In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3057
EMILY HERX,
Plaintiff-Appellee,
v.
DIOCESE OF FORT WAYNE–SOUTH BEND,
INC. and ST. VINCENT DE PAUL SCHOOL,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:12-cv-00122 RLM — Robert L. Miller, Jr., Judge.
SUBMITTED OCTOBER 17, 2014 — DECIDED DECEMBER 1, 2014
Before CUDAHY, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. A Catholic school in Fort Wayne,
Indiana, discharged a language-arts teacher because she
underwent in vitro fertilization in violation of the moral
teaching of the Catholic Church. She sued the school and the
local diocese alleging that they unlawfully discriminated
against her because of her sex and disability. The case comes to
us from an order denying the defendants’ motion for summary
2 No. 14-3057
judgment. Because that decision is nonfinal, the plaintiff has
moved to dismiss for lack of appellate jurisdiction. For the
reasons that follow, we grant the motion.
I. Background
In August 2003 Emily Herx began work as a junior-high
language-arts teacher at St. Vincent de Paul School in Fort
Wayne, Indiana. Her teaching contract was subject to annual
renewal. In 2008 Herx and her husband learned that she has a
medical condition that causes infertility. She began a course of
fertility treatments, starting with artificial insemination. That
procedure was unsuccessful, and in March 2010 she underwent
in vitro fertilization. Herx told the school’s principal about her
treatment and was allowed to take time off for it. Herx’s
contract was renewed again for the 2010–2011 school year.
In April 2011, just as Herx was about to undergo a second
round of in vitro fertilization, Monsignor John Kuzmich, the
pastor of St. Vincent de Paul Catholic Church, met with Herx
and advised her that in vitro fertilization is incompatible with
the Catholic Church’s moral teaching. Soon after that meeting,
the Diocese of Fort Wayne–South Bend notified Herx that
because she underwent in vitro fertilization in violation of the
Church’s moral doctrine, her teaching contract would not be
renewed for the 2011–2012 school year.
Herx sued the Diocese and St. Vincent School (collectively,
“the Diocese”) alleging claims under Title VII of the Civil
Rights Act, as amended by the Pregnancy Discrimination Act,
see 42 U.S.C. § 2000e-2; id. § 2000e(k), and the Americans with
No. 14-3057 3
Disabilities Act (“ADA”), see 42 U.S.C. §§ 12101 et seq. She
contends that the defendants discriminated against her on the
basis of sex and disability by refusing to renew her contract
because she underwent in vitro fertilization.
The Diocese moved for summary judgment on both claims.
The district court granted the motion with respect to the ADA
claim; that ruling is not at issue on this appeal. On the Title VII
claim, the Diocese invoked two statutory exemptions available
to religious organizations. The first provides as follows:
This subchapter shall not apply to … a religious
corporation, association, educational institution,
or society with respect to the employment of
individuals of a particular religion to perform
work connected with the carrying on by such
corporation, association, educational institution,
or society of its activities.
42 U.S.C. § 2000e-1(a). The second is specific to religiously
affiliated educational institutions and states as follows:
[I]t shall not be an unlawful employment prac-
tice for a school, college, university, or other
educational institution or institution of learning
to hire and employ employees of a particular
religion if such school, college, university, or
other educational institution or institution of
learning is, in whole or in substantial part,
owned, supported, controlled, or managed by a
particular religion or by a particular religious
corporation, association, or society, or if the
curriculum of such school, college, university, or
4 No. 14-3057
other educational institution or institution of
learning is directed toward the propagation of a
particular religion.
Id. § 2000e-2(e)(2).
Invoking the exemptions in the context of this case raises a
question of first impression in this circuit: Are the religious-
employer exemptions in Title VII applicable only to claims of
religious discrimination or do they apply more broadly to other
employment-discrimination claims? Relying on caselaw from
other circuits, the district court held that the religious-
employer exemptions apply only to claims alleging religious
discrimination and do not bar Title VII claims against religious
organizations alleging discrimination on the basis of race,
color, sex, or national origin. See e.g., Kennedy v. St. Joseph’s
Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011); Boyd v. Harding
Acad. of Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996); EEOC v.
Pac. Press Publ’g Ass’n, 676 F.2d 1272, 1279 (9th Cir. 1982).
