United States Court of Appeals
for the Fifth Circuit
No. 19-60293
Will McRaney,
Plaintiff—Appellant,
versus
The North American Mission Board Of The Southern
Baptist Convention, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:17-CV-80
ON PETITION FOR REHEARING EN BANC
(Opinion – 7/16/2020, 5 Cir., , F.3d
)
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:
The court having been polled at the request of one of its members,
and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Circ. R. 35),
the petition for rehearing en banc is DENIED.
No. 19-60293
In the en banc poll, 8 judges voted in favor of rehearing (Judges
Jones, Smith, Elrod, Willett, Ho, Duncan, Oldham, and Wilson), and 9
judges voted against rehearing (Chief Judge Owen and Judges Stewart,
Dennis, Southwick, Haynes, Graves, Higginson, Costa, and Engelhardt).
ENTERED FOR THE COURT:
___________________________
Stephen A. Higginson
United States Circuit Judge
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No. 19-60293
James C. Ho, Circuit Judge, joined by Jones, Smith, Elrod,
Willett, and Duncan, Circuit Judges, dissenting from denial of
rehearing en banc:
If religious liberty under our Constitution means anything, it surely
means at least this much: that the government may not interfere in an
internal dispute over who should lead a church—and especially not when the
dispute is due to conflicting visions about the growth of the church. But it
turns out that nothing is sacred, for that is precisely what we are doing here.
The First Amendment forbids government intrusion in “matters of
church government.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140
S. Ct. 2049, 2060 (2020). It secures church “autonomy with respect to
internal management decisions that are essential to the institution’s central
mission.” Id. “And a component of this autonomy is the selection of the
individuals who play certain key roles.” Id.
This case falls right in the heartland of the church autonomy doctrine.
A former Southern Baptist minister brought this suit to protest his dismissal
from church leadership. That fact alone should be enough to bar this suit.
As the saying goes, personnel is policy.
Moreover, this case proves the truth of that old adage. The complaint
acknowledges that the plaintiff was dismissed because he “consistently
declined to accept” church policy regarding “the specific area of starting new
churches, including the selection, assessing and training of church planters.”
He even admits that “this cause of action had its roots in Church policy.”
We should take him at his word. This case is a dispute over a church’s vision
for spreading “the gospel of Jesus Christ through evangelism and church
planting”—a fundamental tenet of faith, not just for the defendant in this
suit, but for hundreds of millions of evangelicals around the world. Put
simply, this suit puts the church’s evangelism on trial.
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No. 19-60293
Not surprisingly, the district court dismissed this suit as barred by the
First Amendment. We should have affirmed that decision. But the panel did
the opposite. I respectfully dissent from the denial of rehearing en banc.
I.
The following facts are taken directly from Plaintiff’s complaint and
the strategic partnership agreement (“SPA”) that gives rise to this dispute:
The Baptist Convention for Maryland/Delaware (“Maryland/Delaware”) is
a state convention comprised of 560 Baptist churches that works in
cooperation with the Southern Baptist Convention (“SBC”). The North
American Mission Board (“North America”) is a subdivision of the SBC that
“exists to work with churches, associations and state conventions in
mobilizing Southern Baptists as a missional force to impact North America
with the gospel of Jesus Christ through evangelism and church planting.” Its
priorities include assisting churches in “planting healthy, multiplying,
evangelistic SBC churches,” “appointing, supporting, and assuring
accountability for missionaries,” and “providing missions education and
coordinating volunteer missions opportunities for church members.”
Maryland/Delaware and North America have worked together for
some time under the terms of the SPA—a religious document whose stated
purpose is “to define the relationships and responsibilities of
[Maryland/Delaware] and [North America] in areas where the two partners
jointly develop, administer and evaluate a strategic plan for penetrating
lostness through church planting and evangelism.”
Plaintiff Will McRaney is an ordained minister. As the former
executive director of Maryland/Delaware, he guided the direction of the
ministry and organization, as well as the screening and managing of all staff.
He also served as Maryland/Delaware’s designated representative in SPA
negotiations with North America.
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No. 19-60293
In 2014, North America drafted a new SPA that “gave [North
America] more controls over the financial resources and the hiring,
supervising and firing of staff positions of the state conventions.” North
America then began pressuring Maryland/Delaware—and McRaney in
particular—to accept the new SPA. But McRaney “consistently declined to
accept the newly written SPA.” He “view[ed] the proposed SPA as a
weakening of the autonomy of [Maryland/Delaware] and the relinquishment
of all controls to [North America] in the specific area of starting new
churches, including the selection, assessing and training of church planters.”
In response, North America worked to oust McRaney from his church
leadership position. It advised other Maryland/Delaware leaders that he had
repeatedly refused to meet with North America’s President. It also
threatened to withhold all funding from Maryland/Delaware unless
Maryland/Delaware dismissed McRaney and accepted the new SPA. As
McRaney puts it, North America leaders “g[ave] a one-year notice of
cancellation” of the previous SPA, and “set[] forth in [a] letter . . . false and
libelous accusations against [McRaney]”—all “[a]s a direct result of [his]
refusal to accept the new SPA.” After a series of meetings with North
America, Maryland/Delaware terminated McRaney.
McRaney filed this suit alleging that North America interfered with
his contract with Maryland/Delaware and caused his termination. He also
claims that North America lobbied another religious group to disinvite him
from speaking at a large mission symposium in Mississippi. Finally, he
contends that North America defamed him and caused him emotional
distress by posting a photo of him in its headquarters’ reception area that
“communicate[d] he was not to be trusted and [was] public enemy #1.”
The district court dismissed the suit under the First Amendment,
reasoning that McRaney’s claims would presumably require the court to
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No. 19-60293
determine whether North America had “valid religious reason[s]” for its
actions. McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, 2019 WL
1810991, at *3 (N.D. Miss. Apr. 24, 2019).
But a panel of this court reversed, holding that “[t]he district court’s
dismissal was premature” because it is “not certain that resolution of
McRaney’s claims will require the court to interfere” with “purely
ecclesiastical questions”—“matters of church government, matters of faith,
or matters of doctrine.” McRaney v. N. Am. Mission Bd. of the S. Baptist
Convention, Inc., 966 F.3d 346, 350–51 (5th Cir. 2020).
II.
