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 RIGHTS CAMPAIGN; IN OUR OWN VOICE; NATIONAL BLACK WOMEN’S No. 20-1230 (D.C. No. 1:19-CV -01652-RBJ-STV) (D. Colo.) FILED United States Court of Appeals Tenth Circuit 

### November 15, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 12 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 THE INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 23 PROTECTION; BENEDICTINE COLLEGE, INC.; THOMAS C. BERG; MARK E. CHOPKO; CHRISTIAN LEGAL SOCIETY; CA RL H. ESBECK; DOUGLAS LAYCOCK; THE CARDINAL NEWMAN SOCIETY; THE LUTHERAN CHURCH-MISSOURI SYNOD; ROBERT W. TUTTLE, Amici Curiae.

________________ _________________ ORDER

________________ _________________ Before HARTZ , TYMKOVICH , MATHESON , BACHARACH , PHILLIPS , McHUGH , MORITZ , EID , CARSON , and ROSSMAN , Circuit Judges. ∗

__ ___________

___ _________________ This matter is before th e co urt on Defend ant-Appellant’s Petition for Rehearing
En Banc (“Petition”). We also have a resp on se from Appellee, and a reply from Appellan t. The Petition , response, and reply were circ ulated to all non-recused judges of the

cou rt who are in regular active service, and a poll was called. A majority of the participating judges voted to deny the Petition. See Fed. R. App. P. 35(a). Consequently, the Petition is DENIED. Judg es Tymkovich, Bacharach, Eid, and Carson voted to grant en banc rehearing. Judge Ebel has filed a sepa rate concurrence in support of the denial of en banc rehearing, which is joined by Judg e McHugh. Judge Bacharach has filed a separate dissen t, which is join ed by Judges Tymkovich and Eid.

 The Honorable Jerome A. Holmes is recused in this matter and did not participate in consideration of the Petition. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 34 The pending motions for leav e to file amicus briefs are GRANTED, as is the Unopposed Motion to Withdraw Amicus Party Maur Hill-M ount Academy’s Joinder in Amicus Brief and for Leave to File Substitute Brief (“Motion to Withdraw”). The Clerk’s Office shall delete the proposed amicus brief submitted with the June 28, 2022 Unopposed Motion for Leave to File Amicus Brief in Support of Appellant Faith Bible Chapel’s Petition for Rehear ing En Banc by Associa tion of Christian Schools International, Colorado Ca tholic Conference, Lutheran Church-Missouri Synod, The Cardinal Newman Society, Benedictine College, and Maur Hill-Mount Academy , and replace it with the substitute amicus brief submitted with the Motion to Withdraw.
Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk Entered for the Court Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 4EBEL , J. Authoring Judge’s Statement Sup porting Order Denying En Banc Review The only question presented in this case is whether, under Cohen’s collateral order doctrine, 1 Defendant Faith Bible Chapel Internationa l (“Faith Christian”) is entitled to an immediate appeal from the district court’s interlocutory ruling de nying Faith Christian summary judgment on its affirmative minist erial exception defense because there are genuinely disputed issues of material fact as to whether Plai ntiff Gregory Tucker qualifies as a minister for purposes of the exception. Our panel decision denying Faith Christian an immediate appeal is consistent with well-estab lished lines of Supreme Court precedent and does not cr eate any circuit split. First and foremost, our decision is cons istent with the Supreme Court’s long line of cases permitting an interlocut ory appeal under Cohen in on ly limited circumstances, as a narrow exception to Congress’s requirement in 28 U.S.C § 1291 that appeals be taken only from final judgments that end litigation. See, e.g., W ill v. Hallock, 546 U.S. 345, 349–50 (2006); Johnson v. Jones, 515 U.S. 304, 309 (1995). The Supreme Court has consistently admonished circuit courts agains t expanding the availability of interlocutory Cohen appeals. See Kell v. Benzon, 925 F.3d 448, 452 ( 10th Cir. 2018). Our decision heeds the Court’s admonitions. The Supreme Court has permitted interl ocutory appeals unde r Cohen in very limited situations, but only to pe rmit early review of legal, rather than factual, questions,