The Diocese argued in the alternative that if the statutory
exemptions do not apply, then Title VII is unconstitutional as
applied because the jury would be asked to engage in an
impermissible inquiry into the religious teachings of the
Catholic Church. The judge was sensitive to this problem. He
acknowledged that “[t]he Diocese is understandably concerned
about the possibility of a … jury conducting its own secular
analysis of Roman Catholic doctrine on in vitro fertilization.”
He said “[t]hat shouldn’t happen” in this case, and he assured
the parties that he would instruct the jury not to consider
“whether [the Diocese’s] actions were wise, reasonable, or
fair,” but only whether Herx had proved that the Diocese took
No. 14-3057 5
an adverse employment action against her because of her sex.
FEDERAL CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT 3.07
(2010).
The Diocese also argued that the ministerial exception
rooted in the religion clauses of the First Amendment barred
Herx’s claim. See Hosanna–Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 132 S. Ct. 694 (2012). The judge rejected this
argument as well, holding that because Herx was a lay
language-arts teacher with no role in religious education at
St. Vincent, the ministerial exception did not apply.
Finally, the judge held that a reasonable jury could find the
Diocese liable on Herx’s sex-discrimination claim. The Diocese
said it would discharge any employee—male or female—who
was found to have violated the Church’s teaching against in
vitro fertilization. In other words, the Diocese requires all
employees to abide by the moral standards set by the Church
and enforces those standards without regard to sex. The judge
concluded that “a jury wouldn’t be compelled to accept that
avowed gender-neutrality.” This was so, the judge held,
“[e]ven in the face of … evidence [of gender neutrality] from
the Diocese,” because “a jury that resolved every factual
dispute, and drew every reasonable inference, in Mrs. Herx’s
favor could infer that Mrs. Herx’s contract would have been
renewed had she been male and everything else remained the
same.”
For these reasons, the judge denied the Diocese’s motion for
summary judgment on the sex-discrimination claim and set a
trial date of December 16, 2014.
6 No. 14-3057
The Diocese did not ask the court to certify the summary-
judgment order for immediate appeal under 28 U.S.C.
§ 1292(b), as it might have done. See Kennedy, 657 F.3d at 191
(approving the district court’s § 1292(b) certification in a
similar case raising a legal question about the scope of
Title VII’s religious-employer exemptions). Instead, the Diocese
brought this appeal under the auspices of the collateral-order
doctrine.
II. Discussion
The legal and factual merits of this case are not before us.
Because the appeal is interlocutory, Herx has moved to dismiss
for lack of appellate jurisdiction, arguing that the collateral-
order doctrine does not apply. We ordered a response from the
Diocese and suspended merits briefing pending disposition of
the motion. The response is now in, as is a reply brief from
Herx, so the motion is ready for decision.
The federal courts of appeals ordinarily have jurisdiction to
review only “final decisions of the district courts.” 28 U.S.C.
§ 1291. But the collateral-order doctrine confers finality—and
thus immediate appealability—on a small category of interloc-
utory orders “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 v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
Included in this “small category” are “decisions that are
conclusive, that resolve important questions separate from the
merits, and that are effectively unreviewable on appeal from
No. 14-3057 7
the final judgment in the underlying action.” Swint v. Chambers
Cnty. Comm’n, 514 U.S. 35, 42 (1995).
These three conditions for collateral-order review—(1) a
conclusive decision; (2) on an important issue that is conceptu-
ally separate from the merits; and (3) that is effectively
unreviewable on an appeal from a final judgment—are
considered “stringent.” Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 868 (1994). And they must be kept so lest the
collateral-order doctrine “overpower the substantial finality
interests § 1291 is meant to further.” Will v. Hallock, 546 U.S.
345, 350 (2006). These interests include “judicial effi-
ciency … and the ‘sensible policy of avoid[ing] the obstruction
to just claims that would come from permitting the harassment
and cost of a succession of separate appeals from the various
rulings to which a litigation may give rise.’” Id. (quoting
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)).
The Supreme Court’s most recent forays into the collateral-
order doctrine are replete with references to the “narrow” and
“modest” scope of the doctrine. See, e.g., Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106–07 (2009); Will, 546 U.S. at 350
(“[W]e have not mentioned applying the collateral order
doctrine recently without emphasizing its modest scope.”);
Digital Equip., 511 U.S. at 868 (“[T]he ‘narrow’ exception should
stay that way and never be allowed to swallow the general rule
that a party is entitled to a single appeal, to be deferred until
final judgment has been entered … .” (citation omitted)). As if
to drive the point home, the Court has issued this blunt
reminder to those who seek to expand the scope of collateral-
order review: “[W]e have meant what we have said; although
8 No. 14-3057
the Court has been asked many times to expand the ‘small
class’ of collaterally appealable orders, we have instead kept it
narrow and selective in its membership.” Will, 546 U.S. at 350.
