UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GREGORY TUCKER, 

 Plaintiff - Appellee, 

v. 

FAITH BIBLE CHAPEL 

INTERNATIONAL, d/b/a Faith Christian 

Academy, Inc., 

 Defendant - Appellant. 

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

EUGENE VOLOKH; ROBERT J. 

PUSHAW; RICHARD W. GARNETT; 

ROBERT COCHRAN; ELIZABETH A. 

CLARK; THE ASSOCIATION OF 

CHRISTIAN SCHOOLS 

INTERNATIONAL; THE COLORADO 

CATHOLIC CONFERENCE; 

RELIGIOUS LIBERTY SCHOLARS; 

JEWISH COALITION FOR RELIGIOUS 

LIBERTY; PROFESSOR ASMA UDDIN; 

NATIONAL WOMEN’S LAW CENTER; 

AMERICAN FEDERATION OF STATE, 

COUNTY AND MUNICIPAL 

EMPLOYEES; AMERICAN SEXUAL 

HEATH ASSOCIATION; CALIFORNIA 

WOMEN LAWYERS; DC COALITION 

AGAINST DOMESTIC VIOLENCE; 

DESIREE ALLIANCE; EQUAL RIGHTS 

ADVOCATES; EQUALITY 

CALIFORNIA; EQUITY FORWARD; 

FORGE, INC.; GLBTQ LEGAL 

ADVOCATES & DEFENDERS; HUMAN 

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

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2 

REPRODUCTIVE JUSTICE AGENDA; 

KWH LAW CENTER FOR SOCIAL 

JUSTICE AND CHANGE; 

LATINOJUSTICE PRLDEF; LEGAL AID 

AT WORK; LEGAL VOICE; MUSLIMS 

FOR PROGRESSIVE VALUES; NARAL 

PRO-CHOICE AMERICA; NATIONAL 

ASIAN PACIFIC AMERICAN 

WOMEN’S FORUM; NATIONAL 

ASSOCIATION OF SOCIAL WORKERS; 

NATIONAL COALITION AGAINST 

DOMESTIC VIOLENCE; NATIONAL 

ORGANIZATION FOR WOMEN 

FOUNDATION; NEW YORK LAWYERS 

FOR THE PUBLIC INTEREST; PEOPLE 

FOR THE AMERICAN WAY 

FOUNDATION; RELIGIOUS 

COALITION FOR REPRODUCTIVE 

CHOICE; REPRODUCTIVE JUSTICE 

ACTION COLLECTIVE; SERVICE 

EMPLOYEES INTERNATIONAL 

UNION; SPARK REPRODUCTIVE 

JUSTICE NOW!, INC.; UJIMA INC.; 

THE NATIONAL CENTER ON 

VIOLENCE AGAINST WOMEN IN THE 

BLACK COMMUNITY; WOMEN 

EMPLOYED; WOMEN LAWYERS ON 

GUARD INC.; WOMEN’S BAR 

ASSOCIATION OF THE DISTRICT OF 

COLUMBIA; WOMEN’S BAR 

ASSOCIATION OF THE STATES OF 

NEW YORK; WOMEN’S INSTITUTE 

FOR FREEDOM OF THE PRESS; THE 

WOMEN’S LAW CENTER OF 

MARYLAND; WOMAN’S LAW 

PROJECT; WV FREE; CIVIL RIGHTS 

EDUCATION AND ENFORCEMENT 

CENTER; NATIONAL EMPLOYMENT 

LAWYERS ASSOCIATION; THE 

EMPLOYEE RIGHTS ADVOCACY 

INSTITUTE FOR LAW & POLICY, AND 

THE INSTITUTE FOR 

CONSTITUTIONAL ADVOCACY AND 

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3 

PROTECTION; BENEDICTINE 

COLLEGE, INC.; THOMAS C. BERG; 

MARK E. CHOPKO; CHRISTIAN 

LEGAL SOCIETY; CARL 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 the court on Defendant-Appellant’s Petition for Rehearing 

En Banc (“Petition”). We also have a response from Appellee, and a reply from 

Appellant. 

The Petition, response, and reply were circulated to all non-recused judges of the 

court 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. Judges Tymkovich, Bacharach, Eid, and Carson voted to grant 

en banc rehearing. Judge Ebel has filed a separate concurrence in support of the denial 

of en banc rehearing, which is joined by Judge McHugh. Judge Bacharach has filed a 

separate dissent, which is joined by Judges Tymkovich and Eid. 