“The First Amendment protects the right of religious institutions ‘to
decide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine’”—as the Supreme Court
has repeatedly held, and reminded us again just this year. Guadalupe, 140
S. Ct. at 2055 (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox
Church in N. Am., 344 U.S. 94, 116 (1952)). See also Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186 (2012);
Serbian E. Orthodox Diocese for U.S. & Canada v. Milivojevich, 426 U.S. 696,
721–22 (1976); Watson v. Jones, 80 U.S. 679, 733–34 (1871). The church
autonomy doctrine “does not mean that religious institutions enjoy a general
immunity from secular laws.” Guadalupe, 140 S. Ct. at 2060. “[B]ut it does
protect their autonomy with respect to internal management decisions that
are essential to the institution’s central mission.” Id.
So the district court was right to dismiss this suit, because each of the
three actions taken by the religious organizations that McRaney wishes to
challenge here—decisions about whom to place in leadership, whom to host
at a religious conference, and whom to exclude from one’s headquarters—is
an “internal management decision[] that [is] essential to the institution’s
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central mission.” Id. Each of these claims involves internal, “purely
ecclesiastical” matters of church governance that federal courts have no
business adjudicating. Watson, 80 U.S. at 733. See id. (describing certain
matters as “strictly and purely ecclesiastical in . . . character, . . . over which
the civil courts exercise no jurisdiction,” including “matter[s] which
concern[] theological controversy, church discipline, ecclesiastical
government, or the conformity of the members of the church to the standard
of morals required of them”) (emphasis added).
For example, “the authority to select and control who will minister to
the faithful”—that is, deciding who will lead and who will speak—“is the
church’s alone” because it is “a matter ‘strictly ecclesiastical.’”
Hosanna-Tabor, 565 U.S. at 195 (quoting Kedroff, 344 U.S. at 119). As a
unanimous Supreme Court made clear, “[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, depriving the church of
control over the selection of those who will personify its beliefs.” Id. at 188
(emphasis added). After all, “imposing an unwanted minister” or
“[a]ccording the state the power to determine which individuals will minister
to the faithful” violates both “the Free Exercise Clause, which protects a
religious group’s right to shape its own faith and mission through its
appointments,” and “the Establishment Clause, which prohibits
government involvement in such ecclesiastical decisions.” Id. at 188–89. See
also Guadalupe, 140 S. Ct. at 2060 (“[A] church’s independence on matters
of faith and doctrine requires the authority to select, supervise, and if
necessary, remove a minister without interference by secular authorities.”)
(quotations omitted); Simpson v. Wells Lamont Corp., 494 F.2d 490, 492 (5th
Cir. 1974) (“Certainly a congregation’s determination as to who shall preach
from the church pulpit is at the very heart of the free exercise of religion.”).
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Likewise, a religious organization’s decision to exclude and
communicate internally about a former affiliate is a protected “internal
management decision.” See, e.g., Hosanna-Tabor, 565 U.S. at 201 (Alito, J.,
concurring) (explaining that “control over [certain] employees” is an
“essential component” of a religious group’s “freedom to speak in its own
voice, both to its own members and to the outside world”) (quotations
omitted); Watson, 80 U.S. at 733 (“[C]ivil courts exercise no jurisdiction”
over “matter[s] which concern[] . . . church discipline, ecclesiastical
government, or the conformity of members of the church to the standard of
morals required of them . . . .”); Whole Woman’s Health v. Smith, 896 F.3d
362, 373 (5th Cir. 2018) (refusing to compel discovery of a third-party
religious group’s “internal communications” in part because the order
“interfere[d] with [the group’s] decision-making processes,” “expose[d]
those processes to an opponent,” and “w[ould] induce similar ongoing
intrusions against religious bodies’ self-government”); cf. Boy Scouts of Am.
v. Dale, 530 U.S. 640, 648 (2000) (“Forcing a group to accept certain
members may impair [its] ability . . . to express those views, and only those
views, that it intends to express.”); see also W. Cole Durham &
Robert Smith, 1 Religious Organizations & the Law § 5:17
(2017) (“[T]he church autonomy case law . . . has resulted in [courts]
declining to take jurisdiction over numerous subject matters related to
religion, including . . . disputes concerning the discipline of church members,
and claims arising from or related to church communications.”).
So it’s no surprise that the district court dismissed this suit. Because
there’s no way to adjudicate this dispute without violating the church
autonomy doctrine. For example, the panel acknowledges that, to determine
whether North America unlawfully interfered with McRaney’s contract with
Maryland/Delaware, a court will have to inquire why Maryland/Delaware
voted to fire McRaney—including whether North America “intentionally
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No. 19-60293
made false statements about him to [Maryland/Delaware] that resulted in his
termination” or “damaged [his] business relationships”—and if so, whether
to punish North America for doing so. McRaney, 966 F.3d at 349. Likewise,
to determine whether North America’s actions impermissibly deprived
McRaney of a speaking slot at the mission symposium in Mississippi, a court
will need to determine whether North America “got him uninvited to speak
at the mission symposium”—and if so, why. Id. Finally, to hold North
America liable for defamation and intentional infliction of emotional distress,
a court will have to determine why North America circulated an internal
opinion about McRaney and excluded him from its own headquarters—and
then whether to punish North America for doing so.
All of this is anathema to the First Amendment. Decisions about who
should lead, who should preach, and who should be excluded are all
quintessential examples of “internal management decisions” that the
Constitution leaves entirely to the discretion of the church. And this is
especially so where, as here, these decisions were made as the result of a
disagreement over a core mission of the church—establishing new churches
and evangelizing new members.
III.
The panel’s various attempts to justify further proceedings in this case
conflict with bedrock First Amendment doctrine in several additional ways.
At first, the panel suggests that this suit does not implicate the church
autonomy doctrine, because McRaney is merely asking the court to apply
“neutral principles of tort law,” and because dismissal of the case would be
tantamount to giving religious institutions a “preferred position in our
society” by uniquely immunizing them from civil liability. Id. at 348–49, 351.
There are various problems with these rationales, as explained below.
But among the most troubling is this: Under the panel’s logic, no claim would
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No. 19-60293
ever be subject to the church autonomy doctrine—every civil plaintiff
purports to invoke neutral legal principles, and every application of the church
autonomy doctrine grants religious organizations special treatment.