To determine whether the requirements for a collateral-
order appeal are met, we “do not engage in an individualized
jurisdictional inquiry.” Mohawk Indus., 558 U.S. at 107 (internal
quotation marks omitted). Instead, the “focus is on the entire
category to which a claim belongs.” Id. (internal quotation
marks omitted).
The recognized categories of collaterally appealable orders
include orders rejecting a public official’s claim of absolute or
qualified immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982)
(absolute immunity); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(qualified immunity), as well as orders rejecting a State’s claim
of Eleventh Amendment immunity, P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144–45 (1993). An
order rejecting a foreign government’s claim of sovereign
immunity also meets the criteria for collateral-order appeal. See
Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 667 (7th Cir.
2012). So does an order denying a criminal defendant’s claim
of double jeopardy. See Abney v. United States, 431 U.S. 651, 660
(1977).
Importantly, these classes of cases involve claims of
“immunity from the travails of a trial and not just from an
adverse judgment.” McCarthy v. Fuller, 714 F.3d 971, 975 (7th
Cir. 2013). “If the defense of immunity is erroneously denied
and the defendant has to undergo the trial before the error is
corrected he has been irrevocably deprived of one of the
No. 14-3057 9
benefits—freedom from having to undergo a trial—that his
immunity was intended to give him.” Id.
Arguments to extend collateral-order review beyond these
few, well-established categories usually fail at the third step in
the analysis, which asks whether the challenged order is
effectively unreviewable on an appeal from a final judgment.
The Supreme Court has explained that at this step the “crucial
question … is not whether [the asserted] interest is important
in the abstract; it is whether deferring review until final
judgment so imperils the interest as to justify the cost of
allowing immediate appeal of the entire class of relevant
orders.” Mohawk Indus., 558 U.S. at 108. The mere fact that “a
ruling ‘may burden litigants in ways that are only imperfectly
reparable by appellate reversal of a final district court judg-
ment … has never sufficed.’” Id. at 107 (quoting Digital Equip.,
511 U.S. at 872)). Rather, “the decisive consideration is whether
delaying review until the entry of a final judgment ‘would
imperil a substantial public interest’ or ‘some particular value
of a high order.’” Id. (quoting Will, 546 U.S. at 352–53)).
A common characteristic in cases in which collateral-order
review has been permitted is that “[i]n each case, some
particular value of a high order was marshaled in support of
the interest in avoiding trial,” not just an interest in avoiding an
adverse judgment. Will, 546 U.S. at 352 (emphasis added). The
interests that meet this high bar include “honoring the separa-
tion of powers, preserving the efficiency of government and
the initiative of officials, respecting a State’s dignitary interests,
and mitigating the government’s advantage over the individ-
ual.” Id. at 352–53.
10 No. 14-3057
The district court’s order does not implicate an interest of
this kind. This suit involves private parties—not public officials
or a unit of government—so delaying appellate review until
final judgment does not “imperil a substantial public interest”
grounded in the separation of powers, the dignity interests of
a State, the efficient operation of the government, or any other
public interest. And although the statutory and constitutional
rights asserted in defense of this suit are undoubtedly impor-
tant, the Diocese has not established that the Title VII exemp-
tions or the First Amendment more generally provides an
immunity from trial, as opposed to an ordinary defense to
liability.
Indeed, most of the Diocese’s brief in opposition to the
dismissal motion consists of an argument attacking the district
court’s summary-judgment ruling on the merits. On the
jurisdictional issue—the only relevant question at this stage—
only a few sentences are addressed to the criteria for collateral-
order review. The Diocese’s primary argument relies on a
passage from our opinion in Korte v. Sebelius, 735 F.3d 654 (7th
Cir. 2013), which construed the Religious Freedom Restoration
Act (“RFRA”). In Korte the government argued for a narrow
construction of RFRA by analogizing to the Title VII exemp-
tions for religious employers. Id. at 676–79. We rejected that
argument, pointing out that the Title VII exemptions and
RFRA are different in important respects. We described the
Title VII exemptions as “legislative applications of the church-
autonomy doctrine” and explained that this principle—where
it applies—“operates as a complete immunity, or very nearly
so.” Id. at 678. We also explained that the Title VII exemptions
are “categorical, not contingent,” whereas RFRA requires a
No. 14-3057 11
balancing of competing interests. Id. In other words, where
applicable, the religious-employer exemptions in Title VII
provide a complete defense to liability without regard to
interest balancing; in contrast, the rights protected by RFRA
can be overcome by “a sufficiently strong governmental
interest.” Id. at 679.
