’s motion for reconsideration. 2 Faith Christian immediately

2 There are at least three questions unde rlying the determination of whether the “ministerial exception” applies in a give n 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 as serting against the employer the type of claim that is s ubject to the “ministerial ex ception”? 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 disput es that Tucker’s Title VII and state law wrongful discharge claims are subject to the “ministerial excepti on.” See Puri v. Khalsa, 844 Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 910 appealed both decisions, invoking our ju risdiction under 28 U. S.C. § 1291 based on the collateral order doctrine. 3
II. DISCUSSION This case presents an important jurisd ictional question of first impression for this Court: whether a decision denying a re ligious employer summary judgment on its “ministerial exception” defense constitutes an immediately appealable final order under the collateral order doctrine. Ultim ately, we answer that question in the negative and conclude we lack appellate ju risdiction to consider this interlocutory appeal. In reaching that conclusion, we: (A) a ddress the scope of this appeal, which involves the “ministerial exception”; (B) discuss general colla teral-order-doctrine principles, the only justif ication Faith Christian invokes in support of its interlocutory appeal; and (C) apply those collateral-order pr inciples to the category of

F.3d 1152, 1158 (9th Cir. 2017) (recognizing “m inisterial 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 relig ious 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. In terVarsity Christian Fellowshi p, 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 in terlocutory “order i nvolves a controlling question of law as to whic h there is substantial ground for difference of opinion and that an immediate appeal from the orde r may materially advance the ultimate termination of the litigation.” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1011 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 wh at is not. Namely, this appeal involves only Faith Christian’s af firmative defense under the “ministerial exception,” not a defense under the broader c hurch autonomy doctrine. Although the two defenses share a common he ritage, they are distinct defenses; we constrain our analysis here to the “minis terial exception.” We begin by reviewing the similarities and differences between the two defenses. 1. The “Ministerial Exception” an d the Church Autonomy Doctrine Both defenses are grounded in the First Amendment, which protect[s] the right of chur ches and other religious institutions to decide matters “‘of faith and doctrine’” without government intrusion. Hosanna-Tabor, 565 U.S. at 186 (quoting Kedr off [v. St. Nicholas Cathedral of Russian Orthodox Church], 344 U.S. [94,] 116 [(1952)]). . . . The independence of religious instit utions in matters of “faith and doctrine” is closely linked to indepe ndence in what we have termed “‘matters of church government.’” [Hosanna-Tabor,] 565 U.S. at 186. This does not mean that religious in stitutions 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 th is autonomy is th e selection of the individuals who play certain key roles. Our Lady, 140 S. Ct. at 2060. The “ministerial excepti on” is a narrower offshoot of the broader church autonomy doctrine; it only precludes employment discrimi nation claims brought by a “minister” against his re ligious employer. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1112 [A] church’s independence on matters “o f 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, a nd counseling could contradict the church’s tenets and lead the congre gation away from the faith. The ministerial exception was recognized to preserve a chur ch’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 empl oyment 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 cogniza ble claim.” Hosanna-Tabor, 565 U.S. at 195 n.4. While these defens es are related, the thres hold 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 Dioces e 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 on e sense more broadly because it applies regardless of whether the dis pute 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 plai ntiff-employee qualifies as a “minister.” See id. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1213 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 f act-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 circ umstances into account and to determine whether each particular position implicated the fundamental purpose of th e exception”); see also id. at 2063 (stating that, “[i]n dete rmining whether a particular position falls within the Hosanna-Tabor exception, a variety of fa ctors may be importa nt.”); id. at 2066 (noting that in Our Lady “[t]here is abundant record evidence that [the plaintiffs-employees] both performed vital religious duties,” disc ussing that evidence at length); Hosanna-Tabor, 565 U.S. at 190–94 (considering, in significant detail, “all the circumstances of [the em ployee’s] employment”). Following those Supreme Court decisions, a number of circuit courts have also recognized the fact-intensive nature of th is inquiry. See Gru ssgott 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 He brew teacher can prope rly be considered ministerial is subject to a fact-intensive analysis” required by Hosanna-Tabor); Fratello v. Archdioces e, 863 F.3d 190, 206–10 (2d Cir. 2017) (conducting fact-intensive inquiry into whether employ ee 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, Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1314 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 cas e requires a fact-specific inqui ry.”); 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) (unrepor ted) (stating that “the Supreme Court’s decision in Hosanna-Tabor makes clear that the applica tion of the ministerial exception requires a factual inquiry to determine if the employ ee 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 author ity, 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 S upreme Court. First, the dissent relies on Conlon, a case decided post-Ho sanna-Tabor but before Our Lady. There, the Sixth Circuit stated that “whether the [ministerial] exception a ttaches at all is a pure question of law which th is court must determine for itse lf.” 777 F.3d at 833 (6th Cir. 2015). Conlon, however, made that statemen t in a Fed. R. Civ. P. 12(b)(6) context, where every determination is a legal one. Id . Further, as prev iously noted, a number of other circuits courts, fo llowing the Supreme Court, have instead recognized the fact-intensive inquiry neces sary to determine whether a plaintiff-employee was a “minister.” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1415 Second, the dissent mentions Skrzyp czak, 611 F.3d 1238 (10th Cir. 2010), a pre-Hosanna-Tabor case. A review of th e Skrzypczak opinion indicates that the Tenth Circuit treated the question of whet her 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 F ourth Circuit’s general standard for determining who qualifi es as a minister—“any employee who serves in a position that ‘is important to the spiritual and pastoral mi ssion 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 th e plaintiff-employee’ s job duties, determ ining that that “evidence . . . tends to show her position was not limited to a merely administrative role, but it also involved responsib ilities 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-empl oyee was a minister, sh ifting 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)). Skrzyp czak concluded only that the plainti ff-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 ad ministrative,” and continuing with the statement, taken almost verbatim fro m Rayburn, that “[the job] in no way required or involved a primary functio n of teaching, spreading the faith, Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1516 control of church governance, supervisi on of a religious or der, 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 fo rth facts that would be admissible in evidence; conclusory and self-ser ving affidavits are not sufficient.” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (internal quotation marks omitted). Despite Appella nt’s contentions, these affidavits are exactly the type of conclusory affida vits that are insuffi cient to overcome summary judgment. Even if we accept [that] these affidavits are based on personal knowledge, they do not set fort h any facts, admissible or otherwise, that a court could consider as raising a material issue of fact. Instead, each affidavit merely parrots a general ru le 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 re ach. 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 relie s 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 st ate-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 determ ination of whether a religious entity’s employee is a minister as a fact-intensive inquiry. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1617 The cases on which the dissent relies, then, are not pers uasive. 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 fr amework in mind, we now tu rn 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, impor tantly, the limited discovery and summary judgment pleadings focused only on that issue. 5 In its motion for reconsideration, Faith Christian continued to assert the “min isterial exception” defense, but also for the first time referred, perfunctorily, to a defense under the broader church autonomy doctrine. On appeal, Faith Christian now re lies on both defenses a nd, at times, lumps them together.

4 The dissent, as well as Faith Christian and amici, gloss over the fact that the threshold question that tr iggers the application of the exception—whether the plaintiff-employee qualifies as a minister—requires a fact-i ntensive 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 “ministeri al exception” defense is triggered.

5 In arguing on appeal that it has asserted a church autonomy defe nse all along, Faith Christian only points to several sentence s in its converted summary judgment motion taken out of context. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1718 Faith Christian, however, has not adequa tely developed a factual record for asserting the church autonomy defense. In particular , there has been no record development on that defense’s necessary th reshold question: whether the employment dispute between Tucker and Fa ith Christian is rooted in a difference in religious belief or doctrine. Further, the parties only briefly and ve ry generally alluded to the nature of their dispute in their pleadings. In his amended comp laint, for example, Tucker alleged that Faith Christian fired hi m in retaliation for Tucker opposing race discrimination at the school. Faith Christian asserted in its answer, filed after the district court denied Fa ith 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 Fa ith” presentation. Faith Christian makes that argument again in its appe llate 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 a nd, instead, the sc hool’s administration told Tucker that his firing was an economic decision base d on his offending too many tuition-paying parents and thei r children. Whether or not Faith Christian’s conflict with Tucker was rooted in re ligious belief, then, is dire ctly disputed and the facts underlying that question have not yet been developed. Theref ore, because Faith Christian did not adequately assert or de velop a defense under the church autonomy doctrine in the district court, that defens e is not properly befo re us. See Rumsey Land Co. v. Res. Land Holdings, LLC (In re Rumsey Land Co.), 944 F.3d 1259, 1271 Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1819 (10th Cir. 2019) (noti ng this Court will “not address ar guments raised in the District Court in a perfunctory and underdevel oped manner”) (quotati on marks omitted). Faith Christian argues in its reply brie f 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) (hol ding 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 procedur al posture of this case and because Faith Christian waited until its motion for reconsideration to refer, only perfunctorily, to the church autonomy doctrine, Faith ha s not adequately asserted or developed a defense under that doctrine. Neither part y has yet had an adequate opportunity to address the threshold question presented by such a defe nse, whether the parties’ employment dispute is “‘rooted in reli gious 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 excep tion” defense. But this circuit has never addre ssed that question, and we need not do so here because there is no issue of waiv er or forfeiture in th e case before us.