Moreover, these justifications miss a foundational principle of our
Constitution—that the whole point of the First Amendment is to give
religion a “preferred position in our society.” Id. at 348. See, e.g.,
Hosanna-Tabor, 565 U.S. at 189.
Perhaps in recognition of these difficulties, the panel ultimately
decides to backtrack. In the end, it suggests that it is merely too early in the
case to invoke the church autonomy doctrine—and that the doctrine might
be successfully deployed at a later stage of the litigation. But this too fails for
multiple reasons. It’s internally inconsistent with the panel’s neutral
principles and preferential treatment theories, which would presumably bar
application of the church autonomy doctrine at all stages of the case. It
misunderstands both the scope of and reasoning behind the church autonomy
doctrine. And in any event, the district court already has what the panel says
it needs to wait for—certainty that McRaney’s case will turn on whether
North America had “valid religious reason[s]” for its actions. McRaney, 966
F.3d at 351. Indeed, that standard was met with the very first docket entry in
the case—it is clear from the face of McRaney’s complaint (and further
confirmed in his later filings) that this case is all about whether North
America’s actions were based on “valid religious reason[s].” Id.
A.
To begin with, the panel contends that the church autonomy doctrine
does not apply here because this suit only requires the court to apply “neutral
principles of tort law.” Id. at 349. This is wrong for at least three reasons.
First, the panel misinterprets the reference to “neutral principles of
law” in Jones v. Wolf, 443 U.S. 595, 602–04 (1979). To be sure, Jones held
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that courts may employ “neutral principles of law as a means of adjudicating
a church property dispute”—specifically, that courts may “examine certain
religious documents, such as a church constitution, for language of trust in
favor of the general church.” Id. at 604. But this was not to allow “religious
autonomy concerns [to] be ignored whenever an ostensibly neutral or secular
principle or policy seems relevant.” 1 Rel. Orgs. § 5:16. Rather, it was
designed “to protect religious autonomy,” including “internal formulations
of religious doctrine and polity,” “by assuring that secular courts would
intervene in religious affairs only when the religious community itself had
expressly stated in terms accessible to a secular court how a particular
controversy should be resolved.” Id. (emphases added). Jones thus includes
the following cautionary note: “If . . . the interpretation of the instruments
of ownership . . . require[s] the civil court to resolve a religious controversy, then
the court must defer to the resolution of the doctrinal issue by the authoritative
ecclesiastical body.” 443 U.S. at 604 (emphases added).
So Jones is not an invitation to courts to decide all church property
disputes—let alone all other manner of internal church disputes. Rather, it’s
an invitation to churches, where they deem it appropriate, to ask courts to
assist them in resolving certain church property disputes.
Moreover, the panel’s theory that this suit should be allowed because
it involves only “neutral principles of tort law” is tantamount to saying that
any plaintiff can litigate any case against a church, so long as he invokes a legal
principle that complies with Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990). After all, Smith ostensibly
allows the government to impose “neutral law[s] of general applicability” on
the religious and non-religious alike, so long as such laws are reasonably
related to a legitimate government interest. See id. at 879, 881 & n.1. But the
Supreme Court unanimously rejected this position in Hosanna-Tabor. There
the government attempted to apply federal non-discrimination law to a
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No. 19-60293
church on the ground that the law complied with Smith. See 565 U.S. at 189
(“The EEOC and [Plaintiff] . . . contend that our decision in [Smith]
precludes recognition of a ministerial exception.”). But that would require
reading Smith to overturn over a century of church autonomy precedent. Not
surprisingly, then, the Supreme Court dismissed this argument as having “no
merit,” noting that Smith does not govern “internal church decision[s] that
affect[] the faith and mission of the church itself.” Id. at 190. See also 1 Rel.
Orgs. § 5:12 (noting that Hosanna-Tabor “affirmed . . . that the principle of
church autonomy prevails over a neutral and generally-applicable law[] if it
interferes with a religious organization’s dismissal of an unwanted
minister”). The panel’s “misguided application” of Jones “invokes external
neutral standards to override religious autonomy,” “profoundly weaken[ing]
the protection [that] the religious autonomy cases have long provided against
government intrusion in religious affairs,” and “tak[ing] state power into
protected domains in which []binding religious autonomy cases do not allow
it to go.” Id. at § 5:16.1
And consider this: If an appeal to “neutral principles of tort law”
were all it took to sue a religious institution, it would be the exception that
swallowed the rule. Under Guadalupe and Hosanna-Tabor, the church
autonomy doctrine immunizes religious institutions from various
anti-discrimination claims. See also id. at § 5:12 (noting that the Court’s
decision to allow church autonomy to bar suit brought under “a leading piece
of federal civil rights legislation” only “demonstrates [the doctrine’s] reach
and power”). Surely the panel would not contend that anti-discrimination
1
In any event, compliance with Smith is hardly the hallmark of First Amendment
fidelity, considering that “[c]ivil rights leaders and scholars have derided . . . Smith . . . as
‘the Dred Scott of First Amendment law.’” Horvath v. City of Leander, 946 F.3d 787, 794
(5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part) (citing
authorities).
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laws are non-neutral legal principles. So if the panel is right, then Guadalupe
and Hosanna-Tabor must be wrong.
Second, the Supreme Court has never extended the “neutral
principles of law” approach beyond the context of church-property disputes.
To the contrary, the Court has “intimat[ed]” that the church autonomy
doctrine “cannot be brushed aside as irrelevant or controlled by the ‘neutral
principles’ rule of Jones v. Wolf merely because it is raised in defense to
common law claims.” Id. See also id. (noting that in Hosanna-Tabor, “the
Court specifically mentioned contract and tort claims . . . as settings where
the ministerial exception might apply”). In fact, the Supreme Court and
lower courts have invoked the church autonomy doctrine across a broad
range of claims—up to and even including church property disputes. See id.
at § 5:17 (citing cases that “decline[d] to take jurisdiction over numerous
subject matters related to religion, including . . . disputes over church property,
disputes concerning religious employment, disputes between ministers or
church leaders and the church, claims against clergy for malpractice or
breach of fiduciary duty, claims against churches or church leaders for
negligent hiring or poor supervision of employees, disputes concerning the
discipline of church members, and claims arising from or related to church
communications.”) (emphasis added).
