The First Amendment’s protection of church autonomy from government regulation is in federal courts implemented by balancing the need of society to regulate conduct against the need of the ecclesiastical need for independent church governance.  To that end, federal civil rights legislation usually contains an exception for religious entities and their employees.  Likewise, the First Amendment, and state constitution counterparts, limit exercise of governing power to secular matters.  To reach these legal conclusions, however, sometimes requires a court to require the parties in a lawsuit through discovery and their own investigations to create a factual record.  The cost of litigation resides mostly in the various pre-trial phases of a lawsuit, with discovery costs being the bulk of the costs.

In Tucker v Faith Bible Chapel, Slip Op. (10th Cir. 2022), the federal trial court had before it a high school teacher in a private church school that also served as a chaplain.  The teacher / chaplain developed a chapel service that the teacher called “a symposium” “on race and faith.”  Parental and student backlash may have led to the termination of Plaintiff from the duties of chaplain and a few weeks later termination from the teaching position.  The Plaintiff alleged the termination was based on discrimination illegal under federal and state law.  The Defendant moved to dismiss invoking the Ministerial Exception to the federal civil rights law.  The federal trial court ordered discovery conducted by the parties solely on the issue of whether Plaintiff’s claim was barred by the Ministerial Exception because Plaintiff held the title of “chaplain” and because he was a high school teacher in a private religious high school.  Upon the conclusion of discovery, the federal trial court overruled the Defendant’s motion for summary judgment based on the Ministerial Exception and held there was a question of fact for a jury to decide.  The United States Court of Appeals for the 10th Circuit, presented with an interlocutory appeal of the order overruling the motion for summary judgment, dismissed the appeal holding it did not have jurisdiction to hear an interlocutory appeal at this time in the case.

By treating the Ministerial Exception to the federal civil rights laws as an “affirmative defense,” a defense that must be factually proven and raised at trial, the cost of litigation must be endured in order to reach a ruling.  The 10th Circuit did not reach the issue of whether the proof placed in the record was sufficient to support or deny the Ministerial Exception.  The impact of the ruling will be that interlocutory appeals will be problematic if a federal trial court refuses to dismiss a case due to a question of fact about the Ministerial Exception affirmative defense.  The pragmatic impact will be that the cost of litigation through trial would become unavoidable.

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