7 Whether a religious employer can take an immediate appeal under the collateral order doctrine from a district court’s deci sion not to dismiss claims based on the church autonomy doctrine pres ents 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 addre ssing that doctrine and the Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1920 Having thus defined the scope of this a ppeal, we now turn to the legal question it presents: whether the collateral order doc trine permits Faith Christian’s immediate interlocutory appeal from the district c ourt’s decision to deny summary judgment on the “ministerial exception” defense. Before answering that question, we first review the general principles of th e collateral order doctrine.
B. The Collateral Or der Doctrine Generally The general principles of the collatera l order doctrine are familiar. As an Article III court created by Congress, we “possess only such jurisdiction as is conferred by statute.” Edward H. Co oper, 15A Federal Practice & Procedure (“Wright & Miller”) § 3901 (2 d 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 distri ct courts.” The district court’s decision at issue here, denying Fa ith Christian summary judgment because there remain genuinely disputed issues of material fact that mu st be resolved by a fact-finder, obviously does not fit the usua l definition of a “f inal decision”—“one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” Cat lin v. United States, 324 U.S. 229, 233 (1945). Faith Christian instead invokes the co llateral order doctrine, “an expansive interpretation of [§ 1291’s] finality re quirement” first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which allows appeals “from

principles underlying that doc trine are not helpful in reso lving the issue presented in this appeal. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2021 orders characterized as fina l . . . 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 appeal able, such orders “m ust [1] conclusively determine the disputed question, [2] resolv e 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, 17 08–10 (2017). Immediate appeals under the collateral or der doctrine are disfavored; they “are the exception, not th e rule” because too many interlocutory appeals can cau se harm. An interlocutory appeal can make it more difficult for tr ial judges to do their basic job— supervising trial proceedings. It can threaten those proceedings with delay, adding costs and diminishing c oherence. It also risks additional, and unnecessary, appellate court work either when it presents appellate courts with less develope d records or when it br ings them appeals that, had the trial simply proceeded, would have turned out to be unnecessary. Johnson, 515 U.S. at 309. Because of thes e 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 collatera l order doctrine “with an eye towards preserving judicial economy and avoiding ‘the harassment and cost of a succession of Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2122 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 collater al 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 cl ass of cases capable of satisfying this ‘str ingent’ test should be understood as ‘small,’ ‘mode st,’ and ‘narrow.’” Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2019) (quoting Un ited States v. Wampler, 62 4 F.3d 1330, 1334 (10th Cir. 2010)). Of particular relevance here, the Supr eme Court has recognized that when, as here, the order being appealed involves th e issue of whether th ere 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 recogni zed the benefit of an immediate appeal from interlocutory orders denying government official s qualified immunity when review of that denial involves a legal question. See Johnson, 515 U.S. at 311–13 (discussing Mitchell v. Fors yth, 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 deni al of qualified immunity ca nnot be justified when the challenged order “resolved a fact-related di spute about the pretri al record, namely, whether or not the evidence in the pretrial re cord 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 Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2223 conclusion, the Supreme Court stated that “cons iderations 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 a bout whether or not a record demonstrates a ‘genuine’ issue of fact for trial, if appe alable, can consume inordinate amounts of appellate time,” which means “greater delay.” Id. And the close connection between this kind of issue an d the factual matter that will likely surface at trial means that the appellate court, in the many instances in which it upho lds a district court’s decision denying summary judgment, may well be faced with ap proximately the same factual issue again, after trial, with just enough change brought ab out 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, theref ore, 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. Th e 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 Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2324 lawsuits) that (the Mitchell Court held) milita tes 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 inst ead we focus on whether an immediate appeal should be available fo r the category of or ders at issue: [W]e “decide appealability for categorie s of orders rather than individual orders.” Johnson v. Jone s, 515 U.S. 304, 315 (1995) . Thus, our task is not to look at the “individual case [and] e ngage in ad hoc balancing to decide issues of appealability. ” Id. Instead, we must undertake a more general consideration of “the co mpeting considerations underlying all questions of finality—‘the inconve nience and costs of piecemeal review on the one [hand] and the danger of denying jus tice by delay on the other.’” Id. (citation omitted). Los Lobos Renewable Power, 88 5 F.3d at 664. We must, th en, evaluate appealability under the collateral order doctrine without rega rd to a “particular injustice” that may be “averted” by an immediate appeal in a gi ven case. Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (quot ation marks omitted)); see also Johnson,

8 There are cases in the qualified-immun ity context where a court will construe disputed facts in the plaintiff’s favor in or der to answer the legal question of whether the plaintiff has asserted a clearly established constitutiona l violation. Here, on the other hand, the question of whether an empl oyee is a “minister” is largely a factual question. The district court in this case held that ba sed on the parties’ competing evidence, a rational jury could find either th at Tucker was or was not a “minister.” That is quintessentially a factual determinati on for the jury. Furthermore, that factual question at issue here is si milar 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 o fficers allegedly beat the plaintiff. See 515 U.S. at 307, 313. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2425 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 cate gory is orders pre liminarily 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 th ese orders do not fall within the small, modest, and narrow class of cases capable of satisfying this st ringent collateral-orde r test. See Kell, 925 F.3d at 452. 9
C. The Collateral Order Doctrine Applied Here It is Faith Christian’s burden to es tablish 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 deci sions excepted from the final-judgment rule by C ohen, 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 th is particular case to have erred in denying Faith Christian summary ju dgment on its affirmative “ministerial exception” defense. The dissent , for example, notes that in this case the district court failed adequately to iden tify exactly what factual di sputes preclude summary judgment. We disagree. The district cour t clearly stated that, based on the parties’ competing evidence, which the court laid out in some deta il, a reasonable jury could find either that Tucker was, or was not, a minister. Nonethel ess, 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” defens e because there remain materi al factual disputes that a jury must decide, should always be immediately appealable. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2526 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 Christ ian 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 litigat e at all its employee’s employment discrimination claims. Because we decline to afford the “m inisterial exception” such expansive treatment, we conc lude Faith Christian has not established our jurisdiction under the collateral order doctrine.
1. Faith Christian has establ ished Cohen’s second requirement Of these three requirements, Cohen’s se cond requirement is clearly satisfied here. There is no doubt that this cate gory of orders—decisions denying a religious employer summary judgment on the “ministe rial exception”—presents an important First Amendment issue, and th at issue is separate from th e merits of an employee’s discrimination claims.
2. Faith Christian has not esta blished Cohen’s third requirement 10
a. Faith Christian has failed to esta blish that this category of orders denying summary judgment will be effectively unreviewable on appeal from final judgment

10 We address Cohen’s third requirement befo re we address Cohen’ s first requirement because our analysis on the first requireme nt rests on some of the same analysis pertaining to Cohen’s third re quirement, and it seems to be the more efficient way to address Faith Christian’s failure to satisfy either of these requirements. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2627 We conclude that this category of or ders, 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 litiga tion in the district court, see Dig. Equip., 511 U.S. at 868. In argui ng to the contrary, Faith Christian asserts that the “ministerial exception” protects re ligious employers not just from liability based on its minister’s employment discri mination claims, but also from the burden of litigating such claims, and it is this pr otection against the burde ns of litigation that will be lost without an immediate appeal. We reject that ar gument because Faith Christian is incorrect that the “ministerial exception” i mmunizes a religious employer from suit on employment discrimination claims. As we have already indicated, the S upreme 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 alle gations the plaintiff makes en title him to relief,’ not whether the court has ‘power to hear [t he] 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,” furt her stated that “[r]equiring a church to accept or retain an unwanted minister, or pu nishing a church for fa iling to do so, . . . interferes with the internal gove rnance of the church, deprivin g the church of control over the selection of those who will personify its beliefs.” Id. at 188. That la nguage indicates that the “ministerial exception” protects religious employers from liability, Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2728 but nothing there suggests a further protecti on 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 th e plaintiff’s status as a mini ster 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 defens e 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 j udgment 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 cl aims asserted against it by an employee under a generally applicable employment discrimination statut e does not punish a religious employer. It is, instead, the cost of living and doing bu siness in a civilized and highly regulated society. See W illiamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 173, 202, 204–05 (1985) (S tevens, 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 Co rp. v. Cty. of Chesterfie ld, 616 F. Supp. 667, 670–71 (E.D. Va. 1985). It bears repeating that re ligious institutions do not “enjoy a general immunity from secular laws.” Our Lady, 140 S. Ct. at 2060.

12 Faith Christian argues that it might hypot hetically 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 pr esent in this case because Faith Christian fire d plaintiff summarily with in days of hearing from disgruntled parents. Further, Faith Christian has not pres ented evidence that this concern will typically be presented in other similar litiga tion scenarios. To th e contrary, self-help would seem to be the norm for almo st all such other situations. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2829 The “ministerial exception” shares the same characte ristics as numerous other defenses to liability that a church might assert in other kinds of litigation. “[V]irtually every right that could be en forced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to st and trial.’” Dig. Equip., 511 U.S. at 873. That includes orders denying summary judgment. See id. But allowing an immediate appeal from the deni al of a dismissal based on all of these rules would eviscerate the congressionally mandated final judgment rule. See id.; Wright & Miller, 15A Federal Pr actice & Procedure § 3911.4. Thus, even though other situations could just as convincingl y be characterized as involving rules protecting ag ainst 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 l ack of subject matter jurisdiction, lack of personal jurisdiction, immunity from serv ice of process, preclusion principles, an agency’s primary jurisdiction, forum n on conveniens, speedy trial rights (in a criminal case), almost all denials of su mmary judgment, and th e district court’s