Finally, the panel opinion violates our rule of orderliness. In Simpson,
a dismissed pastor, like McRaney, claimed that his suit could be resolved “on
the basis of ‘neutral principles of law,’ which c[ould] be applied without
establishing any particular view or interpretation of religious doctrine.” 494
F.2d at 493. His suit only required the court to determine secular questions,
he claimed—namely, whether he was fired for “his views on race and merger
of the segregated church organization, and because of the color of his wife’s
skin.” Id. This was not a “church dispute,” he theorized, but a secular
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“racial dispute.” Id. In short, “Simpson would narrowly limit ecclesiastical
disputes to differences in church doctrine.” Id. (emphases added).
We rejected the argument. In doing so, we noted that the pastor’s
crabbed view of the church autonomy doctrine contradicted the “‘spirit of
freedom for religious organizations’ . . . reflected in the Supreme Court’s
decisions”—including the “‘power to decide for themselves, free from state
interference, matters of church government as well as those of faith and
doctrine.’” Id. (quoting Kedroff, 344 U.S. at 116).
B.
The panel also contends that invoking the church autonomy doctrine
here would “impermissibly place a religious [institution] in a preferred
position in our society,” and allow “religious entities [to] effectively
immunize themselves from judicial review of claims brought against them.”
McRaney, 966 F.3d at 348, 351.
But the whole point of the First Amendment, of course, is to privilege
religion. As the Supreme Court has unanimously stated, “the text of the
First Amendment itself . . . gives special solicitude to the rights of religious
organizations.” Hosanna-Tabor, 565 U.S. at 189.
That we need to be reminded of this may be what is most alarming
about this case. It is widely understood (or at least it used to be) that “[w]e
are a religious people whose institutions presuppose a Supreme Being.”
Zorach v. Clauson, 343 U.S. 306, 313 (1952). “Prayers in our legislative halls;
the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; ‘so help me God’ in our
courtroom oaths—these and all other references to the Almighty . . . run
through our laws, our public rituals, [and] our ceremonies.” Id. at 312–13.
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So it should be beyond dispute that, “[w]hen the state encourages
religious instruction or cooperates with religious authorities . . . it follows the
best of our traditions. For it then respects the religious nature of our people
and accommodates the public service to their spiritual needs. To hold that it
may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups.” Id. at 313–14.
In short, protecting religious institutions from government
interference is not just the point of the church autonomy doctrine that the
Supreme Court has recognized for nearly 150 years—it is foundational to
who we are as Americans.
C.
Having initially intimated that the church autonomy doctrine can
never bar cases like McRaney’s, the panel switches gears. It suggests that it
is merely too early to dismiss the case on that ground. As the panel now
theorizes, it is not yet “certain” that this case will require the court to
examine whether North America acted for “valid religious reason[s].”
McRaney, 966 F.3d at 351. North America must present some “evidence” of
these religious reasons before a court may consider dismissal on First
Amendment grounds. Id.
Again, this approach is internally inconsistent with the panel’s neutral
principles and preferential-treatment concerns, which would logically apply
at all stages of a lawsuit. It is also wrong for a number of additional reasons.
To begin with, we have no right to condition application of the church
autonomy doctrine on a religious institution’s ability to produce “evidence”
that it had “valid religious reasons” for its actions. Id. To the contrary, the
Supreme Court has been very clear that the church autonomy doctrine does
not “safeguard a church’s decision to fire a minister only when it is made for
a religious reason.” Hosanna-Tabor, 565 U.S. at 194 (emphasis added). “[A]
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church’s independence on matters ‘of faith and doctrine’ requires the
authority to select, supervise, and if necessary, remove a minister without
interference by secular authorities.” Guadalupe, 140 S. Ct. at 2060 (emphases
added). That is why “the general principle of church autonomy” guarantees
“independence,” not only in “matters of faith and doctrine,” but also in
“matters of internal government.” Id. at 2061.
The reason for the Court’s categorical approach in this sphere is
simple: Secular courts are not competent to determine what constitutes a
“valid religious reason”—let alone whether a party has produced sufficient
evidence of one. See, e.g., Milivojevich, 426 U.S. at 713 (“For civil courts to
analyze whether the ecclesiastical actions of a church . . . are . . . ‘arbitrary’
must inherently entail inquiry into [what] . . . canon or ecclesiastical law
supposedly requires the church . . . to follow . . . . But this is exactly the
inquiry that the First Amendment prohibits.”); Watson, 80 U.S. at 733
(“[C]ivil courts exercise no jurisdiction” over “matter[s] which concern[]
theological controversy.”).
Moreover, forcing religious institutions to defend themselves on
matters of internal governance is itself a tax on religious liberty. See, e.g.,
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979) (warning that
“the very process of inquiry” into “the good faith of [a] position asserted by
. . . clergy-administrators and its relationship to [the organizations’] religious
mission” “may impinge on the rights guaranteed by the Religion Clauses”);
Hosanna-Tabor, 565 U.S. at 205–06 (Alito, J., concurring) (“[T]he mere
adjudication of . . . questions [regarding the “real reason” for the dismissal of
a religious employee] would pose grave problems for religious autonomy: It
would require calling witnesses to testify about the importance and priority
of [a] religious doctrine . . . , with a civil factfinder sitting in ultimate judgment
of what the accused church really believes, and how important that belief is
to the church’s overall mission.”); Whole Woman’s Health, 896 F.3d at 373
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(finding it “self-evident” that enforcing a subpoena against a third-party
religious organization would “chill[]” the group’s activities and
“undermine[]” its ability to “conduct frank internal dialogue and
determinations”).
Indeed, by forcing a religious institution to produce “evidence” of
valid religious reasons for its actions, the panel is approving the very kind of
regime that the Supreme Court found so odious in Corporation of the Presiding
Bishopric of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.
327 (1987). “[I]t is a significant burden on a religious organization to require
it, on pain of substantial liability, to predict which of its activities a secular
court will consider religious. The line is hardly a bright one, and an
organization might understandably be concerned that a judge would not
understand its religious tenets and sense of mission. Fear of potential liability
might affect the way an organization carrie[s] out what it underst[ands] to be
its religious mission.” Id. at 336.
Finally, even accepting the panel’s incorrect standard, it is already
obvious from the face of the complaint that litigating this dispute will
inevitably require inquiry into North America’s “valid religious reason[s].”