 The Honorable Jerome A. Holmes is recused in this matter and did not 

participate in consideration of the Petition. 

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The pending motions for leave to file amicus briefs are GRANTED, as is the 

Unopposed Motion to Withdraw Amicus Party Maur Hill-Mount 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 Rehearing En Banc by Association of Christian Schools 

International, Colorado Catholic 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 

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EBEL, J. Authoring Judge’s Statement Supporting 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 International (“Faith Christian”) is entitled to an 

immediate appeal from the district court’s interlocutory ruling denying Faith Christian 

summary judgment on its affirmative ministerial exception defense because there are 

genuinely disputed issues of material fact as to whether Plaintiff Gregory Tucker 

qualifies as a minister for purposes of the exception. Our panel decision denying Faith 

Christian an immediate appeal is consistent with well-established lines of Supreme Court 

precedent and does not create any circuit split. 

 First and foremost, our decision is consistent with the Supreme Court’s long line 

of cases permitting an interlocutory appeal under Cohen in only 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., Will 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 against 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 interlocutory appeals under Cohen in very 

limited situations, but only to permit early review of legal, rather than factual, questions, 

1

 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). 

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2 

see Johnson, 515 U.S. at 307, 309–18. The Supreme Court has specifically denied an 

immediate appeal to challenge an interlocutory ruling denying summary judgment 

because there was sufficient evidence for the case to survive summary judgment and 

proceed to trial. See id. at 307, 313–18. That 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 disruption of allowing 

interlocutory appeals in the midst of ongoing litigation outweighed the benefits of an 

interlocutory appeal. See id. Those same costs support our conclusion 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 case-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, 2066–67 (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 recognition 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 Supreme Court by positing that the ministerial 

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exception presents a structural limitation on courts’ authority to hear employment cases. 

To the contrary, the Supreme Court has explained “that the exception operates as an 

affirmative defense to an otherwise cognizable claim, not a jurisdictional bar . . . because 

the issue presented by the exception is ‘whether the allegations the plaintiff makes entitle 

him to relief,’ not whether the court has ‘power to hear [the] case.’” Hosanna-Tabor. 565 

U.S. 195 n.4 (quoting Morrison v. Nat’l Australia 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 create any circuit split. It appears that no 

other circuit has addressed the specific question presented here—whether a religious 

employer is entitled to an immediate appeal under Cohen from a district court’s 

interlocutory ruling denying the employer summary judgment on its affirmative 

ministerial exception defense because there are genuinely disputed issues of material fact 

as to whether the employee qualifies as a minister. Further, Justice Alito, joined by 

Justices Thomas, Kavanaugh and Barrett, lends support to our position by recognizing, as 

we did, that a district court’s interlocutory decision declining to apply the ministerial 

exception defense can be effectively reviewed 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 certiorari). In light of that, an interlocutory 

appeal is not warranted under Cohen. 

Furthermore, the Second Circuit, in addressing the separate but related affirmative 

church autonomy defense, recently reached the same conclusion as our panel, holding 

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that a religious employer was not entitled to an immediate collateral-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 narrow procedural issue presented in this 

case. What little authority there is instead unanimously supports our decision. 

 Notwithstanding that authority, the dissent, instead, cites three cases which 

address a completely different question—whether 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 determining 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 cases, they do not govern here and they do 

not address the question presented in our appeal. Furthermore, in Tomic, the Seventh 

Circuit treated the ministerial exception as a jurisdictional bar, a position the Supreme 

Court later rejected in Hosanna-Tabor. The three cases on which 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. First, there will be no judicial “meddling” 

with religion if a fact-finder ultimately determines that Tucker is not a minister, because 

2

 The dissent cites to Lee v. Sixth Mount Zion Baptist Church, 903 F.3d 113 (3d Cir. 

2018); Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829 (6th Cir. 2015); 

and Tomic v. Catholic Diocese, 442 F.3d 1036 (7th Cir. 2006), abrogated in part by 

Hosanna-Tabor, 565 U.S at 195 n.4. 

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religious employers are amenable to employment discrimination claims brought by 

non-ministerial employees. That is the factual question still to be determined in our case. 