Faith Christian responds that it might ultimately have to respond in damages to improper discharge, but of course that woul d be a consequence only after trial if the plaintiff is found not to ha ve been a minister and that the discharge was improper under Title VII. If that situ ation prevails, of course, the church is simply being held properly to the same standards as all othe r institutions and employers in America. There is no allegation or evidence that altern atives to an interloc utory collateral-order appeal now would be onerous to Faith Chri stian or, indeed, to most churches in America. Expedited litigation procedures such as the bi furcated procedures used here will often be adequate to address the concerns that Faith Christian raises. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2930 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 Federa l Practice & Procedure §§ 3911.3, 3911.4. This litany of analogous situations unde rscores that courts have jealously protected the narrow scope of the collat eral 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 th at ordinarily these costs must be borne to support the greater benef its that generally flow from denying interlocutory appeal. Wright & Miller, 15A Federal Practice & Procedure § 3911.4 (footnotes omitted). Those benefits include, am ong others, avoiding the dela ys and disruptions to litigation caused by piecemeal appeals a nd preventing unnecessary and repetitive appellate review. See J ohnson, 515 U.S. at 309. b. Faith Christian’s analogy to qualified immunity is inaccurate Faith Christian counters that the “m inisterial exception” is no ordinary affirmative defense; it is one rooted in the First Amendment and, therefore, the denial of summary judgment on that defense warran ts an immediate appeal. In support of that assertion, Faith Christia n tries to draw an analogy be tween the category of orders at issue here—orders denying summary ju dgment to a religious employer on the “ministerial exception” because there remain factual disput es that a fact-finder must resolve—and a non-church based category of orders for which courts do allow interlocutory appeals—when the district c ourt denies a government official qualified Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3031 immunity based on abstract ques tions of law. But that an alogy is not helpful to Faith Christian because these two affirmative defenses—the “m inisterial exception” and qualified immunity—are simply not at all similar. Unlike the “ministerial exception,” the Supreme Court has explicitly recognized that qualified immunity pr otects government officials not only from liability, but also from the bur dens of litigation itself. See Mitchell, 472 U.S. at 525– 27. Because qualified immunity is predicat ed on “an immunity fro m 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 immuni zes a private religious employer from the burdens of litigating employment discrimina tion 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 orde r denying a religious employer summary judgment on Title VII’s statut ory exemptions and its general First Amendment defense. Cf. Herx v. Dio cese of Ft. Wayne-S. Bend, Inc., 772 F.3d 1085, 1088, 1090 (7th Cir. 2014). Herx re asoned that, “although the statutory and constitutional rights asserted in defense of this suit are undoubtedly important, the Diocese [the religious employer] has not esta blished that the Titl e VII exemptions or

13 To the contrary, see Smith & Tuttle, 86 Fo rdham L. Rev. at 1881 (stating that “the ministerial exception, at bo ttom, is still a defense to liability rather than a comprehensive immunity from suit” and any e rror that the district court makes in not applying that exception can be reviewed eff ectively on appeal from final judgment). Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3132 the First Amendment more generally provide s an immunity from tr ial, as opposed to an ordinary defense to liab ility.” Id. at 1090. Althou gh 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 agai nst it by a minister and th at orders denying summary judgment on the “ministerial exception” are not immediatel y appealable. Faith Christian’s policy ar guments for extending qualif ied immunity to private religious employers are also not persuasive. To be sure , this Court has previously noted some similarities between a religi ous employer’s First Amendment defenses and “a government official’s defense of qua lified 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 qui ck to note further that, “[o]f course, the doctrin es 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 ag ainst government official s in an effort to protect the public’s interest in a functioning government. See id. To that end, qualified immunity seeks to avoid “the gene ral costs of subjecti ng officials to the risks of trial—distraction of officials from their governme ntal duties, inhibition of discretionary action, and deterrence of ab le people from public se rvice.” 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 categor ies of orders denyi ng a government Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3233 Courts, however, “hesita[te] to extend immunity from suit to a private party without a statutory basis” to do so becau se “[i]mmunity from suit is a benefit typically only reserved for governmental o fficials.” 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 underl ying qualified immunity—“to safeguard government, and thereby to protect the publ ic at large”—“are not transferable to private parties.” Wyatt, 504 U.S. at 168. The fact that the “min isterial exception” applies only to private religious organiza tions, 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, 47 2 U.S. at 525 (citing Nixon v. Fitzgerald, 457 U.S. 731 ( 1982)). In recognizing bot h qualified and absolute immunity, the Supreme Court has “consisten tly held that government officials are entitled to some form of imm unity from suits for damages” in order to protect “public officers . . . from undue inte rference with their duties a nd from potentially disabling threats of liability.” Harl ow, 457 U.S. at 806. Abso lute immunity applies to “officials whose special f unctions or constitutional status requires complete protection from suit,” like legi slators acting in their le gislative capaci ty, judges acting in their judicial capacity, and pr osecutors and executive officers engaged in adjudicative functions, as well as the Pres ident of the United States. Id. “For executive officials in general, however, . . . qualified imm unity represents the norm,” in an effort “to balance competing valu es: not only the importance of a damages remedy to protect the rights of citizens, but al so ‘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 i mmediate appeals under the collateral order doctrine from categories of orders de nying 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.). Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3334 The dissent incorrectly suggests that we are concerned about applying the collateral order doctrine generally in civil ca ses between private par ties. Not so. As the cases cited by the dissent illustrate, immediately appeal able collateral orders can arise in the course of private civil litigation. 15 Our specific con cern is instead with the dissent’s unprecedented extension of immu nity to private religious organizations in order to protect them from the burdens of even litigating claims brought against them by employees alleging illegal employme nt discrimination. Since the dissent fails to establish the necessa ry predicate that the “min isterial 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 Ame ndment does not make sense in the bigger picture of religious organizations a nd the legal system. Although religious institutions enjoy some protections under the “ministerial ex ception,” religious institutions do not “enjoy a general immun ity 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 reli gious schools cannot claim to be wholly free from some

15 Los Lobos Renewable Power, LLC v. Am eriCulture, Inc., 885 F.3d 659 (10th Cir. 2018), is one such example. But that case otherwise ha s 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. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3435 state regulation.”). Religious entities can be sued on myriad theories. See Skrzypczak, 611 F.3d at 1244–46 (discussing la wsuits that can and cannot be brought against religious organizati ons); Tomic v. Catholic Di ocese, 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 excep tion” is not jurisdictional). As just one example, religious employe rs can be sued by their non-ministerial employees for violating anti-di scrimination employment statut es. See, e.g., Rayburn, 772 F.2d at 1169. That highlights the importa nce of the merits question at issue in this appeal. If the employee is a mini ster, suit over the employment discrimination claims ends. But if the employee is not a minister, then thos e claims must be resolved according to our normal jurisprudential process. In summary, Faith Christian has failed to cite any ca se specifically treating the “ministerial exception” as pr otecting a religious employer from litigation itself. Such a position is contrary to our legal system’s treatment of religi ous 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 immedi ate appeal is premised on treating the “ministerial exception” like qualified immun ity. The dissent adopts that argument. Both advance two justifications for extendi ng qualified immunity from suit to private Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3536 religious employers—Hosanna-Tabor treate d the “ministerial exception” as an immunity from suit and the “ministerial exce ption” is a structural limitation on the court’s authority to act. Ne ither justification is a corr ect 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 S upreme Court, in first recognizing the “ministerial exception” in Hosanna-Tabor, treated the “ministe rial exception” as immunizing religious employers, not just from liability, but from suit itself. Hosanna-Tabor, however, never a ddressed the “ministerial exception” in terms of an immunity of any kind. Instead, it trea ted the “ministerial exception” as an affirmative defense and never once refe rred to it as an immunity from suit. 16 Hosanna-Tabor’s reasoning s uggests only that the “minis terial exception” protects religious employers from liability under Title VII for employ ment discrimination claims asserted against the religious employer by its minist ers. Tellingly, Hosanna-Tabor held that the “ministerial ex ception” is “not a jurisdictional bar,” but instead “operates as an affi rmative defense to an otherwise cognizable claim . . . because the issue presented by the exception is ‘whether th e 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 ne ver mentioned or suggested by the Supreme Court in its later, closely related case of Our Lady. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3637 Hosanna-Tabor stated that it would in terfere with a church’s “internal governance” to require the “c hurch to accept or retain an unwanted minister, or punish[] a church for failing to do so.” Id . at 188. That reas oning, 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 al so held that to gr ant 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 dismis sal.” Id. at 194. All of that language from Hosanna-Tabor suggests that the “min isterial exception” is a defense that protects a religious employer from ultimate li ability under Title VII from a plaintiff who is found to be a minister but not from the normal judicial pr ocess to make that predicate determination of whether the pl aintiff-employee is in fact a minister. 17 In arguing to the contrary, Faith Ch ristian 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 Ch ristian, the use of th e word “bar,” without more, “establishes” that th e “ministerial exception” i mmunizes a private religious

17 As noted previously, nothing in this litigation requires Fa ith Christian to employ an unwanted minister. It has the power, a nd has already exercised that power, to discharge Tucker. The only issu e 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. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3738 employer from suit under Title VII. However, it would be odd indeed and contrary to the clear language and reasoning in Hosa nna-Tabor if Hosanna-Tabor reached the unprecedented result advanced by Faith Christian, exte nding immunity from suit to private religious employers without expre ssly addressing and ex plaining its decision to do so. It would be odder still for th e 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 th at the “ministerial excepti on” is “not a jurisdictional bar,” but instead “operate[s] as an affirm ative defense to an otherwise cognizable claim . . . because the issue presented by the exception is ‘w hether the allegations the plaintiff makes entitle him to relief,’ not wh ether the court has ‘power to hear [the] case.’” 565 U.S. at 195 n.4 (quoting Morr ison, 561 U.S. at 254) (emphasis added). 18 The Supreme Court uses the term “bar” in many different c ontexts. As just one example which unmistakably contradicts the dissent’s reliance on the word “bar” in this case, the Supreme Court in Dig ital Equipment distinguished orders holding “that an action is barred on claim preclus ion principles” from orders involving an “entitlement to ‘avoid suit altogether,’” li ke qualified immunity. 511 U.S. at 873–75 (emphasis added) (quoting La uro Lines s.r.l. v. Chasse r, 490 U.S. 495, 501 (1989), and citing Mitchell, 472 U.S. 511). 19

18 The Supreme Court has more generally wa rned 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 minist er’s employment disc rimination claims. A fair reading of that case as a whole doe s not suggest any conscious attempt by the Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3839 The dissent’s contention, that Hosanna-T abor’s use of the word “bar” all by itself implicitly extended qualif ied immunity from suit to private religious employers is unpersuasive. 20
ii. Faith Christian has not esta blished that the “ministerial exception” is a “structural” limi tation on a court’s authority sufficient to immunize private re ligious employers from suit under Title VII Reiterating, Hosanna-Tabor held that the “ministerial exception” is “not a jurisdictional bar” and does not implicate a c ourt’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 S upreme 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 we ight the dissent would give it. Neither the dissent nor the parties have cited a ny case giving Hosanna-T abor’s use of the term “bar” the expansive and novel read ing 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 a ddress immunity. Instead, it relied on Hosanna-Tabor to hold that a religious em ployer cannot waive the application of the “ministerial exception” defense once it has been dete rmined 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 immun ity from suit that Faith Ch ristian seeks here.