1 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 52 see Johnson, 515 U.S. at 307, 309–18. The Supreme Court has specifically denied an immediate appeal to challenge an inte rlocutory ruling denyi ng summary judgment because there was sufficient ev idence for the case to su rvive summary judgment and proceed to trial. See id. at 307, 313–18. Th at is exactly the issue Faith Christians seeks to appeal immediately in our case. In Johnson, the Supreme Court denied an immediate appeal from a decision denying summary judgment because there remained disputed issues of material fact. The Supreme Court concluded that the costs of delay, expense and di sruption of allowing interlocutory appeals in the midst of ongoi ng litigation outweighed the benefits of an interlocutory appeal. See id. Those same costs support our conclu sion not to permit an immediate appeal in our case. Here, those costs stem in part from the fact that the question of whether an employee qualifies as a minister involves a ca se-by-case fact-intensive inquiry, as the Supreme Court has clearly recognized. See Our Lady of Guadalupe Sch. v. Morrisey-Berru, 140 S. Ct. 2049, 2063, 206 6–67 (2020); Hosanna- Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190–94 (2012). Our panel decision is consistent with the Supreme Court’s recogn ition of the fact-intensive nature of the inquiry into whether a religious employee should be deemed a minister. Contrary to this Supreme Court authority, the dissent from the denial of en banc rehearing (“dissent”) incorrectly insists that this case presents only a legal issue. The dissent also contradicts the Suprem e Court by positing that the ministerial Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 63 exception presents a structural limitation on co urts’ authority to hear employment cases. To the contrary, the Supreme Court has expl ained “that the exception operates as an affirmative defense to an othe rwise cognizable claim, not a jurisdictional bar . . . because the issue presented by the exception is ‘wheth er the allegations the plaintiff makes entitle him to relief,’ not whether the court has ‘power to hear [the] case.’” Hosanna-Tabor. 565 U.S. 195 n.4 (quoting Morrison v. Nat’l Austra lia Bank Ltd., 561 U.S. 247, 254 (2010)). Our panel decision, then, is consistent with well-established lines of Supreme Court precedent. Our decision also does not cr eate any circuit split. It appears that no other circuit has addressed the specific que stion presented here—whether a religious employer is entitled to an immediate appe al under Cohen from a district court’s interlocutory ruling denying the employer summary judgment on its affirmative ministerial exception defense because there are ge nuinely disputed issues of material fact as to whether the employee qualifies as a mi nister. Further, Jus tice Alito, joined by Justices Thomas, Kavanaugh and Barrett, lends support to our position by recognizing, as we did, that a district court’s interlocutor y decision declining to apply the ministerial exception defense can be effectively review ed following the entry of final judgment ending the litigation. See Gordon Coll. v. DeWeese-Boyd, 142 S. Ct. 952, 955 (2022) (Alito, J.; statement respecting denial of certio rari). In light of that, an interlocutory appeal is not warranted under Cohen. Furthermore, the Second Circuit, in addre ssing the separate but related affirmative church autonomy defense, re cently reached the same conclu sion as our panel, holding Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 74 that a religious employer was not entitled to an immediate collatera l-order appeal from the denial of a motion to dismiss based on that defense. See Belya v. Kapral, 45 F.4th 621, 625 (2d Cir. 2022). There is, then, no circuit split on the na rrow procedural issue presented in this case. What little authority there is instead unanimousl y supports our decision. Notwithstanding that authority, the disse nt, instead, cites three cases which address a completely different question—wh ether a religious employer can waive, or forfeit, its affirmative ministerial exception defense by failing to raise it. 2 Each of those three cases addressed waiver only after dete rmining that the employee qualified as a minister, which is the threshold question at issue in our case. Whatever general principles one might glean from these waiver ca ses, they do not govern here and they do not address the question presented in our app eal. Furthermore, in Tomic, the Seventh Circuit treated the ministerial exception as a jurisdictional bar, a position the Supreme Court later rejected in Hosann a-Tabor. The three cases on wh ich the dissent relies, then, do not undercut the well-established Supreme Court case law that compels our decision to deny an interlocutory appeal. I would end with three practical points. Fi rst, there will be no judicial “meddling” with religion if a fact-finder ultimately determ ines that Tucker is not a minister, because