The dissent’s analysis starts with 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 not a minister, has already long since been 

fired. 

 Third, although we have held that a religious employer is not entitled under the 

collateral order doctrine to an immediate appeal from the denial of summary judgment on 

its affirmative ministerial exception defense when there are genuine disputes of material 

fact, we do not foreclose other avenues for immediate appeal in appropriate cases, such as 

seeking certification for an interlocutory appeal under 28 U.S.C. § 1292(b), or appealing 

the denial of a preliminary injunction under § 1292(a)(1). 

 Because the panel majority’s opinion was consistent with well-established case 

law, does not create a circuit split, and does not unduly encumber religious organizations, 

the en banc court appropriately denied en banc consideration. 

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Gregory Tucker v. Faith Bible Chapel International, 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 appellate 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 judgment on the ministerial 

exception. The panel majority rejected that effort, treating the ministerial 

exception like other affirmative defenses reviewed by appellate courts after 

final judgment. 

In my view, that treatment reflects a fundamental misconception of 

the ministerial exception. Though most defenses protect only against 

liability, the ministerial exception protects a religious body from the suit 

itself. Without that protection, religious bodies will inevitably incur 

protracted litigation over matters of religion. The stakes are exceptionally 

important for religious bodies deciding whom to hire or fire. 

These stakes arise from the structural role of the ministerial 

exception in limiting governmental power over religious matters. See 

Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829, 836 

(6th Cir. 2015) (“The ministerial exception is a structural limitation 

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2 

imposed on the government by the Religion Clauses.”); Lee v. Sixth Mount 

Zion Baptist Church of Pittsburgh, 903 F.3d 113, 118 n.4 (3d Cir. 2018) 

(noting that the ministerial exception “is rooted in constitutional limits on 

judicial authority”); see also John Hart Ely, Democracy & Distrust: 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 understood as an effectuation of the Establishment 

Clause’s limits on governmental authority to decide strictly and purely 

ecclesiastical matters” (citing Hosanna-Tabor Evangelical Lutheran 

Church & Sch. v. EEOC, 565 U.S. 171, 188–89 (2012)); Carl H. Esbeck, 

The Establishment Clause as a Structural Restraint on Governmental 

Power, 84 Iowa L. Rev. 1, 3–4 (1998) (arguing that the Establishment 

Clause serves as a “structural restraint on the government’s power to act 

on certain matters pertaining to religion”). 

Given the structural role of the ministerial exception, the Supreme 

Court held that the “ministerial 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 Court’s characterization of 

the ministerial exception as a bar to the suit itself, the panel majority 

interprets the ministerial exception as a mere defense against liability. 

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In interpreting the ministerial exception this way, the panel majority 

breaks from the only circuit to apply Hosanna-Tabor’s characterization of 

the ministerial exception. 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 ministerial exception as a 

bar to the suit itself. Conlon v. Intervarsity Christian Fellowship/USA, 777 

F.3d 829, 836 (6th Cir. 2015). For this conclusion, the court drew upon two 

of Hosanna-Tabor’s key passages: 

1. “[T]he Establishment Clause . . . prohibits government 

involvement in ecclesiastical matters.” 

2. “It is ‘impermissible for the government to contradict a 

church’s determination of who can act as its ministers.’” 

Id. (alteration in original) (quoting Hosanna-Tabor, 565 U.S. at 185, 189). 

The panel majority skirts this reasoning in Hosanna-Tabor, pointing 

to the Supreme Court’s observation elsewhere that the ministerial 

exception doesn’t divest the district court of jurisdiction.1 See HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 195 

1

 The Second Circuit recently took the same approach, concluding that 

the collateral-order doctrine doesn’t cover the church-autonomy doctrine 

because it isn’t jurisdictional. Belya v. Kapral, 45 F.4th 621, 633 (2d Cir. 

2022). 

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n.4 (2012). But our issue doesn’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 dismissal 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 fact that the 

district court’s order arguably concerns its own subject matter jurisdiction 

. . . is not sufficient, standing alone, to bring the district court’s order 

within the scope of the collateral 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 jurisdictional in district 

court. See Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no 

authority whatsoever for 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 absolute immunity and qualified immunity 

may trigger the collateral-order doctrine). 