20 The dissent also relies on th is court’s use of the term “adjudication” in Bryce, a pre-Hosanna Tabor Tenth Circ uit 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. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3940 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 thr ee cases from other circui ts in support of its structural-limitations argumen t—Conlon, 777 F.3d 829 (6th Cir.); Lee, 903 F.3d 113 (3d Cir.); and Tomic, 442 F.3d 1036 (7th Ci r.). 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 cl aims. Instead, each of those cases addressed only the question of whether a religious employe r could waive (or forfeit) a “ministerial exception” defense. Furthe r, each of the three cases addressed the waiver question only after it was clear that the plainti ff-employee was a minister. That, too, differs from this case. Of greater concern, the specific language from those cases on which Faith Christian reli es contradicts Hosa nna-Tabor’s express language indicating that the “ministerial exception” does not implicate a court’s power to hear an employmen t discrimination claim. In Conlon, for example, the Sixth Circu it 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 wo uld otherwise apply to the[] facts” plaintiff alle ged. 777 F.3d at 833. The Si xth Circuit then determined that the plaintiff-employee in that case was a minister and, thus, that the employer Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4041 could assert the “ministerial exception.” Id. at 832, 834 –35. Only after that did Conlon cite the First Amendm ent 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, Conl on 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 wa s no dispute that the plaintiff-employee, the pastor of a Baptist chur ch, qualified as a minister. Lee sued the church, alleging the church had breached its employment contr act with Lee. 903 F.3d at 116–18. Lee moved for summary judgment and, in its de fense, 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 excep tion” and eventually granted the non-moving Church summary judgme nt on that basis. Id. at 118. The Third Circuit ruled that the employer had no t “waived” the affirm ative “ministerial exception” defense because it “is rooted in constitutional limits on judicial authority.” Id. at 118 n.4. Alternativel y, the court noted that Lee did not argue waiver to the district court. Id. In Tomic, a pre-Hosanna-Tabor cas e, the Seventh Circuit treated the “ministerial exception” as a jurisdictional limitation, see 442 F.3d at 1039, a proposition which the Supreme Court later re jected in Hosanna-Tabor, see 565 U.S. at 195 n.4. In a general di scussion, Tomic noted “that fe deral courts cannot always avoid taking a stand on a reli gious question.” 442 F.3d at 103 9. Where, for example, Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4142 a church designated all of its employees, in cluding the janitor, as a minister, a “court would have to determine whether under the act ual law of the church in question . . . janitors really were ministers.” Id. But under the specif ic 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 reachi ng that conclusion, the Seventh Circuit considered “whether it makes a difference th at the diocese repres ents itself as an ‘equal opportunity’ employer.” Id. at 1041. The court held it did not make a difference because “the minist erial 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 bi nds this Court. Furthermore, and of most concern, the language from each of these cases on which Faith Christian relies—language referring to the “ministeri al exception” as a “structural” or a constitutional “limitation” on a court’s “a uthority”—contradicts Hosanna-Tabor’s language explicitly stating that the “ministerial exception” is not jurisdictional and does not implicate the question of “whether th e 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, ne ither Conlon nor Lee acknowledged and addressed the Supreme C ourt’s further language indicating that the “ministerial exception” does not implicat e a court’s “‘power to hear [the] case,’” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4243 id. (quoting Morrison, 561 F.3d at 254). (N either Faith Christ ian nor the dissent address this language from Ho sanna-Tabor, either.) Beyond that significant pr oblem, none of these th ree cases address the question presented here, which is whether the category of orders denying a religious employer summary judgment on its “minis terial exception” defense should be immediately appealable. Nor do any of these three cases address whether the “ministerial exception” immunizes a religio us employer from ever having to litigate its minister’s employment discrimination cl aims. Instead, the three cases cited by Faith Christian address only whether an employer can “waive” (or forfeit) its affirmative “ministerial exception” defens e, once it has been de termined that the plaintiff-employee is a minister. That wa iver 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 Establis hment Clause’s admonition that courts avoid excessive entanglement with religion to argue that the “ministerial exception” is a “structural” limitati on 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). Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4344 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 mini ster does not represent exces sive entanglement. See generally id. (noting “[i]nteraction between c hurch and state is inev itable”). Instead, the fact finder must determine whether the plaintiff-employee is a minister before deciding whether the “ministe rial exception” applies in a given case. If the plaintiff-employee is not a minister, ther e is no entanglement with religion and the “ministerial exception” does not apply. Re ligious institutions do not “enjoy a general immunity from secular laws.” Our Lady, 140 S. Ct. at 2060. Instead, applying neutral and generally applicab le laws to religious instit utions ordinarily does not violate the First Amendment. See Fulton v. City of Philadelphi a, 141 S. Ct. 1868, 1876–77 (2021) (citing cases). Faith Christian, thus, is subject to Title VII discrimination claims brou ght against it by a non-mini sterial employee. See Rayburn, 772 F.3d at 1169 (4th Cir.). Requiring Fa ith Christian to litigate to resolution here the genuinely disputed pr edicate factual issue of whether or not Tucker is a minister does not amount to an excessive entanglem ent of courts with religion. It is inst ead a necessary factual determinati on that will resolve whether the “ministerial exception” even applies in the first place. And, where there is a genuinely disputed factual is sue as to whether an employ ee qualifies as a “minister,” a jury must resolve th at predicate material factual dis pute. That cannot be avoided in light of the fact-intensive nature of the question, as emphasized by the Supreme Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4445 Court in both Our Lady, 140 S. Ct. at 2066–67, and Hosanna-Ta bor, 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 c ourt’s excessive entanglement with religion. But determining the narro w binary factual question of whether a particular plaintiff is or is not a minister of the de fendant church is not excessive entanglement. If the determin ation is that the plaintiff is not a minister, requiring the church to stand trial on an employment di scrimination claim, or indeed other secular claims, is not excessive entangl ement or even entanglement at all. If Faith Christian were entitled to immunity here it woul d be “immunity by ipse dixit”—immunity because Faith Christian simp ly declared Tucker (and i ndeed nearly all of its employees) to be ministers. If this case goes to trial, it does not reas onably mean that even a jury will ever be required to resolve any reli gious dispute. Instead, the district court could instruct the jury to decide first whethe r Tucker is a minister (without regard to whether he is a faithful or feckless mini ster); if Tucker is determined to be a minister, the jury’s inquiry ends. Only if the jury finds that Fa ith 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.” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4546 c. Faith Christian has no t cited any case where an interlocutory ruling denying dismissal of a claim against a party based on th e Establishment Clause was immediately appealable Faith Christian has not cited, nor ha ve we found, any case permitting an immediate collateral-order app eal challenging a court’s deci sion to decline to dismiss secular claims based on the Establishmen t Clause’s prohibition against courts’ excessive entanglement with religion. Faith Christian mentions Whole Wome n’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018), but the circumstances at issue there were very di fferent from this case. In Smith, the district court i ssued a discovery order requi ring the Texas Conference of Catholic Bishops (“Conference”), which was not a party to the li tigation, to produce its “internal communications.” Id. at 364. The Fifth Circuit permitted an immediate appeal from that decision unde r the collateral order doctrine because the contested discovery order conclusively determined th at the non-party Conference had to turn over its internal communications and, becaus e the discovery order was directed to a non-party, it was effectively unreviewable following a final judgm ent entered in the parties’ litigation. Id. at 367–69. That is a very diffe rent situation than the one presented here, where a part y-defendant (Faith Chris tian) seeks an immediate collateral-order appeal from the denial of summary judgment on its affirmative defense because there remain ma terial factual disputes that a jury must decide. Here, Faith Christian can challenge that finding af ter final judgment if an adverse judgment is ultimately rende red against it. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4647 d. Conclusion as to Fait h Christian’s structural argument Bringing this discussion full circle, Ho sanna-Tabor expressly held that the “ministerial exception” is not jurisdictiona l. See 565 U.S.at 195 n.4. But even if, directly contrary to Hosanna-Tabor’s cl ear language, we treate d 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 imme diately 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 Establishm ent Clause to trea t the “ministerial exception” as a limitation on a court’s authority to adjudi cate an employee’s discrimination claim, Faith Christian would still not be entitled to an immediat e appeal. Any limitation the “ministerial exception” imposes is only co nditional 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 Establishmen t Clause’s admonition that courts avoid excessive entanglement with religion would have no appli cation if the employee was found not to be a minister. And, as al ready explained, and as emphasized by the Supreme Court in Hosanna-Tabor and Ou r Lady, because the determination of whether or not an employee is a minister in volves a fact-intensive inquiry, the denial of summary judgment on that issue because there are material fa ctual disputes does not justify an immediate appeal under the collate ral order doctrine. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4748 Many of the arguments made by Faith Ch ristian, the dissent and a number of amici to the contrary simply presuppose that the plaintif f-employee will always be a minister. Those arguments are not realistic. They i gnore the possibility, presented here, that a district court will conclude that summary judgment cannot be entered for the religious employer because there are genui nely disputed material facts that a jury must resolve. If a jury’s resolution of those facts indica tes that the employee is not a minister, then the Establishment Clause is not implicated.
c. Conclusion as to Co hen’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 erro r the district court makes in failing to apply that affirmative defense can be effe ctively 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 co nclusively determ ine the disputed question Because we conclude that Faith Christia n has failed to establish that this category of orders satisfies the third Cohen prong, we need not address whether Faith Christian satisfied Cohen’s fi rst prong—that the category of orders being appealed conclusively determine the disputed quest ion, whether an employee qualifies as a minister. See Coopers & Lybrand, 437 U. S. at 468 (applying Cohe n, 337 U.S. 541). Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4849 But Faith Christian cannot satisf y Cohen’s first require ment either. It is clear that the district court denied summary judgment be cause a jury must re solve the genuinely disputed fact question of whether Tucker was a “minister”; that ruling unquestionably did not “conclusively determin e the disputed question” of Tucker’s ministerial status, Coopers & Lybrand, 437 U.S. at 468 (emphasi s added). Instead, th e district court’s decision clearly contemplates further factua l proceedings to reso lve that disputed issue of fact of Tucker’s mi nisterial status vel non. As with the third Cohen requirement, ag ain the dissent can only conclude that the first Cohen requirement is satisfied if the “ministe rial exception” immunizes religious employers even from suit under T itle VII. But, as explained in our discussion of the third Cohen requirement, th is is an incorrect ch aracterization of the “ministerial exception. 21

