dissenting: Plaintiff Stephen E. Purdum sued Defendant Katherine C. Harcsar, his former wife, for defamation. The case has taken a detour into the legal ramifications of the Free Exercise Clause of the First Amendment, insulating religious beliefs and practices, because Harcsar made the allegedly libelous statement in a request to the Archdiocese of Kansas City in Kansas for an annulment of their marriage. The Archdiocese sought to intervene in tire Johnson County District Court proceedings and asked that the suit be dismissed. Without reaching the merits of tire defamation claim and before any discovery had been done, the district court ruled the Free Exercise Clause creates an absolute privilege or immunity for Harcsar s statement, borrowing one of the Archdiocese’s arguments. The district court erred in recognizing such a constitutional protection and dismissing Purdum’s suit.
The Archdiocese also urged the district court to dismiss the suit in keeping with the recognized constitutional principles of church autonomy that shield religious organizations, their officials, and their congregants from judicial review of disputes bound up with matters of faith, ecclesiastical doctrine, or the selection of spiritual leaders. The district court correctly declined to apply those principles in the manner the Archdiocese requested because the allegedly defamatoiy statement is secular in nature and Purdum does not challenge the Catholic Church’s authority to consider or grant the annulment.
*960That is how the case came to this court, presenting two substantive issues—the district court’s ill-conceived absolute privilege and the Archdiocese’s argument for broad application of church autonomy to bar Purdum’s suit simply because it has some general association with a religious proceeding. On those issues and the limited evidentiary record, this court ought to reverse and remand for further proceedings. Neither the Free Exercise Clause nor the Establishment Clause of the First Amendment to the United States Constitution supports an absolute privilege of the land the district court recognized. Similarly, the church autonomy doctrine has not been applied to bar litigation merely having a factual connection to a church or religion when a court may resolve the legal dispute without passing on the validity of ecclesiastical doctrine or beliefs or the selection of spiritual leaders. I, therefore, respectfully dissent from my colleagues’ views that the judgment dismissing tire suit ought to be affirmed.
Judge Green reaches out to affirm the district court based on consent—an issue that has never been briefed or argued by any of the parties on appeal or below. Judge Green posits that because Purdum consented to a sacramental marriage within the Catholic faith and, presumably, to its annulment, this suit cannot go forward. He suggests sorting out the scope of Purdum’s consent would im-permissibly entangle the courts in an issue of church doctrine, thereby violating the religion clauses. He also suggests consent would be a defense to a libel action under accepted principles of defamation law. Whatever the worth of those theories, neither Harcsar nor the Archdiocese has argued them to this point. And Purdum has never had a chance to respond to them. If this case were remanded, as it should be on the issues actually presented, the parties would be free to join and fully litigate consent in the district court. I decline to join in Judge Green’s rush to judgment.
Judge Bruns seems to combine consent with absolute privilege to conclude Purdum’s suit was properly dismissed and, thus, concurs in affirming the judgment below. His opinion, thus, rests on a yet-to-be-argued issue (consent) and a legally unfounded one (absolute privilege). I cannot join in that approach either.
*961In the balance of this dissent, I outline the factual and procedural history of the case. I then explain why the district court’s reliance on absolute privilege has no- constitutional foundation in religion clauses of the First Amendment and is, therefore, erroneous. Next, I address the argument tire Archdiocese actually has presented for dismissal based on the church autonomy doctrine and discuss how that position would substantially and impermissibly expand the doctrine. Finally, I elaborate on why the judgment of dismissal should not be affirmed based on the reasons my colleagues advance.
I do agree with Judge Bruns that the fundamental issue in this case—whether Harcsar has committed an actionable libel of Pur-dum—is a challenging one. The parties and the district court have never gotten to a host of intriguing questions of defamation law wholly unrelated to the religious character of the forum in which the statement was published. The circumstances of the publication, however, open up another set of exceptionally difficult questions dependent on the constitutional protections afforded religious beliefs and practices. Only a couple of those questions have been presented to us, and we cannot venture beyond them in fashioning our answers in this appeal. We mustn’t turn to defenses not yet presented and argued in our effort to meet the challenges of this case.