2 The dissent cites to Lee v. Sixth Mount Zion Baptist C hurch, 903 F.3d 113 (3d Cir. 2018); Conlon v. InterVarsity Christian Fe llowship/USA, 777 F.3d 829 (6th Cir. 2015); and Tomic v. Catholic Dioces e, 442 F.3d 1036 (7th Cir. 2006), abrogated in part by Hosanna-Tabor, 565 U.S at 195 n.4. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 85 religious employers are amenable to empl oyment discrimination claims brought by non-ministerial employees. That is the factual question still to be determined in our case. The dissent’s analysis starts w ith the incorrect (and contested) premise that Tucker should be deemed a minister. Second, although we must decide whether to apply Cohen to the category of cases at issue here, see Johnson, 515 U.S. at 304, 315, this particular case is not one where the religious employer is currently being harmed by what the dissent refers to as a “renegade” minister. Tucker, whether or no t a minister, has already long since been fired. Third, although we have held that a religious employ er is not entitled under the collateral order doctrine to an immediate app eal from the denial of summary judgment on its affirmative ministerial exception defense wh en there are genuine disputes of material fact, we do not foreclose other avenues for imme diate appeal in appropriate cases, such as seeking certification for an interlocutory appe al under 28 U.S.C. § 1292(b), or appealing the denial of a preliminary in junction under § 1292(a)(1). Because the panel majority’s opinion wa s consistent with well-established case law, does not create a circuit split, and does not unduly encumber religious organizations, the en banc court appropriately de nied en banc consideration. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 9Gregory Tucker v. Faith Bible Chapel Internati onal, d/b/a Faith Christian Academy, Inc. , Case No. 20-1230 BACHARACH , J., dissenting from the denial of en banc consideration. Parties ordinarily can’t appeal until the district court enters a final judgment. See 28 U.S.C. § 1291. A narrow exception exists under the collateral-order doctrine, which recognizes appe llate jurisdiction over collateral issues even before the entry of a final judgment. Mitchell v. Forsyth , 472 U.S. 511, 524–25 (1985). This appeal involves a religious body’s invocation of the collateralorder doctrine to appeal the denial of summary j udgment on the ministerial exception. The panel majority rejected that effort, treating the ministerial exception like other affirmat ive defenses reviewed by appellate courts after final judgment. In my view, that treatment reflect s a fundamental misconception of the ministerial excepti on. Though most defenses protect only against liability, the ministerial exception pr otects a religious body from the suit itself. Without that protection, re ligious bodies will inevitably incur protracted litigation over matters of religion. The stakes are exceptionally important for religious bodies deci ding whom to hire or fire. These stakes arise from the struct ural role of the ministerial exception in lim iting governmenta l 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 Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 102 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: A Theory of Judicial Review 94 (1980) (arguing that the Religion Clauses perform a “structural or separation of powers function”); Peter J. Smith & Robert W. Tuttle, Civil Procedure & the Ministerial Exception , 86 Fordham L. Rev. 1847, 1880–81 (2018 ) (noting that 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 Evangel ical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 188–89 (2012)); Carl H. Esbeck, The Establishment Clause as a St ructural Restrain t on Governmental
Power , 84 Iowa L. Re v. 1, 3–4 (1998) (arguing that the Establishment Clause serves as a “structural restra int on the gov ernment’s power to act on certain matters pertai ning to religion”). Given the structural role of the ministerial exception, the Supreme Court held that the “m inisterial exception bars . . . a suit ” over the religious body’s decision to fire the plaintiff. Hosanna-Tabor , 565 U.S. at 196 (emphasis added). Despite the Supreme Cour t’s characterization of the ministerial except ion as a bar to the suit itself, the panel majority interprets the ministerial except ion as a mere defense against liability

. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 113 In interpreting the ministerial except ion this way, the panel majority breaks from the only circuit to apply Hosanna