21 Because Faith Christian has failed to meet either Cohen’s first or third requirements for immediate appeal under th e collateral order doctrine, we have no interlocutory jurisdiction to address the mer its of the district court’s decision to deny Faith Christian summary judgment on its “m inisterial exception” defense. The dissent addresses the merits of that question and conclude s 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 deci ded in the first instan ce 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 fact ual disputes that preclude summary judgment. But that is no t 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 m eaning of the ‘ministe rial exception’ is genuinely disputed on the evidence presented” and that a reasonable jury considering that competing evidence could find either that Tucker wa s, or was not, a minister (id. at 284). Second, the dissent assert s that it views that compet ing evidence in the light most favorable to Tucker, but then relies on Faith Christian’s evidence. As the Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4950 III. CONCLUSION The Supreme Court could of course exte nd the scope of the collateral order doctrine to allow interlocutory appeals of ca ses 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 num ber of orders qualif y 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 employe r’s “ministerial ex ception” defense because of a genuine dispute of material issues of fact—ca nnot 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 ev idence was primarily self-serving documents describing Tucker’s position, like an extension agreement and teacher handbook, while Tucker’s ev idence addressed th e actual “facts and circumstances of his employment .” (Aplt. App. 284.) The district court noted that, if a jury believed Tucker’s ev idence, the jury “could rationa lly” find that he was not a “minister.” Id. Furthermore, Faith Christ ian’s documents on which the dissent relies appear to classify all teacher s and indeed all staff members as “ministers.” Such an indiscriminate blanket statemen t giving ministerial status to essentially its entire staff is contrary to the case-sp ecific inquiry as to whethe r 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 t itles 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 addr ess those merits in detail. But there are concerns about the disse nt’s discussion of those merits. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 50Gregory Tucker v. Fa ith Bible Chapel, No. 20-1230 BACHARACH , J., dissenting This case involves an employm ent 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 disput es, the ministerial exception protects the free exercise of religi on and prevents judicial entanglement in religious

matters. Hosanna-Tabor , 565 U.S. at 188. The defendant (Faith Bible Chapel) sough t summary judgment 1 based on the ministerial exception, arguin g that the plaintiff (Mr. Gregory Tucker) had been employed as a mini ster. But the district court denied summary judgment and reconsideration. 2 Faith Bible appeals, arguing that

 appellate jurisdiction exists under the collateral-o rder doctrine and

1 Faith Bible moved to dismiss, and the distri ct court converted the motion to one for summary judgment.

2 The district court granted Fa ith Bible’s moti on for summary judgment on a claim under Title VI, but that cl aim does not bear on this appeal. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 512  the ministerial exception bars relief. 3 The majority concludes that we lack jurisdiction, but I respectfully disagree. In my view, we have appell ate jurisdiction und er the collateralorder doctrine. With juri sdiction, we should reve rse 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 religi ous school, Faith Christia n Academy. But parents of the students bristled when Mr. Tuck er led a program on race and faith, and school officials later st ripped Mr. Tu cker of his positi on as a Director of Student Life/Chaplai n. About a month later, school officials also terminated his employm ent as a teacher. The termination led to a suit against the sc hool’s operator, Faith Bible, under Title VII and Colorado law for re taliating against Mr. Tucker’s anti-racist stat ements. In respon se, Faith Bible attributes the termination to a disagr eement about Mr. Tucke r’s interpretation of scriptural passages.

3 Faith Bible also asserts a ch urch-autonomy defense, which the majority treats as underdeveloped. I express no opinion on the development of that defense. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 523 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. Tu cker’s jurisdictional challenges. Faith Bible argues that Mr. Tucker conceded multiple jurisdictional arguments by failing to respond to them when he brie fed jurisdiction. But parties cannot waive challenges to appe llate jurisdiction. Tuck v. United
Servs. Auto. Ass’n , 859 F.2d 842, 844 (10th Ci r. 1988). So we should consider all of Mr. Tucker’s jurisdictional challenges.
III. The ministerial exception involves a defense aga inst suit, not just against liability. Consideration of these jurisdictiona l challenges turn s on the nature of the ministerial exception. Mr. Tuck er considers this exception like any ordinary affirmative defens e, serving only the personal intere sts of private individuals to avoi d personal liability for priv ate wrongs. In my view, however, the ministerial ex ception also serves as a structural safeguard against judicial meddling in religious disputes. As a structural safeguard, the ministerial exception protects religious bodie s from the suit itself— unlike most affirmative defenses that protect only against liability.
A. Affirmative defenses that immunize a part y from suit must serve some value of a high order. The nature of the ministerial ex ception matters because appellate jurisdiction ordinarily aris es only after the district court has entered a final order. 28 U.S.C. § 1291. But some orders warrant earlier appellate review Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 534 because they concern not just a defense against lia bility 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 en titling a party to immunity from suit.” Digit. Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 874 (1994). We proceed cautiously when char acterizing a defens e 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 whethe r 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). Th e Supreme Court has iden tified values of a “high order” in defenses involving qualified immunity, absolute immunity, Eleventh Amendmen t immunity, and double jeopardy. Will , 546 U.S. at 352. These defenses serve values of a high orde r like the separation of powers, the effici ency of government, the discretion of governmental officials, the State’s di gnitary interests, and the mitigation of power imbalances between governmen tal and private litigants. Id. at 352–53. Consider qualified immunity, wh ich shields government officials from suits for damages unle ss the official violates a clearly established federal constitutional or statutory righ t. The Supreme Court treats qualified immunity as “an immunity from suit rather than a mere defense to liability” because the costs of litiga tion “can be p eculiarly disruptive of effective Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 545 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 peop le 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 liab ility for official acts by cer tain governmental actors. Nixon v. Fitzgerald , 457 U.S. 731, 744–47 , 755 (1982). This affirmative defense stems from the structural sepa ration of powers am ong the branches of government. Id. at 748. Given the importan ce 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 Au th. 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 inte rests, the Supreme Court treats Eleventh Amendment immuni ty as immediately appealable, Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 556 characterizing it as an affirmative de fense 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 fo r the same offense. Abney v. United States , 431 U.S. 651, 661 (1977). Immediate a ppellate review is needed because the government’s prosecutorial power can subject individuals “to embarrassment, expe nse and ordeal . . . to live in a continuing stat e of anxiety.” Will , 546 U.S. at 352 (quoting Abney , 431 U.S. at 661–62).
B. The ministerial excepti on 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 adva nces values of a high order, protecting religious bodies from burd ensome 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 minister ial exception stems from its origins in the Free Exercise and Establishm ent Clauses of the First Amendment, which “protect the right of churches and other religious institutions to decide matters ‘of faith and doctri ne’ without government intrusion.” Our Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 567 Lady of Guadalupe Sc h. v. Morrissey-Berru , 140 S. Ct. 2049, 2060 (2020) (quoting Hosanna-Tabor , 565 U.S. at 186). The First Amendment’s protection extends to reli gious bodies’ employment matters. Wit hout limitations on judi cial meddling in employment disputes, re ligious bodies might sk ew their employment decisions. For example, a religious body might hesitate to fire a minister even in the face of doct rinal disagreements. “The re is the danger that churches, wary of EEOC or judicial re view of their decisions, might make them with an eye to avoiding litigation or bureaucratic en tanglement rather than upon the basis of their own personal and do ctrinal 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 (4 th Cir. 1985). The potential cloud of litigatio n might also affect a re ligious 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 excepti on not only protects reli gious bodies from the need to skew their employment deci sions, but also advances three structural values:
1. Protection of a religious body’s intern al governance
2. Limitation on governmental power over religious matters
3. Prevention of judicial encroachment in matters of religion Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 578 First, in keeping with the Free Exercise Clause, the ministerial exception protects the inte rnal governance of relig ious bodies by allowing them “to shape [the ir] own faith[s] and mission[s] through [the religious bodies’] appointments.” Id. The right to independ ently 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 (10t h Cir. 2010) (“The ministerial exception preserves a church ’s ‘essential’ righ t to choose the people who will ‘preach its values, teach its me ssage, and interpret its doctrines, both to its own membership and to th e world at larg e,’ free from the interference of civil em ployment 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 gov ernmental power over religious matters. See Conlon v. InterVarsity Christian Fellowship/USA , 777 F.3d 829, 836 (6th Cir. 2015) (“The mi nisterial exception is a structural limitation imposed on the gov ernment 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 minister ial exception “is rooted in constitutional limits on judicial authority”); see also John Hart Ely, Democracy & Distrust: Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 589 A Theory of Judicial Review 94 (1980) (arguing that the Religi on Clauses perform a “structural or separation of powers function”). The Constitution’s structural limitation prohibits gover nmental invo lvement “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 th at the ministerial exception is “best underst ood as an effectuation of the Establishment Clause’s limits on governm ental 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 “s tructural restraint on the gover nment’s power to act on certa in 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 minister ial exception preserves the separation of religious and legal r ealms, preventing “secular courts [from] taking on Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 5910 the additional role of religious courts, as if the United States were a theocracy.” Id. Given these structural values, thr ee 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 Ci r. 2018) (concluding that “the Church is not deemed to have waived [the ministeria l exception] because the exception is rooted in constitutional limi ts on judicial authority”); Conlon v. InterVarsity Christian Fellowship/USA , 777 F.3d 829, 836 (6th Cir. 2015) (concluding that “the Co nstitution does not permit pr ivate parties to waive the First Amendment’s minister ial 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 Luth eran Church & Sch. v.
EEOC , 565 U.S. 171 (2012). No circuit has reached a contrary conclusion. The majority argues that the th ree opinions are distinguishable because they