In sum, the case should be returned to the district court to travel the usual path of civil litigation to discovery, dispositive motions, and, if necessary, trial. On a fully developed factual record, Harcsar might prevail on consent, church autonomy, or some other defense whether on a renewed motion to dismiss, summaiy judgment, or at trial. Nothing I suggest would preclude those outcomes. But dismissing the case now cannot be legally justified.
Factual and Procedural History
The district court dismissed Purdum’s amended petition against Harcsar for lack of subject matter jurisdiction, as provided in K.S.A. 2012 Supp. 60-212(b)(1), based on its mistaken conclusion that an absolute privilege attached to Harcsar’s statement. The procedural posture of the case both in the district court and here is odd be*962cause of the presence of the Archdiocese—it appeared in the district court as an invited amicus curiae, but the district court denied its motion to intervene as a party. The oddity, however, does not really affect tire issues on appeal. And given the majority’s decision to affirm, the Archdiocese’s appeal of the intervention ruling is moot, so I have nothing further to say about it.
The district court dismissed tire case before any discovery had been done. The factual basis for its ruling was drawn, in part, from a motion the Archdiocese filed, with supporting affidavits, suggesting the lack of subject matter jurisdiction and, in part, from the amended petition. The parties did not dispute the material facts upon which the district couit relied in dismissing the case. Nor do they dispute those factual assertions for purposes of this appeal. I necessarily base my assessment of the legal issues on that limited record.
Purdum and Harcsar were married on April 25, 1993, in New Jersey. This case is captioned as Purdum v. Purdum, suggesting Harcsar took her ex-husband’s surname when they married. But the briefing uses tire surname Harcsar; all of us have done so too. Harcsar was and remains a devout Catholic. Purdum is Lutheran. Their marriage was performed according to the rituals of the Catholic Church and was considered sacramental. Purdum filed for divorce in Johnson County in late 2001, and the divorce was granted about 6 years later. Harcsar apparently wished to remarry in a Catholic ceremony. To do so, she needed to obtain an annulment of her marriage to Purdum from the Catholic Church. If granted, an annulment effectively invalidates a marriage so far as the Catholic Church is concerned.
In February 2009, Harcsar filed a petition for annulment with the Archdiocesan Tribunal for the Archdiocese of Kansas City in Kansas. As provided in the rules for the Tribunal, the Archdiocese sent a copy of the petition to Purdum and informed him that he could participate in the annulment proceeding if he so chose. Persons affiliated with the Archdiocese read the petition in connection with the annulment process. The petition and the process are to be confidential. Only church officials directly involved in that process should be privy to the information in the petition.
*963In his civil suit, Purdum alleged statements Harcsar made about him in the annulment petition to be false and defamatory. His amended petition described briefly the nature of the alleged defamation as an assertion that he had been “diagnosed as bipolar” and as otherwise referring to his mental health in some way. The suit contends Harcsar knew those statements to be false. The suit does not contend the statements were published or communicated outside of the annulment process. As described in the amended petition, the challenged statement concerned a purely secular matter and had nothing to do with Purdum’s piety or his religious beliefs or practices. Purdum sued only Harcsar on a theory of libel or defamation. The amended petition made no claim against the Archdiocese or any of its employees, agents, or members of the Tribunal. Nor did it seek to block or otherwise interfere with the annulment. Based on the representations of counsel at oral argument, I understand the annulment to have been granted.
At this juncture, the parties do not dispute the sufficiency of the amended petition in stating a claim for defamation. That is, Harcsar has yet to argue defenses grounded in defamation law. The district court did not rule on any defamation defenses, and nothing in appellate briefing touches on them. In her answer, Harcsar asserted consent as an affirmative defense. She has, thus, preserved the issue. But, as I indicated, the parties have not joined or argued consent in the district court or on appeal.