Though absolute immunity and qualified immunity may trigger the 

collateral-order doctrine, they are waivable. See Yellen v. Cooper, 828 F.2d 

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1471, 1476 n.1 (10th Cir. 1987). That isn’t true for the ministerial 

exception, for three circuits have recognized the ability of courts to 

consider the ministerial exception sua sponte and beyond 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) (concluding that “the Church is not 

deemed to have waived [the ministerial exception] because the exception is 

rooted in constitutional limits on judicial authority”); Conlon v. 

InterVarsity Christian Fellowship/USA, 777 F.3d 829, 836 (6th Cir. 2015)

(concluding that “the Constitution does not permit private parties to waive 

the First Amendment’s ministerial exception” because “[t]his 

constitutional protection is . . . structural”); Tomic v. Cath. Diocese of 

Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006) (stating that “the ministerial 

exception . . . is not subject to waiver or estoppel”), abrogated in part on 

other grounds, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. 

EEOC, 565 U.S. 171 (2012). 

Given its structural role, the ministerial exception protects religious 

bodies from suits brought by employees who lead “important religious 

ceremonies or rituals.” Hosanna-Tabor Evangelical Lutheran Church & 

Sch. v. EEOC, 565 U.S. 171, 199 (2012) (Alito, J., concurring). 

Determining the importance of a religious ceremony or ritual inevitably 

entwines the courts in ecclesiastical doctrine. For example, the ministerial 

exception may apply to matters of education because of the central role of 

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education in many religions, 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 appeal, 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 roles 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 ministerial exception. Tucker v. Faith Bible Chapel 

Int’l, 36 F.4th 1021, 1028 (10th Cir. 2022) (“This case presents an 

important jurisdictional question of first impression for this Court: whether 

a decision denying a religious employer summary judgment on its 

‘ministerial exception’ defense constitutes an immediately appealable final 

order under the collateral order doctrine.”). The importance of the issue is 

also reflected in the many amicus briefs from states’ attorneys general, 

religious organizations, and scholars, decrying the impact of the panel 

majority’s treatment of the ministerial exception. 

But the panel majority downplays the impact of delayed review, 

pointing out that a religious body can appeal once the district court has 

entered a final judgment. The impact of this delay on religious bodies is 

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not difficult to imagine: The majority’s approach will often require 

deferral of an appellate decision while religious bodies endure 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 that Title VII actions can be lengthy and subject 

churches to “subpoena, discovery, cross-examination, the full panoply of 

legal process designed to probe the mind of the church in the selection of 

its ministers”); see also EEOC v. Cath. Univ. of Am., 83 F.3d 455, 467 

(D.C. Cir. 1996) (concluding that the EEOC’s two-year investigation into a 

minister’s claim, combined with extensive pretrial inquiries and a trial, 

“constituted an impermissible entanglement with judgments that fell within 

the exclusive province of the Department of Canon Law as a pontifical 

institution”); Demkovich v. St. Andrew the Apostle Par., 3 F.4th 968, 982, 

983 (7th Cir. 2021) (en banc) (expressing concern that litigation over the 

ministerial exception could “protract[] [the] legal process” and “the very 

process of inquiry . . . may ‘impinge on rights guaranteed by the Religion 

Clauses’” (quoting Rayburn, 772 F.2d at 1171 (4th Cir. 1985) and NLRB v. 

Cath. Bishop of Chi., 440 U.S. 490, 502 (1979))). 

Given these burdens from the litigation itself, religious bodies will 

undoubtedly hesitate before deciding whether to suspend or fire renegade 

ministers. See Rayburn, 772 F.2d at 1171 (“There is the danger that 

churches, wary of EEOC or judicial review of their decisions, might make 

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them with an eye to avoiding litigation or bureaucratic entanglement rather 

than upon the basis of their own personal and doctrinal assessments of who 

would best serve the pastoral needs of their members.”); see also Cath. 

Univ. of Am., 83 F.3d at 467 (stating that the potential cloud of litigation 

could affect a religious body’s criteria in filling future ministerial 

vacancies). 