 didn’t address whether the ministerial exception provides immunity from “litigation” (as opposed to i mmunity from liability),

 addressed only whether a reli gious body coul d “waive (or forfeit) a ‘ministerial exception defense,’” and Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6011  addressed waiver only after expl aining that the claimant was a minister. These purported differ ences mean little. The majority is incorr ect as to the first pur ported difference: The Sixth Circuit did treat the ministerial except ion 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 ministeria l exception as a bar to suit rather than just as a defense ag ainst liability. Conlon v. Intervarsity Christian Fellowship/USA , 777 F.3d 829 , 836 (6th Cir. 2015) (citing Hosanna-Tabor Evangelical Lutheran Chur ch & Sch. v. E.E.O.C. , 565 U.S. 171, 181–89 (2012)); see pp. 15–16, below. The second purported di fference fails to consider the courts’ reasons for treating the ministerial exception as non waivable. In Lee , for example, the parties didn’t raise th e 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 consider ed the ministerial exce ption nonwaivable because it “is rooted in constitutional limits on judicial authority.” Id. In Conlon , the Sixth Circui t interpreted Hosanna-Tabor to prevent courts from ever considering the ministeria l exception as waiv ed because it “is a structural limitation imposed on the government by the Religi on Clauses.” Conlon , 777 F.3d at 836 (citing Hosanna-Tabor Evangelical Lutheran Church & Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6112 Sch. v. E.E.O.C. , 565 U.S. 171, 181–89 (2012)). As the Thir d and Sixth Circuits explained, they disallowed waiver because of the ministerial exception’s structur al character. Finally, the majority st ates that the three cour ts discussed the merits (the claimant’s status as a minister) before discussing the inability to waive the ministerial exception. Th is statement is incorrect because Lee discussed waiver simultaneously with the merits. Lee , 903 F.3d at 118–23. Regardless of the sequence of these is sues, however, why would the courts’ organization of their opi nions render the conten t distinguishable? The parties didn’t raise the ministerial ex ception in any of these cases, but each circuit held that the court had to ad dress the issue anyway because of its unique structural qual ity, setting it apart from most other affirmative defenses.
C. Because the ministerial except ion advances interests of a high order, the issue should be decided early in the litigation. The ministerial exception thus prot ects interests of a high order by maintaining the structural division between religiou s and governmental realms. Given these important interest s, early resolution is necessary to avoid costly, burdensome litigation between religious bodies and their Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6213 ministers. 4 See Rayburn v. General Conference of Seventh-Day Adventists , 772 F.2d 1164, 1171 (4th Cir. 1985) (stating th at Title VII actions can be lengthy and subject churches to “subpo ena, discovery, cr oss-examination, the full panoply of legal pr ocess designed to probe the mind of the church in the selection of its ministers”); see also EEOC v. Ca th. 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 excl usive province of the Department of Canon Law as a pontifical institution”). And earl y 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 ov er the ministerial except ion could “protract legal process” and “the very process of inquiry could ‘impinge on rights guaranteed by the Reli gion Clauses’” (quoting Rayburn , 772 F.2d at 1171

4 The majority faults Faith Bibl e for failing to cite “any case permitting an immediate collateral-order appeal challenging a court’s decision to declin e 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 ha sn’t cited any case to the contrary. That’s no t surprising because this issue is one of first impression; there have been no circuit court cases deciding the issue either way. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6314 (4th Cir. 1985) and NLRB v. Cath. Bishop of Chi. , 440 U.S. 490, 502 (1979))).
D. The Supreme Court has char acterized 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 recogni zed the function of the ministerial exception as a protection against litiga tion 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 mini sterial 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 mi nisterial 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 argu es we cannot rely on Bryce because the holding ultimately turned on the ch urch autonomy doctrine. See Maj. Op. at 39 n.20. But ther e we considered the ministerial exception as a part of the church autonomy doctrine. Id. at 656. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6415 (often by legal obstacle).’ ”). The Supreme Court pair ed 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 minister ial exception as a defense that would prevent the proceeding itself. I thi nk that we should take th e 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 Ci r. 2007). But the Sixth Circuit later concluded that the ministerial exception wa s no longer waivable because HosannaTabor had treated the ministerial except ion as a bar to the suit itself. Conlon v. Intervarsity Christian Fellowship/USA , 777 F.3d 829, 836 (6th Cir. 2015). For this conclu sion, the court drew upon two of HosannaTabor ’s key passages:
1. “[T]he Establishment Clause . . . prohibits government involvement in eccle siastical matters.”
2. “It is ‘ impermissible for the gover nment to contradict a church’s determination of who can act as its ministers.’” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6516 Id. (alteration in orig inal) (quoting Hosanna-Tabor , 132 S. Ct. at 704, 706). Despite the Supreme Court’s char acterization of the ministerial exception as a bar to suit , Mr. Tucker argues that we should no t construe the ministerial exception as “a jurisdictional bar.” Appellee’s Jurisdictional Memorandum at 11. He is correct: Th e ministerial exception doesn’t prevent the district court from hearing the case. So the ministerial exception doesn’t pr event jurisdiction over the subjec t-matter or the parties. In this respect, the ministerial exception resembles other nonjurisdictional defenses like qualif ied 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 qu alified-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 undermine d 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 involv es waivability: Unlike those immunities, the ministerial exception is considered nonwaivable because of its structural Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6617 character. See Hicks , 533 U.S. at 373 ; pp. 10–12, above. 6 Mr. Tucker nonetheless suggests thr ee other differences be tween 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 civ il liability. He’s right about that. See Our Lady of Guadalupe Sc h. v. Morrissey-Berru , 140 S. Ct. 2049, 2060 (2020) (stating that the mi nisterial exception “does not mean that religious institutions enjoy a general immunity from secular la ws”). Religious bodies remain subject to many civil and criminal laws. See, e.g. , Emp. Div., Dep’t of Human Re s. 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 excepti on involves only an immunity from trial in employment disputes between a religiou s 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. Roma n Cath. Diocese , 611 F.3d 1238, 1246 (10th Cir. 2010) (concluding that the ministerial

6 The Eleventh Amendm ent 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, Eleven th Amendment immunity can still trigger the collateral-order doctrine. See pp. 5–6, above. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6718 exception bars ministers’ pursuit of employment claims). The ministerial exception doesn’t sh ield religious bodies fr om all secular laws. Because of this limitation, the ma jority points out that religious employers can be sued “by non-ministe rial employees” for discriminating in employment. Maj. Op . at 35. But this dist inction proves little. We protect a religious body’s authority over the employmen t of ministers because of the Religion Clauses. See Hosanna-Tabor Ev angelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 196 (2012) (concluding that the First Amendment elevates the interest of religiou s bodies in choosing their ministers). So ministerial employ ees can’t sue ev en though other employees can. Th e distinction serves the st ructural purpose of the Religion Clauses, preventi ng judicial intrusion into a religious body’s employment of ministers. See Part III(B), above. On the other hand, employment of secular empl oyees doesn’t implicate the structural purpose of the Religion Clauses. Second, Mr. Tucker argu es that the benefits from protections like qualified immunity should be reserved for government officials, not private parties. 7 As the majority obse rves, however, the colla teral-order doctrine

7 Mr. Tucker suggests that the mi nisterial exception should provide no immunity to religious bod ies. But the Supreme Court has rejected that suggestion. Hosanna-Tabor Evangelic al 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). Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6819 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 und er the collateral-order doctrine when private parties clashed over a state law. Los Lobos Renewa l Power LLC v. Americulture, Inc. , 885 F.3d 659, 661 (10th Cir. 2018). Other circuits have also applied the collateral -order doctrine to app eals 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 co llateral-order doctrine to private parties); see also United States v. Bescond , 7 F.4th 127, 131 (2d Ci r. 2021) (applying the collateral-order doc trine 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 ha s declined to apply the co llateral-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 Circ uit didn’t address the applicability of the Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6920 collateral-order doctrine to the ministerial except ion. 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 Am endment 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 li mitation, preser ving religious independence and the separation of church and state. These functions distinguis h the ministerial exception from other run-ofthe-mill affirmative defenses to lia bility. Given these differences, the ministerial exception protec ts not only against liab ility but also against the suit itself.