- Tabor ’s characterization of the ministerial exce ption. Prior to Hosanna-Tabor , the Sixth Circuit had held that a religious body could waive the ministerial exception. Hollins v. Methodist Healthcare, Inc. , 474 F.3d 223, 226 (6th Cir. 2007). But the Sixth Circuit later concluded that the ministerial exception was no longer waivable because Hosanna-Tabor had treated the minist erial exception as a bar to the suit itself. Conlon v. Intervarsity Christian Fellowship/USA , 777 F.3d 829, 836 (6 th Cir. 2015). For th is conclusion, the court drew upon two of Hosanna-Tabor ’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.’” Id. (alteration in orig inal) (quoting Hosanna-Tabor , 565 U.S. at 185, 189). The panel majority skirts this reasoning in Hosanna-Tabor , pointing to the Supreme Court’s observatio n elsewhere that the ministerial exception doesn’t dive st the district court of jurisdiction. 1 See HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 195

1 The Second Circuit r ecently took the same a pproach, concluding that the collateral-order doct rine doesn’t cover the church-autonomy doctrine because it isn’t jurisdictional. Belya v. Kapral , 45 F.4th 621, 633 (2d Cir. 2022). Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 124 n.4 (2012). But our issue do esn’t involve jurisdiction in district court. In fact, the panel majority elsewhere observes that characterization of an issue as jurisdictional doesn’t bear on appealability under the collateralorder doctrine. See Tucker v. Faith Bible Chapel Int’l , 36 F.4th 1021, 1038 (10th Cir. 2022) (observing that orders denying dism issal based on subjectmatter jurisdiction don ’t trigger the collateral-order doctrine); see also Gray v. Baker , 399 F.3d 1241, 1245 (10th Cir. 2005) (“[T]he f act that the district court’s order arguably concer ns its own subject matter jurisdiction . . . is not sufficient, st anding alone, to bring the district court’s order within the scope of the coll ateral order doctrine.”). Conversely, even when affirmative defenses aren’t jurisdictional in district court, they may trigger the collateral-order doctrine. For example, absolute immunity and qualified immunity aren’t jurisdicti onal in district

court. See Nevada v. Hicks , 533 U.S. 353, 373 ( 2001) (“There is no authority whatsoever fo r the proposition that absolute- and qualifiedimmunity defenses pertain to the court’s jurisdiction . . . .”). But these affirmative defenses can still trigger the collateral-order doctrine to create appellate jurisdiction