McRaney, 966 F.3d at 351. McRaney himself argues that North America took
action precisely because he refused to accept church policy in “the specific
area of starting new churches, including the selection, assessing and training
of church planters.” He likewise admits in his response to the motion to
dismiss that “this cause of action had its roots in Church policy” and “began
as a battle of power and authority between two religious organizations.”
***
It should not be difficult for the district court to dismiss this case again
on remand, even accepting the incorrect standards set forth by the panel.
McRaney admitted, both in his complaint and elsewhere, that this case is
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rooted in a dispute over church policy. Those statements were not
mentioned by the panel, and they should be enough to show on remand that
there is “evidence” that this case will turn on whether there are “valid
religious reason[s]” behind the actions challenged here. Id.
I nevertheless find the panel decision troubling because it invites
future challenges to internal church decisions based on “neutral principles of
tort law.” Id. at 349. And no doubt future plaintiffs will be less candid than
McRaney in admitting the religious motivations at the heart of their disputes.
The denial of rehearing en banc in this case is accordingly an
“ominous sign” and “grave cause for concern” for “those who value
religious freedom.” Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2433 (2016)
(Alito, J., dissenting from the denial of certiorari). I respectfully dissent.
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Andrew S. Oldham, Circuit Judge, joined by Smith, Willett,
Duncan, and Wilson, Circuit Judges, dissenting from the denial of
rehearing en banc:
The Supreme Court has told us that the judicial power of the United
States does not extend to ministry disputes. Watson v. Jones, 80 U.S. 679, 727
(1871); see also Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,
2059–61 (2020). This case should’ve ended with a straightforward
application of that doctrine. Dr. McRaney got into a ministry dispute with
the Baptist Convention of Maryland/Delaware (“BCMD”) and the North
American Mission Board. The source of that dispute? McRaney did not share
the religious organizations’ ministry vision for church planting. So BCMD
voted to terminate McRaney. Then McRaney brought the ecclesiastical
dispute to the civil courts. The ecclesiastical-autonomy doctrine requires us
to stay out of it. But our panel decision puts us in the middle of it. Indeed, the
district court on remand is tasked with determining whether the ecclesiastical
organizations have “valid religious reasons” for their actions. I respectfully
dissent.
I.
As always, I start with the Constitution’s original public meaning. The
ecclesiastical-autonomy doctrine has a rich historical pedigree. And that
history informed the meaning of the Constitution and its Religion Clauses at
the Founding.
A.
In the Middle Ages, clergy were categorically exempt from the reach
of civil courts. See Felix Makower, The Constitutional
History and Constitution of the Church of England 384–
94 (London, 1895). During the reign of the Saxon kings, civil courts had no
jurisdiction over clergy accused of even clearly secular crimes unless and
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until the bishop divested them of their spiritual authority. Leonard W.
Levy, Origins of the Fifth Amendment 43 (1968); see, e.g.,
Wihtræd c. 6 (695) (“If a priest allow of illicit intercourse; or neglect the
baptism of a sick person, or be drunk to that degree that he cannot do it; let
him abstain from his ministry until the doom of the bishop.”); Alfred c. 21
(892) (“If a priest kill another man, . . . let the bishop secularize him; then let
him be given up from the minister . . . .”); Edward and Guthrum c. 4 § 2
(906) (“If a priest commits a crime worthy of death, he shall be seized and
kept until the bishop’s judgment.”).1 And during the reign of King Edgar the
Peaceful (959–975), the Church required all disputes between clergymen to
be addressed before bishops and not secular courts. See Makower, supra,
at 389. Spiritual supervisors retained exclusive competence to discipline
clergy, and civil courts could not intervene in church matters. See id. at 389–
90.
The Church’s exclusive jurisdiction over clergy served as a one-way
jurisdictional boundary. See id. at 390–91. Although civil courts were
powerless to interfere with the matters affecting clergy or other ministerial
prerogatives, religious authorities extended their power into the operation of
civil courts in a variety of ways. See id. at 385–86. For example, ecclesiastical
leaders served alongside a “high civil official” on civil courts. Id. at 384. King
Edgar mandated that “the bishop of the shire and the ealdorman” sit
together as a civil judicial body empowered to apply both “the law of God”
and “the secular law.” Edgar III c. 5. Thus, while civil officials had no role in
ecclesiastical matters, ecclesiastical officials adjudicated both sectarian and
secular matters. See Makower, supra, at 384–85; William Richard
1
Obviously, the present case involves only non-criminal controversies and, beyond
that, is limited to disputes between and among ecclesiastical officials. The aforementioned
examples are meant only to illustrate the ancient roots of ecclesiastical jurisdiction.
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Wood Stephens, The English Church from the Norman
Conquest to the Accession of Edward I at 49 (1901).
The Norman Conquest further solidified the divide. Around 1076,
King William I issued an ordinance formally divesting civil courts of subject
matter jurisdiction over religious matters. See Ordinance of William I
Separating the Spiritual and Temporal Courts (“[N]o bishop . . . shall . . .
bring before the judgment of secular men any case which pertains to the rule
of souls.”); 1 William Stubbs, The Constitutional History
of England in Its Origin and Development 307–08 (3d ed.
Oxford, 1897). The ordinance established separate ecclesiastical courts.
Stephens, supra, at 49. As a result, bishops and other clergy were granted
exclusive jurisdiction over all cases “pertain[ing] to the rule of souls.”
Ordinance of William I. Not only did the Church retain exclusive personal
jurisdiction over cases involving its clergymen, it also gained exclusive
subject matter jurisdiction over disputes involving “the canons and the
episcopal laws.” Ibid.; accord Makower, supra, at 392. The resulting
changes were legion. See Stubbs, supra, at 307–08.
Over the next several centuries, the civil and ecclesiastical courts
continued to dispute the boundaries of their respective jurisdictions. See
Makower, supra, at 392–93. The courts each strived to extend their
competence to reach additional categories of cases claimed by the other. Ibid.
In their struggle, “[t]he lay courts employed new weapons” while “the
clergy resorted to the old.” Harold W. Wolfram, The “Ancient and Just”
Writ of Prohibition in New York, 52 Colum. L. Rev. 334, 334 (1952).