8 Herx lacks any persuasive value b ecause it relied only on the religious body’s failure to present “a persuasive cas e” 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 jurisdic tion, and failed to cite relevant authority. Id. at 1090–91. In our appe al, however, the pa rties have fully briefed the applicability of the collateral-order doctrine. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7021 F. The majority errs by discountin g the value of early judicial review based on unidenti fied 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 disa llows “an immediate appeal” because the costs outweigh the bene fits. Maj. Op. at 21–22. Ba sed on this assertion, the majority argues that we should disallow an immediate appeal because the district court denied Faith Bibl e’s motion fo r summary judgment based on factual disputes. Id. at 23–24 n.8. The majority’s argument starts with a faulty premis e: The district court didn’t identify any factual disputes. So we need not disallow “an immediate appeal.” The majority disa grees, 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 a ll is a pure question of law”); Kirby v. Lexingt on Theol. Seminary , 426 S.W.3d 597, 608–09 (Kan. 2014) (“[W]e ho ld the determination of wh ether an empl oyee of a religious institution is a ministerial employee is a question of law for the Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7122 trial court, to be handle d as a threshold matter.”). 9 Granted, the inquiry is fact-dependent and considers the em ployee’s title, qualifications, and responsibilities. But the ultimate ques tion of ministerial status entails a matter of law. Though the district c ourt found a disagreeme nt over ministerial status, the court didn’t identify any ev identiary disputes over Mr. Tucker’s title, job, or duties. The c ourt 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 cas es, when the district court doesn’t identify any factual disputes, we

 “review the record to determine what fact s 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 immun ity, the district c ourt’s reliance onunidentified factual disputes won’t prevent application of the collateral9 The majority states that we tr eated the ministerial exception as a factual question in Skrzypczak v. Roman Ca th. Diocese of Tulsa , 611 F.3d 1238, 1243–44 (10th Ci r. 2010). In Skrzypczak , however, we never addressed whether the mini sterial exception involv ed a matter of law or fact. See id. We simply upheld th e religious body’s mo tion for summary judgment, considering the ev idence as to the claima nt’s job description and responsibilities. Id. at 1243–46. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7223 order doctrine. Id. The same is true here: Unid entified factual disputes don’t prevent application of the collate ral-order doctrine to the ministerial exception.
IV. The ministerial excepti on satisfies the colla teral-order doctrine. Generally, appellate jurisdiction exis ts 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 e nd 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-or der 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 woul d be effectivel y unreviewable after the final judgment. Los Lobos Renewable Power, LLC v. Americ ulture, Inc. , 885 F.3d 659, 664 (10th Cir. 2018). We apply these elemen ts to categories of orders rather than to individual orders, weighing “the inconvenience and costs of piecemeal review” ag ainst “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 ha s often tipped in favor of consti tutionally based immunities.” Id. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7324 Given the district court’s ruling and the ministerial exception’s interests of a high order, the three el ements of the collate ral-order doctrine

are met. 1. The district court’s order conclusively determined the applicability of the mi nisterial exception. The first element requires a district court’s conclusive determination of the issue. See pp. 22–23, above. A district cour t conclusively decides an issue “if it is not subject to later revi ew or revision by the district court.” Los Lobos Renewable Power, LLC v. Americ ulture, Inc. , 885 F.3d 659, 665 (10th Cir. 2018). The district court’s decision conc lusively determines the religious body’s immunity from suit. If the court were to defer cons ideration to the end of the case, the religious body woul d lose its protection from the trial itself. Subjected to suit , the religious body could suffer judicial meddling in religious doctrine, expensive an d time-consuming li tigation over the content and importance of religious tene ts, and blurring of the line between church and state. See Part III(B)–(C), above. Mr. Tucker points out that the reli gious body could ul timately appeal when the case finishes. But that’s also true of qualified immunity, absolute immunity, and Eleventh Amendment immunity. Though the defendants might ultimately pr evail based on these immunitie s, deferral of an appeal Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7425 would conclusively determ ine the need to stand tr ial 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 de ny application of the ministerial exception. The district court did say that it was deferring consideration of Mr. Tucker’s status as a minister. Bu t the ruling effect ively denied Faith Bible’s claim to immunity from suit. The ruling on the ministerial exception thus satisfies th is element of the coll ateral-order doctrine. See id. at 537 (stating that “the court’s de nial of summary j udgment finally and conclusively determines the defe ndant’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 i ssues of disputed fact. But the district court doesn’t identify any factual disputes. See Part III(F), abov e. 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 minist erial exception is completely separate from the merits of the employment dispute. The second element entails comple te separation from the merits. See pp. 22–23, above. Complete separation exists wh en the issue differs significantly “from the fact-related le gal issues” underlyin g the merits of Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7526 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 pres ents 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 b ecome unreviewable. The third element is satisfied when interlocutory review is needed because the matter would othe rwise become unreviewable. See pp. 22–23, above. Mr. Tucker points out that when the district court denies summary judgment on the mini sterial exception, the defend ant can reasse rt the issue later, moving for judgmen t as a matter of law or even filing a postjudgment motion. But that’s true of other defens es like qualified immunity or absolute immunity. Though appellate courts can address the minist erial exception (like qualified immunity or absolute immun ity) at the end of the case, deferral of the appeal could subj ect the religious body to burdensome discovery, trial, and post-judgment mo tions. The eventu al 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. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7627 * * * For these reasons, the denial of the ministerial ex ception on summary judgment satisfies the collateral-order do ctrine. We thus ha ve 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 judgm ent 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 ma tter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). When applying this standard to a ssess qualified immunity, we credit the district court’s assessment of fact s 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 ap plies as a matter of law. The ministerial exception bars courts from considering an employment claim brought by a minister agai nst a religious body. Our Lady of Guadalupe Sc h. v. Morrissey-Berru , 140 S. Ct. 2049, 2055 (2020). Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7728 The parties do not dispute that Faith Bi ble is a religious body. So we need only consider whethe r Mr. Tucker was work ing as a minister.
A. Multiple factors bear on his status as a minister. No rigid formula exists for determ ining whether an employee worked as a minister. Hosanna-Tabor Evangelical Ch urch & Sch. v. EEOC. , 565 U.S. 171, 190 (2012). Wi thout 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 consid ered four factors to characterize a religious schoo l’s teacher as a minister:
1. whether the school had held th e 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 th ese factors, the Court ob served 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 ro le in conveying the Church’s message and carrying out its mission.” Id. Given these circumstances, the Court regarded the teacher as a minister. Id. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7829 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,” includ ing factors beyond those considered in Hosanna-Tabor

. Id. at 2063. The im portance 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 re ligious schools often act as ministers when fulfilling the school’s mission of instruct ing students in matters of faith: The religious education and form ation of students is the very reason for the existe nce of most private religious schools, and therefore the selection and su pervision of the teachers upon whom the schools re ly to do this work live at th e core of their mission. Judicial review of the way in which religious schools discharge those responsibil ities would undermine the independence of religious instit utions in a way that the First Amendment does not tolerate. Id. at 2055. In determining that the two teache rs 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 th eir students, by word and deed, toward the goal of living their lives in accordance with the faith.” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7930 3. The religious school [h ad] “expressly [seen the two teachers] as playing a vital part in carrying out the missi on of the church.” Id. at 2066. Relying on Hosanna-Tabor and Our Lady of Guadalupe , Faith Bible argues that Mr. Tucker work ed as a minister in hi s capacities as a teacher and as a Director of Student Life/Chaplain. 10 In addressing this argument, we credit the district cour t’s assessment of the fact s that a reasonable jury could have found. See Roosevelt-Hennix v. Prickett , 717 F.3d 751, 753 (10th Cir. 2013). Th e district court concluded th at a reasonable jury could have found that und er 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 di strict court’s order. Id. at 277–82, ¶¶ 1–17.