. See Tucker , 36 F.4th at 1025–26, 1039 n.14 (observing that issues involving abso lute immunity and qualified immunity may trigger the collater al-order doctrine). Though absolute immuni ty and qualified immu nity may trigger the collateral-order doctrin e, they are waivable. See Yellen v. Cooper , 828 F.2d Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 135 1471, 1476 n.1 (10th Cir. 1987). That isn’t true fo r the ministerial exception, for three circu its have recognized th e ability of courts to consider the ministerial exception sua sponte and be yond the power of a party to waive. See Lee v. Sixth Mount Zion Baptist Church of Pittsburgh , 903 F.3d 113, 118 n.4 (3d Cir. 2018) (conc luding 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). Given its structural role, the ministerial exception protects religious bodies from suits brought by employees who l ead “important religious ceremonies or rituals.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 199 (2012) (A lito, J., c oncurring). Determining the importance of a reli gious ceremony or ritual inevitably entwines the courts in eccl esiastical doctrine. For example, the ministerial exception may apply to matters of educat ion because of the central role of Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 146 education in many re ligions, including Islam, Protestantism, Judaism, and Seventh-Day Adventism. Our Lady of Guadalupe Sch. v. Morrissey-Berru , 140 S. Ct. 2049, 2064–66 (2020). By deferring the chance to app eal, the panel majority subjects religious bodies to time- consuming and expensive litigation over the religious importance of the roles occupied by countless employees. However the courts weigh these role s in individual cases, the litigation itself enmeshes the courts in ecclesiastical disputes. Given the inevitable intrusion into matters of religion, the panel majority acknowledges the importance of the issue of appealability in matters involving the mi nisterial exception. Tucker v. Fait h Bible Chapel Int’l , 36 F.4th 1021, 1028 (10th Cir. 2022) (“This case presents an important jurisdictional que stion of first impression for this Court: whether a decision denying a religious employer su mmary judgment on its ‘ministerial exception’ defense constit utes an immediatel y appealable final order under the collateral or der doctrine.”). The impo rtance of the issue is also reflected in the many amicus brie fs from states’ at torneys general, religious organizations, and scholars, decrying the impact of the panel majority’s treatment of th e ministerial exception. But the panel majority downplays the impact of delayed review, pointing out that a religi ous body can appeal once the district court has entered a final judgment. The impact of this dela y on religious bodies is Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 157 not difficult to imagine: The majori ty’s approach will often require deferral of an appellate decision while re ligious bodies endu re discovery, pretrial motion practice, trial practice, and even post-judgment litigation. See Rayburn v. Gen. Conf. 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 “subpoena, disc overy, cross-examinatio n, the full panoply of legal process 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) (con cluding that the EEOC’s two- year investigation into a minister’s claim, combined with exte nsive pretrial inquiries and a trial, “constituted an impermissi ble entanglement with judgments th at fell within the exclusive province of the Department of Ca non Law as a pontifical institution”); Demkovich v. St. Andrew the Apostle Par. , 3 F.4th 968, 982, 983 (7th Cir. 2021) (en ba nc) (expressing concern th at litigation over the ministerial exception could “protract[] [the] legal process” and “the very process of inquiry . . . may ‘impinge on rights gu aranteed by the Religion Clauses’” (quoting Rayburn , 772 F.2d at 1171 (4 th Cir. 1985) and NLRB v. Cath. Bishop of Chi. , 440 U.S. 490, 502 (1979))). Given these burdens from the litigation itsel f, religious bodies will undoubtedly hesitate before deciding whether to suspend or fire renegade ministers. See Rayburn , 772 F.2d at 1171 (“Ther e is the danger that churches, wary of EEOC or judicial re view of their decisions, might make Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 168 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.”); see also Cath. Univ. of Am. , 83 F.3d at 467 (sta ting that the potentia l cloud of litigation could affect a religious body’s crite ria in filling future ministerial vacancies). The panel majority defends thes e burdens based on its narrow conception of the ministerial except ion. To the majority, the exception protects only against liab ility, not the litigation itsel f. For this conception of the ministerial exception, the pa nel majority relies on a law review article coauthored by Pr ofessor Robert Tuttle. Tucker v. Fait h Bible Chapel Int’l , 36 F.4th 1021, 1037, 1039 n.13 (10th Cir. 2022) (citing Peter J. Smith & Robert W. Tuttle, Civil Procedure and the Ministerial Exception , 86 Fordham L. Rev. 1847 (2018)). In my view, the panel majority has misinterpreted this article . There Professor Tuttle argues that “application of the collateral-ord er doctrine in this contex t would better guard against Establishment Clause viol ations by trial courts than would the standard requirement of a final judgment before appeal.” Peter J. Smith & Robert W. Tuttle, Civil Procedure and the Ministerial Exception , 86 Fordham L. Rev. 1847, 1881 (2018). Professor Tuttle has also coauthored one of the numerous amici briefs urging rehearing en banc, arguing there that Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 179  “the First Amendment supports early resolution of the ministerial exception as a threshold legal issue, subject to interlocutory appeal,” Brief of Religious Liberty Scholars as Amici Curiae in Support of Ap pellant at 3 (June 28, 2022),

 “[a]llowing litigation to continue when the lower court should have recognized the constitutio nal import of the ministerial exception will compound the injury. . . th e Supreme Court in Hosanna-Tabor found must not occur in litiga tion in full,” id. at 4, and