For example, the clergy threatened to excommunicate civil judges
who infringed ecclesiastical jurisdiction, while civil courts issued writs of
prohibition. Ibid. Writs of prohibition were injunctive. See Norma Adams,
The Writ of Prohibition to Court Christian, 20 Minn. L. Rev. 272, 274
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(1936). Blackstone described them as necessary to secure the jurisdiction of
the King’s Bench over secular controversies. 3 William Blackstone,
Commentaries *112. When issued, they stripped ecclesiastical
jurisdiction and required transfer of the case to a civil court. See Adams,
supra, at 274.
But a writ of prohibition was not always the last word. See id. at 291–
92. An ecclesiastical court could challenge a writ of prohibition with a
competing writ of consultation seeking return of the suit to its court. Ibid.
The writs of prohibition and consultation created a procedural mechanism
for deciding the appropriate venue for resolution of particular controversies.
But they did precious little to clarify the jurisdictional boundary between the
secular and sacred. The line between the two remained an oft-litigated source
of controversy for centuries to come.
Consider for example the famed case of Nicholas Fuller. See Nicholas
Fuller’s Case (1607), 12 Co. Rep. 41 (K.B.). There, the High Commission—
an ecclesiastical court—hauled Fuller before it to answer for various
contemptuous statements he made against high commissioners and other
religious authorities. See Roland G. Usher, Nicholas Fuller: A Forgotten
Exponent of English Liberty, 12 Am. Hist. Rev. 743, 747–48 (1907). But
Fuller, a rabble-rousing lawyer, disputed the jurisdiction of the High
Commission and sought a writ of prohibition to transfer the case to the
King’s Bench. Id. at 749–50. Fuller argued that because his case implicated
slander and contempt—purely secular crimes—jurisdiction could not lie in
an ecclesiastical court. See 12 Co. Rep. at 42; Usher, supra, at 749–50. The
King’s Bench issued the writ prohibiting ecclesiastical jurisdiction based on
the secular crimes for which Fuller stood accused. Usher, supra, at 750. But
upon reconsideration, Sir Edward Coke, then Chief Justice of the King’s
Bench, issued a writ of consultation partially returning jurisdiction to the
High Commission. 12 Co. Rep. at 43–44. In doing so, Coke recognized and
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reaffirmed the jurisdictional boundary between ecclesiastical and civil
jurisdiction.
The important point for present purposes is not the precise contours
of that boundary, which obviously changed over time. What matters is that
the jurisdictional line prohibiting civil courts from intruding on ecclesiastical
matters is an ancient one. It goes back to the Middle Ages. It has been part of
England’s formal law since William the Conqueror. It’s so entrenched in
English history that even Coke—the seventeenth century’s fiercest
champion of civil jurisdiction and the common law—respected it. And
although there were disputes about boundaries of ecclesiastical jurisdiction
over laypersons like Nicholas Fuller, there could be little dispute about
ecclesiastical jurisdiction over ecclesiastical matters like ministry disputes
and discipline.
B.
English philosopher John Locke also recognized the jurisdictional
boundary between religious and civil authority. His Letter Concerning
Toleration sought “to distinguish exactly the business of civil government
from that of religion, and to settle the just bounds that lie between the one
and the other.” John Locke, A Letter Concerning Toleration
10 (J. Brook ed., 1796) (1689). Locke believed it was “the duty of the civil
magistrate, by the impartial execution of equal laws, to secure unto all the
people in general, and to every one of his subjects in particular, the just
possession of these things belonging to this life.” Id. at 11. But he recognized
that because the “jurisdiction of the magistrate reaches only to these civil
concernments . . . it neither can nor ought in any manner to be extended to the
salvation of souls.” Ibid. (emphasis added); cf. Ordinance of William I.
Locke’s work was foundational to the original public understanding of
church autonomy in America. See Michael W. McConnell, The Origins and
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Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1431 (1990) (“Locke’s ideas . . . are [an] indispensable part of the
intellectual backdrop for the framing of the free exercise clause.”); Carl H.
Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early
American Republic, 2004 BYU L. Rev. 1385, 1420 (2004) (“Locke’s theory
was imbibed by most educated Americans . . . .”); Noah Feldman, The
Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346, 354
(2002) (“Locke’s version of the idea of liberty of conscience formed the basic
theoretical ground for the separation of church and state in America.”). For
example, Baptist preacher John Leland made almost verbatim Lockean
arguments in favor of disestablishment: “The rights of conscience should
always be considered inalienable—religious opinions a[re] not the objects of
civil government, nor any way under its jurisdiction.” John Leland, The
Yankee Spy: Calculated for the Religious Meridian of Massachusetts, but Will
Answer for New Hampshire, Connecticut, and Vermont, Without Any Material
Alterations (1794), reprinted in The Writings of the Late Elder
John Leland 213, 228 (1845). But Locke didn’t go far enough for many
Evangelicals. That’s because Locke was a legislative supremacist—he
believed a conflict between the law and matters of faith “does not take away
the obligation of that law, nor deserve a dispensation.” A Letter
Concerning Toleration, supra, at 51. Locke attempted to rationalize
his position by arguing that such conflicts would “seldom happen.” Ibid.
That was hollow solace to “[t]he Baptists languishing in the
Culpepper jail and the Presbyterians fighting legislative interference with
their form of church governance.” McConnell, supra, at 1445. So
Evangelicals in America argued for disestablishment on grounds that
establishment tended to corrupt religion through governmental interference.
See, e.g., Declaration of the Virginia Association of Baptists (Dec. 25, 1776),
reprinted in 1 The Papers of Thomas Jefferson 660–61 (Julian P.
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Boyd ed., 1950) [hereinafter Papers of Thomas Jefferson] (arguing
that preachers should not be “Officers of the State” because “those whom
the State employs in its Service, it has a Right to regulate and dictate to; it may
judge and determine who shall preach; when and where they shall preach; and
what they must preach.”). And they argued that ecclesiastical jurisdiction
must be defined by looking to “what matters God is concerned about,
according to the conscientious belief of the individual.” McConnell, supra,
at 1446.
James Madison echoed those views. Madison’s personal opinions did
not always accord with the Religion Clauses he helped frame.2 So I reference
him simply as one datum in the public understanding of ecclesiastical
jurisdiction. In 1785, when Virginia’s legislature sought to pass a bill
providing for compulsory support of religion, Madison penned the then-
anonymous Memorial and Remonstrance Against Religious Assessments.
Madison objected “[b]ecause if Religion can be exempt from the authority of
the Society at large, still less can it be subject to that of the Legislative Body.