The Diocese reads our “complete immunity” and “cate-
gorical” language to mean that the Title VII exemptions confer
on religious organizations an immunity from trial on an
employment-discrimination claim. That’s much more than this
passage in Korte can bear. We’ve noted on another occasion
that “[w]ords like ‘immunity,’ sometimes conjoined with
‘absolute,’ are often used interchangeably with ‘privilege,’ …
without meaning to resolve issues of [immediate] appeal-
ability.” Segni v. Commercial Office of Spain, 816 F.2d 344, 346
(7th Cir. 1987) (quoting DAN B. DOBBS ET AL., PROSSER AND
KEETON ON THE LAW OF TORTS § 114, at 815 (5th ed. 1984)).
“[T]he description of a defense as an ‘immunity’ rather than a
privilege or affirmative defense … does not resolve the issue
whether the denial of the immunity is a collateral order.” Id.
Without more, the passage the Diocese invokes from Korte
is not enough to confer collateral-order status on a district
court’s decision rejecting a defense based on Title VII’s exemp-
tions for religious organizations. The Diocese cites no authority
for the proposition that the exemptions provide an immunity
from the burdens of trial rather than an ordinary defense to
liability. To our knowledge, there is none.
The Diocese also argues that collateral-order review is
necessary to avert a serious encroachment on its First
12 No. 14-3057
Amendment religious-liberty interests. This argument relies on
McCarthy v. Fuller, 714 F.3d 971 (7th Cir. 2013). There we held
that the conditions for a collateral-order appeal were satisfied
when a district judge ordered that a religious question—
whether the defendant Patricia Fuller was a nun in good
standing in the Catholic Church—be submitted to a jury for
decision. Id. at 973–74. The Holy See, the governing body of the
Catholic Church, had issued a ruling on Fuller’s status, and we
explained that secular courts must accept that ruling as
authoritative. Id. at 974. We pointed out that if the jury were to
conclude that Fuller was a member of a Catholic religious
order, the jury would “be rejecting the contrary ruling of the
religious body (the Holy See) authorized by the Church to
decide such matters.” Id. For this reason, we held that the
district court’s decision was “closely akin to a denial of official
immunity” and allowed a collateral-order appeal in order to
vindicate the important religious-liberty principle that “[a]
secular court may not take sides on issues of religious
doctrine.” Id. at 975.
The circumstances here are not comparable. The district
court has not ordered a religious question submitted to the jury
for decision. To the contrary, the judge promised to instruct the
jury not to weigh or evaluate the Church’s doctrine regarding
in vitro fertilization.1 The judge would do well to be quite
explicit in these instructions. The pattern jury instructions can
be adapted to the particular facts of a given case, and in light
1
The Diocese does not seek collateral-order review of the district court’s
ruling regarding the ministerial exception.
No. 14-3057 13
of the sensitive context here, this case is an appropriate one for
customized instructions.
We express no opinion on the merits of the district court’s
summary-judgment decision. We hold only that the Diocese
has not made a persuasive case for expanding the scope of the
collateral-order doctrine to cover the interlocutory decision
rendered here. We do not question the importance of the
interests the Diocese has asserted. But those interests will not
be irreparably harmed by enforcement of the final-judgment
rule. See McCarthy, 714 F.3d at 975 (explaining that “to be
appealable as a collateral order the order must (unless re-
versed) wreak irreparable harm on the appellant”). Because the
district court’s decision is not effectively unreviewable on an
appeal from a final judgment, the collateral-order doctrine
does not apply. We grant Herx’s motion and DISMISS the
appeal for lack of jurisdiction.2
2
The Diocese also filed a “Motion for Order Notifying District Court of Stay
of District Court Proceedings Pending Appellate Court’s Consideration of
Defendants-Appellants’ Appeal.” Our jurisdictional dismissal of the appeal
moots this motion.