 “the ministerial exception closel y resembles qualified immunity by protecting from burdens of me rits litigation when the trial court should have granted the i mmunity or defense early in the case,” id . at 10. Other amici share Professor Tuttle’s concerns. Fearing the burdens of litigation on ecclesiastical decisions, sixteen states have implored us to convene en banc to revi sit the role of the mini sterial exception and the applicability of the coll ateral-order doctrine. See Brief of States of Oklahoma et al. as Amic i Curiae in Support of Defendant-App ellant’s Petition for Rehearing En Banc (June 28, 2022). The panel majority not only requir es religious bodies to spend years and fortunes litigating w ho are ministers and who aren’t, but also treats this intrinsically religious question as a typical fact -issue that will “often” require a trial rather than resolu tion through dispos itive motions. Tucker v. Faith Bible Chapel Int’l , 36 F.4th 1021, 1031 n.8, 1035 n.8 (10th Cir. 2022). This characterization will undoubte dly prolong judicial meddling in religious matters. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 1810 Until now, every federal or state appe llate court to address the issue has characterized ministerial st atus as a question of law. See Starkman v.
Evans , 198 F.3d 173, 176 (5th Cir. 1999) (“The status of employees as ministers for purposes of McClure [ v. Salvation Army , 460 F.2d 553 (5th Cir. 1972)] remains a legal conclusi on for this court.”); Conlon v. Intervarsity Christ ian Fellowship/USA , 777 F.3d 829, 833 (6th Cir. 2015) (stating that “whether the [ministerial ] exception attaches at all is a pure question of law”); Kirby v. Lexingt on Theol. Seminary , 426 S.W.3d 597, 608–09 (Kan. 2014) (“[W ]e hold the determination of whether an employee of a religious institution is a minister ial employee is a question of law for the trial court, to be handle d as a threshold matter.”); Weishuhn v. Lansing Catholic Diocese , 787 N.W.2d 513, 517 (Mich. App. 2010 ) (characterizing the applicability of the ministerial exception as a “question of law”); Turner v. Church of Jesus Christ of La tter-Day Saints , 18 S.W.3d 877, 895 (Tex. App. 2000) (“Whethe r a person is a ‘minister’ for the purpose of determining the applicabilit y of the ‘ministerial ex ception’ to judicial review of employment decision s is a question of law.”), rev. denied (2001); see also Heard v. Johnson , 810 A.2d 871, 877 (D.C. 2002) (concluding that “[a] claim of immunity from suit und er the First Amendment” entails an issue of law). The panel majority bucks that treatment, making us the only appellate court in the c ountry to classify the mi nisterial exception as an Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 1911 issue of fact. This classification ma kes summary adjudica tion less likely, extending judicial entanglem ent in ecclesiastical ma tters before religious bodies can obtain ap pellate decisions. See John Deere In s. Co. v. Shamrock Indus., Inc. , 929 F.2d 413, 417 (8th Cir. 1991) (stati ng that classification of an issue as a matter of law makes a case involving that issue “particularly amenab le to summary judgm ent”). The majori ty’s deferral of appellate review thus extends judici al meddling in reli gious matters—the very evil that underlays recognition of the mini sterial exception. Consider how the majority treats mi nisterial status in our case as a question that will “o ften” turn on a factual dispute. Tucker v. Faith Bible Chapel Int’l , 36 F.4th 1021, 1037, 1031 n.4 (10th Cir. 2022). In Mr. Tucker’s own appellate br ief supporting appellate jurisdiction, he argues that his responsibilities as “Chaplain” 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 their relationships with Jesus Christ. Appellee’s Jurisdictional Me morandum at 3, 5; Appell ee’s Resp. Br. at 47. Despite Mr. Tucker’s own characterizatio n of his job as a religious leader, Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 2012 the majority suggests in dicta that the reli gious body’s identical characterization improperly relies on “self-serving documents” as opposed to Mr. Tucker’s evidence involving “t he actual ‘facts and circumstances of his employment.’” Tucker , 36 F.4th at 1047 n.21. As Mr. Tucker and Faith Bible ag ree, these so-called “self-serving documents” accurately describe the job. This agreed description aside, the record establishes that Mr. Tucker wa s hired only because he’d provided written assurances th at 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. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 2113 The majority’s characterization of the ministerial exception serves not only to protract litiga tion for religious bodies wa nting to hire, fire, or change ministers, but also to minimize the possibility of summary judgment on the issue of ministerial status. These consequences implicate important structural issues at th e heart of the Religion Clauses. In my view, we should heed th e concerns expressed by the many amici fearful of how our de cision limits the ability of religious bodies to make ministerial decisions based on ecclesiastical doctrine. Given the extent and legitimacy of those concerns , we should have convened en banc to address the appealability of the district court’s ru ling on the ministerial exception. Appellate Case: 20-1230 Document: 010110769600 Date Filed: 11/15/2022 Page: 22