10 Mr. Tucker had lost his posi tion as a Direct or of Student Life/Chaplain before his employment at the school came to an end. For about a month, he had serv ed only as a teacher. See Part I, above. The change led the panel to ask th e 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 beca use Mr. Tucker acted as a minister in both timeperiods. See Part VI(B)–(C), below. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8031 B. As a Director of Student Life/Chaplain, Mr. Tucker was a minister. Under Mr. Tucker’s version and ot her undisputed facts, he qualified as a minister in his ro le as Director of Student Life/Chaplain. Mr. Tucker testified that he had he ld 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 Janu ary 2018, Mr. Tucker se rved as a Director of Student Life/Chaplain at Faith Ch ristian 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. Tu cker 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.” Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8132 Id. at 208–09, 271, 277, 280. These refere nces bear significance because the Supreme Court has cons idered job titles in dete rmining the ministerial

status. Our Lady of Guadalupe , 140 S. Ct. at 2056–57; Hosanna-Tabor , 565 U.S. at 191. Mr. Tu cker’s title as Chaplain reflects religious leadership. The School’s Explanation of Mr. Tucker’s Role The school’s explanat ion of Mr. Tucker’s role, though not dispositive, is “important.” Our Lady of Guadalupe , 140 S. Ct. at 2066. In 2017, Mr. Tucker sign ed the school’s Extens ion Agreemen t for the position of Chaplain. The agreement states: The Superintendent of Faith Christian Academy . . . discussed with Employee the necessity that the hand of th e Lord be on Employee and that he/she exhibits the gift necessary to perform in the position of Chap lain. 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 vo l. 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 communi ty, and the school held Mr. Tucker out as a religious leader. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8233 Responsibilities As a Director of Student Life/Chaplain, Mr. Tucker bore responsibility for religious leader ship. 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 studen ts in developing thei r relationships with Jesus Christ. Appellee’s Jurisdictional Me morandum at 3, 5; Appell ee’s Resp. Br. at 47. These characterizations are supported by the summary-j udgment 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 wo uld address “matters of interest at the school.” Appellant’s App’x vol. 1, at 281. The chapels included so me secular activities, like “announ cements, awards, rallies, student election speeches, and ot her ordinary high schoolrelated matters.” Id. But Mr. Tucker describes the chapels as “religiouslyoriented discussion gr oups.” Appellee’s Jurisdic tional Memorandum at 3. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8334 In a presentation to students, Mr. Tu cker described his duties as “the physical, relational, and spiritual wellbeing” of students and planning “chapels, retreats, outr each projects, and studen t mentoring opportunities that are designed to pr ovide opportunities for stud ent spiritual growth.” Appellant’s App’x vol. 1, at 271. Mr. Tucker’s extension agreemen t also required obedience to scripture and attendance at pray er 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 “Chaplai n” was “primarily a ‘ministerial’ position” de spite the performance of some “secular activities in that role”); see also Hosanna-Tabor , 565 U.S. at 193 (rejecting the argument that minist ers “perform exclus ively religious functions” because “heads of congregations th emselves often have a mi x of duties, including secular ones”). Mr. Tucker had to or ganize religiously-oriented chapels and discussion groups “d esigned to provide oppo rtunities for student spiritual growth.” Appellant’s App’ x vol. 1, at 271 . He was also responsible for spir itual counseling.
* * * Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8435 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 St udent Life/Chaplain.
C. Mr. Tucker also served as a mini ster in his role as a teacher. Mr. Tucker also qualified as a mini ster in his role as a teacher. Title and Training Mr. Tucker not only se rved 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 si gnificant 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 In ternational, and Ma libu Presbyterian college group leadersh ip and worship team,

 he had worked “extensive[l y] . . . in ministry,”

 he was “a dedicated Christian,” and

 he had a “Christian ph ilosophy 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 deni es “specific traini ng in the Bible” in comparison to teachers who taught “Bible” as a subject. Appellant’s Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8536 App’x vol. 1 at 206. But hi s own emphasis of his religious background and relevant credentials reflects an aw areness of his re ligious duties. See Grussgott v. Milwaukee Jewish Day Sch., Inc. , 882 F.3d 655, 659–60 (7th Cir. 2018) (con cluding 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 th e ministerial exce ption despite the claimant’s “limited formal religious training.” 140 S. Ct. at 2058. The Court explained that insistence “on rigi d academic requirements could have a distorting effect ” because “religious traditi ons may differ in the degree of formal religious trai ning thought to be needed in order to teach.” Id

. at 2064. So the absence of requirements for relig ious 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 ch aracter of the job: To become a teacher or full time worker at Faith Christian Academy is a calling fr om the Lord Je sus Christ to minister. You are joining this ministry, not as an employee, but as a minister to [the school’s] students and fa milies. [The school]’s ministry focus emphasizes th e following items:
1. [The school] desires to pr ovide 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 Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8637 integration of biblical truth within each aca demic and extracurricular discipline. 11 Additionally, teachers are responsible to facilitate godly character devel opment, teach good study habits and encourage academic excelle nce. Each teacher must be thoroughly prepared and use eff ective instructio nal 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 attitud es and habits, which will bring them to Christ-like maturity. This includes encourag ing 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 aw are of the importance of our ministry to one ano ther. Each teacher needs to be open to the Holy Spirit to offer words of encouragemen t, prayer, and concern for one another. It is important th at teachers be willing to work as a team, ma ke and receive positive suggestions, stand, as much as possible, with fellow teachers (especially in times of hardship), and guard the reputa tion of others. Trusting in the Lord in areas of personal need s as well as school needs and looking to Him as the primar y 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 “‘integrat e’ a Christian worldvie w into my teaching.” Appellant’s App’x vo l. 1. at 207.

12 The omitted portion of this quotation a ddresses whether staff members must guide “students who may not yet be born ag ain” toward “an abiding relationship with Christ.” Mr. Tu cker states that he was told to let doubting students addre ss 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. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8738 Given the school’s explanation of t eachers’ roles, th e qualifications included religious dedication. For example, when Mr. Tucker applied, he had to say “[w]ithout mental or othe r reservation” that he believed in

 the divine inspirat ion and infallibilit y 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 pers on to receive the gift of eternal life from Jesus Christ in orde r to reach heaven,

 the ministry of the Holy Spirit,

 the church as th e spiritual body h eaded by Christ,

 the principle of baptism through immersion, and

 the eternal existenc e of all people in heaven or hell. Appellant’s App’x vol. 2, at 419. These requiremen ts reflect Faith Bible’s consideration of teachers as religious leaders. Responsibilities Although Mr. Tucker refe rred to himself as a teacher rather than a minister, he taught at a Bible-based re ligious school. So he taught not only science, a secular subject, but also two classes in the Bible Department Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8839 called “Leadership” and “Worldview s and World Religions.” And Mr. Tucker’s duties as a teac her included four religi ous responsibilities:
1. “Live in a vital relationship with God (Father, Son and Holy Spirit) as [the teacher] co mmunicate[s] with Him through prayer and the Scriptures . John 15, Col. 3:25.”
2. “Demonstrate daily a re lationship 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, an d 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 s upport ministerial status. See Fratello v. Archdiocese of N.Y. , 863 F.3d 190, 208 (2d Cir. 2017) (con cluding that the substance of a lay princi pal’s duties supported th e ministerial exception because they entailed “proficien cy in religiou s leadership”). We address not only Mr . Tucker’s responsibi lities but also the criteria used to evaluate his perfor mance 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 th ese 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 memb er consistently illuminat es Biblical principals Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8940 [sic] related to course material in a manner which leads students to evaluate their personal worldview and/or challeng es 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 ou t–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 th e 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 consid er Mr. Tucker’s obligation to teach from a Christian perspective, one that endorsed Christianity’s “worldview,” “integrate[d] a Christia n worldview in hi s teachings,” and “endorse[d] Christianity in general terms.” A ppellant’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 ev en 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 offici als told him not to teach particular doctrines. For this assertion, he presents no evidence. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 9041 education. Appellant’s A pp’x, vol. 2, at 320. Mr . Tucker’s st ated goals support ministerial status.
D. The alleged denial of a tax benefit doesn’t prevent application of the mi nisterial 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 wa s expressly told he ‘did not qualify because [he] was not a mi nister.’” Appellee’s Corre cted Resp. Br. at 45 (quoting Appellant’s Ap p’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 br iefed will not be considered on appeal). Even if we were to consider th is assertion, it would not prevent summary judgment. Under the federa l 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 statem ent of facts, where he said: “At one point, Tucker inquir ed about whether he could take a parsonage allowance and he was told he could not.” Appellant’s App’x vol. 1, at 173. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 9142  obtain compensation consisting of rental allowances or the rental value of the hom es furnished to them as part of their salary. 26 U.S. § 107. The requirements diffe r for the ministerial exception and the tax deduction. See Sally R. Wagenmaker, Ryan Oberly, & Paul Wintors, Religious Tax Reclassifica tion for Public Charities , 33 Taxation of Exempts 34, 40 (2022) (stati ng that the re quirements diffe r significantly for the ministerial exception and status under the tax code as a minister of the gospel). For example, st atus 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 th e 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 mi nister for the purposes of applying [the ministerial] exception, we do not look to ordi nation but in stead to the function of the position.”); Elvig v. Calvin Presbyterian Church , 375 F.3d 951, 958 (9th Cir. 2004) (con cluding that ordi nation is not re quired for the ministerial exception). Even if Mr. Tucker we re a “minister of th e gospel” under the tax code, the tax deduction would be av ailable only if his compensation package included fr ee housing or a rental allowance. And he hasn’t alleged either free housing or a rental allo wance. So Mr. Tucker’s asserted Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 9243 ineligibility fo r the tax deduction lacks any bearing on application of the ministerial exception.
* * * A religious body may be entit led to summary j udgment under the ministerial exception even when th e pertinent factors cut both ways. See,

e.g. , Grussgott v. Milwaukee Jewish Day Sch., Inc. , 882 F.3d 655, 661 (7th Cir. 2018) (con cluding that a religious body was entitled to summary judgment under the mi nisterial exception when “at most two of the four Hosanna-Tabor factors are present”); Conlon v. Intervarsity Christian Fellowship/USA , 777 F.3d 829, 835 (6 th Cir. 2015) (stati ng that the court didn’t need to consider two factor s because the “minis terial exception clearly applies” when “formal title and religious func tion . . . are present”). Here, though, all of the factors support ap plication of the ministerial exception. Mr . Tucker bore th e titles of chaplain and teacher: The job title “Chaplain” reflected a role as spiritual leader, and the school’s handbook regarded teachers as mi nisters. Mr. Tuck er’s role as a religious leader was appare nt not only from his jo b titles but also in his responsibilities as the Director of Stud ent Life/Chaplain an d as a teacher. And he touted his religious experience when applying for a job. Given the prominent role of religion in Mr. Tuck er’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: 9344 VII. Conclusion I would conclude that

 jurisdiction exists under the collateral-o rder 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 an d Colorado law. See Maj. Op. at 9-10 n.2. Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 94