The latter are but the creatures and vicegerents of the former. Their
jurisdiction is both derivative and limited.” James Madison, Memorial and
Remonstrance Against Religious Assessments (June 20, 1785), in 5 The
Founders’ Constitution 82 (Philip B. Kurland & Ralph Lerner eds.,
1987). And further emphasizing the line between ecclesiastical jurisdiction
and civil authority, Madison objected:
2
To take one example, the First Amendment plainly allows Congress to have a
Chaplain. See Marsh v. Chambers, 463 U.S. 783 (1983). As a member of the first Congress,
Madison voted for the bill that established the Chaplain. See 1 Annals of Cong. 891
(1789). Yet many years later, he expressed his personal view that the office was
unconstitutional. See Elizabeth Fleet, Madison’s “Detached Memoranda,” 3 Wm. & Mary
Q. 534, 558 (1946).
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Because the Bill implies either that the Civil Magistrate is a
competent Judge of Religious Truth; or that he may employ
Religion as an engine of Civil policy. The first is an arrogant
pretension falsified by the contradictory opinions of Rulers in
all ages, and throughout the world: the second an unhallowed
perversion of the means of salvation.
Id. at 83.
And even Thomas Jefferson—who had little or no sympathy for
America’s churches—evoked ecclesiastical jurisdiction. (Query, however,
whether he did so unwittingly.) In 1801, the Danbury Baptist Association
wrote to President-elect Jefferson, explaining that their “[s]entiments are
uniformly on the side of Religious Liberty” and expressing hope that
Jefferson would recognize that religion “is at all times and places a Matter
between God and Individuals.” 35 Papers of Thomas Jefferson,
supra, at 407–09. Jefferson saw the letter as providing an opportunity “to
reprimand his clerical and Federalist opponents and to propagate his own,
profoundly anticlerical, vision of the relationship of religion to politics.”
Philip Hamburger, Separation of Church and State 144
(2002). Three months later, Jefferson responded:
Believing with you that religion is a matter which lies solely
between Man & his God, that he owes account to none other
for his faith or his worship, that the legitimate powers of
government reach actions only, & not opinions, I contemplate
with sovereign reverence that act of the whole American
people which declared that their legislature should “make no
law respecting an establishment of religion, or prohibiting the
free exercise thereof,” thus building a wall of separation
between Church & State.
36 Papers of Thomas Jefferson, supra, at 258.
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Jefferson’s wall metaphor went almost completely unnoticed in the
nineteenth century. See Hamburger, supra, at 162–64. And it was
generally misunderstood in the twentieth century: “[W]hat should be
regarded as an important feature of religious freedom under constitutionally
limited government too often serves as a slogan, and is too often employed as
a rallying cry, not for the distinctiveness and independence of religious
institutions, but for the marginalization and privatization of religious faith.”
Richard W. Garnett, Pluralism, Dialogue, and Freedom: Professor Robert Rodes
and the Church-State Nexus, 22 J.L. & Religion 503, 504 (2006–2007).
The Supreme Court invoked it, see Everson v. Bd. of Educ., 330 U.S. 1, 16
(1947), but not without criticism, see Wallace v. Jaffree, 472 U.S. 38, 107
(1985) (Rehnquist, C.J., dissenting) (“Whether due to its lack of historical
support or its practical unworkability, the Everson ‘wall’ has proved all but
useless as a guide to sound constitutional adjudication.”). And in the twenty-
first century, it appears the Supreme Court has relegated Jefferson’s “wall”
to dissenting opinions. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.
2067, 2105 (2019) (Ginsburg, J., dissenting); Van Orden v. Perry, 545 U.S.
677, 708 (2005) (Stevens, J., dissenting).
Of interest here, however, Jefferson did not invent the metaphor.
Before Jefferson, Roger Williams invoked the wall as an aspirational “image
of the purity he sought in religion.” Hamburger, supra, at 38. Before
Williams was Richard Hooker. See id. at 32–38 (explaining how the wall
between church and state “first became widely known in England when
[Anglican apologist] Richard Hooker ungenerously used it to characterize the
position of Protestant dissenters who sought to purify the English church”).
And before that, Christians had used the “ancient phrase,” id. at 3, since the
time of Jesus. See Garnett, supra, at 507 (noting that the separation of church
and state was “an ancient Western teaching rooted in the Bible” (quoting
John Witte, Jr., God’s Joust, God’s Justice: Law and
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Religion in the Western Tradition 210 (2006))). Early
Christians invoked the wall to “differentiate[] between civil and ecclesiastical
jurisdiction—between the powers of regnum and sacerdotium.”
Hamburger, supra, at 23. And “they often took for granted that church
and state were distinct institutions, with different jurisdictions and powers.”
Id. at 21.
II.
Consistent with the history recounted above, the Supreme Court has
held that the ecclesiastical-autonomy doctrine carries jurisdictional
consequences. In Watson v. Jones, two competing church factions invoked
civil jurisdiction to resolve their dispute over church property. 80 U.S. at
691–92. The dispositive issue was jurisdictional—namely, whether the
judicial power of the United States extended to such ecclesiastical disputes.
See id. at 732–33. The Court held that churches, rather than courts, have the
final say over disputes implicating “theological controversy, church
discipline, ecclesiastical government or the conformity of the members of the
church to the standards of morals required.” Ibid. The upshot: over
ecclesiastical and religious controversies, “civil courts exercise no
jurisdiction.” Id. at 733.
Of course, “‘jurisdiction’ . . . is a word of many, too many, meanings.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006) (quotation omitted). And
the “profligate use of the term” has caused much confusion. See United Pac.
R.R. Co. v. Bhd. of Locomotive Eng’r & Trainmen Gen. Comm. of Adjustment
Cent. Region, 558 U.S. 67, 81–83 (2009) (describing the general confusion
caused by courts using the word “jurisdiction” to refer to various unrelated
legal concepts).