The panel majority defends these burdens based on its narrow 

conception of the ministerial exception. To the majority, the exception 

protects only against liability, not the litigation itself. For this conception 

of the ministerial exception, the panel majority relies on a law review 

article coauthored by Professor Robert Tuttle. Tucker v. Faith 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-order doctrine in this context would better guard against 

Establishment Clause violations 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 

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 “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 Appellant at 3 (June 28, 2022), 

 “[a]llowing litigation to continue when the lower court should 

have recognized the constitutional import of the ministerial 

exception will compound the injury. . . the Supreme Court in 

Hosanna-Tabor found must not occur in litigation in full,” id.

at 4, and 

 “the ministerial exception closely resembles qualified immunity 

by protecting from burdens of merits litigation when the trial 

court should have granted the immunity 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 revisit the role of the ministerial exception and the 

applicability of the collateral-order doctrine. See Brief of States of 

Oklahoma et al. as Amici Curiae in Support of Defendant-Appellant’s 

Petition for Rehearing En Banc (June 28, 2022). 

The panel majority not only requires religious bodies to spend years 

and fortunes litigating who 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 resolution through dispositive motions. Tucker v. 

Faith Bible Chapel Int’l, 36 F.4th 1021, 1031 n.8, 1035 n.8 (10th Cir. 

2022). This characterization will undoubtedly prolong judicial meddling in 

religious matters. 

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Until now, every federal or state appellate court to address the issue 

has characterized ministerial status 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 conclusion for this court.”); Conlon v. 

Intervarsity Christian Fellowship/USA, 777 F.3d 829, 833 (6th Cir. 2015) 

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

question of law”); Kirby v. Lexington Theol. Seminary, 426 S.W.3d 597, 

608–09 (Kan. 2014) (“[W]e hold the determination of whether an employee 

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

the trial court, to be handled 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 Latter-Day Saints, 18 S.W.3d 877, 895 

(Tex. App. 2000) (“Whether a person is a ‘minister’ for the purpose of 

determining the applicability of the ‘ministerial exception’ to judicial 

review of employment decisions is a question of law.”), rev. denied (2001); 

see also Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002) (concluding that 

“[a] claim of immunity from suit under the First Amendment” entails an 

issue of law). 

The panel majority bucks that treatment, making us the only 

appellate court in the country to classify the ministerial exception as an 

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11 

issue of fact. This classification makes summary adjudication less likely, 

extending judicial entanglement in ecclesiastical matters before religious 

bodies can obtain appellate decisions. See John Deere Ins. Co. v. Shamrock 

Indus., Inc., 929 F.2d 413, 417 (8th Cir. 1991) (stating that classification 

of an issue as a matter of law makes a case involving that issue 

“particularly amenable to summary judgment”). The majority’s deferral of 

appellate review thus extends judicial meddling in religious matters—the 

very evil that underlays recognition of the ministerial exception. 

Consider how the majority treats ministerial status in our case as a 

question that will “often” 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 brief 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 students in developing their relationships with 

Jesus Christ. 

Appellee’s Jurisdictional Memorandum at 3, 5; Appellee’s Resp. Br. at 47. 

Despite Mr. Tucker’s own characterization of his job as a religious leader, 

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the majority suggests in dicta that the religious body’s identical 

characterization improperly relies on “self-serving documents” as opposed 

to Mr. Tucker’s evidence involving “the actual ‘facts and circumstances of 

his employment.’” Tucker, 36 F.4th at 1047 n.21. 

As Mr. Tucker and Faith Bible agree, these so-called “self-serving 

documents” accurately describe the job. This agreed description aside, the 

record establishes that Mr. Tucker was hired only because he’d provided 

written assurances that he believed in 

 the divine inspiration and infallibility of the Bible, 

 the existence of one God in the persons of God the Father, God 

the Son, and God the Holy Spirit, 

 the virgin birth, 

 the Lord Jesus Christ’s deity, sinless humanity, atoning death, 

bodily resurrection, ascension to his Father’s right hand, and 

future return in power and glory, 

 the need for every person to receive the gift of eternal life from 

Jesus Christ in order to reach heaven, 

 the ministry of the Holy Spirit, 

 the church as the spiritual body headed by Christ, 

 the principle of baptism through immersion, and 

 the eternal existence of all people in heaven or hell. 

Appellant’s App’x vol. 2, at 419. 

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The majority’s characterization of the ministerial exception serves 

not only to protract litigation for religious bodies wanting 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 the heart of the Religion Clauses. 

In my view, we should heed the concerns expressed by the many 

amici fearful of how our decision 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 ruling on the ministerial 

exception. 

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