But the Watson Court emphasized that it really meant what it said. See
80 U.S. at 732–33. It explained that a civil court wielding the judicial power
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to settle an ecclesiastical dispute would be tantamount to a church “try[ing]
one of its members for murder, and punish[ing] him with death or
imprisonment.” Id. at 733. Such a sentence would “be utterly disregarded by
any civil court” because the crime of murder falls within the exclusive
jurisdiction of civil authorities. Ibid. Similar, the Court explained, is the
exclusive jurisdiction of a church to settle ecclesiastical or ministerial
disputes. Id. at 733–34. The Supreme Court later anchored Watson’s
jurisdictional holding in the First Amendment. See Kedroff v. St. Nicholas
Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)
(noting that the Watson “opinion[] radiates . . . a spirit of freedom for
religious organizations” and “an independence from secular control or
manipulation”). And the Court reaffirmed it in 1976. See Serbian E. Orthodox
Diocese for U.S. & Canada v. Milivojevich, 426 U.S. 696, 713 (1976)
(preventing courts from inquiring into church personnel decisions in
observation of “the general rule that religious controversies are not the
proper subject of civil court inquiry”). So far so neat.
In subsequent cases, however, the Court created contrary rules. See,
e.g., Jones v. Wolf, 443 U.S. 595, 602 (1979) (explaining that “a State is
constitutionally entitled to adopt neutral principles of law as a means of
adjudicating a church property dispute”); Emp. Div. v. Smith, 494 U.S. 872
(1990) (purporting to exclude neutral laws of general applicability from First
Amendment scrutiny). Then in Hosanna-Tabor Evangelical Lutheran Church
& Sch. v. E.E.O.C., the Supreme Court unanimously rejected the proposition
that cases like Smith preclude ecclesiastical exemptions to neutral laws. See
565 U.S. 171, 189–90 (2012). At the same time, Hosanna-Tabor mentioned in
a footnote that part of the ecclesiastical-autonomy doctrine “operates as an
affirmative defense to an otherwise cognizable claim, not a jurisdictional
bar.” Id. at 195 n.4. And while Our Lady of Guadalupe broadly reaffirmed
ecclesiastical autonomy in matters of faith, ministry, doctrine, and church
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governance, it did not have occasion to consider whether the doctrine retains
jurisdictional consequences. Cf. 140 S. Ct. at 2060 (“[C]ourts are bound to
stay out of employment disputes involving those holding certain important
positions with churches and other religious institutions.”).3
Since Hosanna-Tabor, confusion over the ecclesiastical-autonomy
doctrine has increased. Some courts still see it as jurisdictional. See, e.g.,
Flynn v. Estavez, 221 So. 3d 1241, 1247 (Fla. Dist. Ct. App. 2017) (“In Florida,
courts have interpreted the doctrine as a jurisdictional bar, meaning a claim
should be dismissed upon a determination that it requires secular
adjudication of a religious matter.”(quotation omitted)); Bigelow v. Sassafras
Grove Baptist Church, 786 S.E.2d 358, 365 (N.C. Ct. App. 2016) (noting “the
ecclesiastical abstention doctrine . . . is a jurisdictional bar to courts
adjudicating ecclesiastical matters of a church”); In re St. Thomas High Sch.,
495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016), appeal dism’d
sub nom. St. Thomas High Sch. v. M.F.G., 2016 Tex. App. LEXIS 5035 (Tex.
App.—Houston [14th Dist.] July 12, 2016, no pet.) (noting the church-
autonomy doctrine is “a threshold jurisdictional question”). Those courts
think Hosanna-Tabor left Watson’s broader rule undisturbed. See, e.g., Church
of God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 S.W.3d 146, 157
3
If the ecclesiastical-autonomy doctrine retains jurisdictional consequences, it’s
not clear they come from the First Amendment. After all, the text of that Amendment does
not purport to limit the judicial power of the United States—unlike say the Eleventh
Amendment. See U.S. Const. amend. XI (“The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.”). On the other hand, the Supreme Court has made clear that States
enjoy sovereign immunity outside of the Eleventh Amendment—and that immunity carries
jurisdictional consequences. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73
(2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 72–73 (1996). It’s possible that the
jurisdictional consequences of the ecclesiastical-autonomy doctrine likewise come from the
original public meaning of Article III.
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(Tenn. 2017) (recognizing that the “ecclesiastical abstention doctrine
predates the ministerial exception by almost a century” and concluding
Hosanna-Tabor “did not address” that doctrine).
But others think the Hosanna-Tabor footnote necessitates a
reexamination of the jurisdictional consequences of ecclesiastical autonomy.
See, e.g., Doe v. First Presbyterian Church U.S.A. of Tulsa, 421 P.3d 284, 290–
91 (Okla. 2017) (noting the church-autonomy doctrine “operates as an
affirmative defense” (quoting Hosanna-Tabor, 565 U.S. at 195 n.4)); St.
Joseph Catholic Orphan Soc’y v. Edwards, 449 S.W.3d 727, 737 (Ky. 2014)
(“[T]he ecclesiastical-abstention doctrine is an affirmative defense.”); Pfeil
v. St. Mathews Evangelical Lutheran Church of Unaltered Augsburg Confession
of Worthington, 877 N.W.2d 528, 534–35 (Minn. 2016) (reversing course on
previous holding and noting “Hosanna-Tabor leads us to conclude that the
ecclesiastical abstention doctrine is not a jurisdictional bar”).
Of course, it’s not our job to decide whether Watson remains binding.
It remains binding on us until the Supreme Court says otherwise. See, e.g.,
State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (noting “it is [the Supreme]
Court’s prerogative alone to overrule one of its precedents”). And that’s
reason enough to justify rehearing this case en banc. See Fed. R. App. P.
35(b)(1)(A) (listing as a ground for rehearing that “the panel decision
conflicts with a decision of the United States Supreme Court”).
Moreover, this case is rich with questions of exceptional importance.
See Fed. R. App. P. 35(a)(2). For example, ecclesiastical jurisdiction at one
time extended to certain torts, like defamation, that today seem purely
secular. See 10 Edw. 2, stat. 1 c. 4 (1316) (recognizing ecclesiastical
jurisdiction over “defamations”); cf. Fuller’s Case, 12 Co. Rep. at 44
(distinguishing between secular “slander” and ecclesiastical “Heresy,
Schism, and erroneous Opinions, &c.”). Does it extend to McRaney’s
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defamation claim? If so, does ecclesiastical autonomy require dismissal of it?
What do we make of the post-Hosanna-Tabor split of authority on the
jurisdictional consequences vel non of the ecclesiastical-autonomy doctrine?
Our refusal to grant rehearing means these questions must wait for another
day.
32