With the agreement of Purdum and Harcsar, the district court invited the Archdiocese to appear in tire case as amicus curiae because the dispute arose out of an annulment of a church sanctified marriage. The Archdiocese filed papers in that capacity urging dismissal of the suit based on privilege and church autonomy. The Archdiocese then moved to intervene as a party as a matter of right under K.S.A. 2012 Supp. 60-224(a)(2). As an exhibit to the request to intervene, the Archdiocese submitted a motion to dismiss Purdum’s suit for lack of subject matter jurisdiction focusing on the church autonomy doctrine.
The district court ultimately denied the Archdiocese’s request to intervene but ruled on the substantive arguments the Archdiocese had advanced for dismissing Purdum’s suit. In a memorandum *964decision filed April 11, 2011, the district court found the Archdiocese’s arguments for church autonomy did not warrant dismissal. But the district court ruled that the Free Exercise Clause of the First Amendment afforded Harcsar an absolute privilege or immunity from suit for communications made during “religious proceedings.” The district court cited only Cimijotti v. Paulsen, 230 F. Supp. 39, 41 (N.D. Iowa 1964), aff'd 340 F.2d 613 (8th Cir. 1965), in support of such a privilege and held it cut off subject matter jurisdiction for Purdum’s suit. The district court, therefore, dismissed the action.
Purdum timely filed a notice of appeal. On the same day, the Archdiocese filed its own notice of appeal challenging the district court’s denial of its motion to intervene and rejection of church autonomy as a basis for dismissing the suit. Harcsar joined in the appeal. The Archdiocese filed a lengthy brief with this court principally addressing what it perceived as the district court’s errors in rejecting church autonomy as an alternative ground for dismissal of the suit and in denying its motion to intervene. On appeal, Harc-sar filed a short brief joining in the Archdiocese’s arguments and advancing no independent arguments for affirming the dismissal.
Legal Analysis
1. Introduction: Defining the issues and setting the standards of review.
Apart from intervention, now moot given my colleagues’ decision to affirm dismissal, this appeal presents two substantive issues. First, did the district court correctly find an absolute privilege arising from the Free Exercise Clause? If not, has the Archdiocese articulated a sound basis for extending the church autonomy doctrine to Purdum’s suit? I address those issues before turning to a more detailed explanation of why I cannot join in the opinions my colleagues have advanced for affirming dismissal. I reiterate that the parties, to this point, have not briefed or argued Purdum’s purported consent either as a general defense to the libel claim or as a basis for applying tire church autonomy doctrine to dismiss the suit.
*965Because the material facts pertaining to the issues actually argued are undisputed, those issues present questions of law that this court reviews anew and without deference to the ruling below. Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011); Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d 954, 960, 186 P.3d 829 (Even what is commonly an issue of fact may be determined as a question of law when the material evidence is undisputed.), rev. denied 286 Kan. 1176 (2008).
2. The district court erred in finding the Free Exercise Clause conferred an absolute privilege against legal liability.
The district court dismissed Purdum’s suit on the theoiy that Harcsar’s communication to the Archdiocese in her petition for annulment enjoys an absolute privilege arising from the Free Exercise Clause of the First Amendment. That construction of the Free Exercise Clause cannot be reconciled with governing United States Supreme Court precedent. Before turning to that law, I note that the First Amendment applies here, even though the suit and the underlying dispute concern only private parties. The parties do not argue otherwise.
Both the Free Exercise and Establishment Clauses have been incorporated through the Due Process Clause of the Fourteenth Amendment and, therefore, limit state action. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); see Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (“[M]any of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.”). That is, the First Amendment, as incorporated, checks the actions of state and municipal governments impermissibly imperiling those liberties.
Although This suit rests on a common-law cause of action, rather than a legislative enactment, and involves a legal dispute between private parties, rather than an individual and a governmental entity or actor, there is sufficient state involvement to trigger those constitutional limitations. Use of the state courts to vindicate a com*966mon law or judicially recognized right, such as libel or contract, is enough. See New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (incorporated First Amendment protections of speech and press implicated in state court libel action because “the Alabama courts have applied a state rule of law [and] . . . [i]t matters not that that law has been applied in a civil action [between private parties] and that it is common law only”); Shelley v. Kraemer, 334 U.S. 1, 15, 68 S. Ct. 836, 92 L. Ed. 1161 (1948) (“[J]udicial action is to be regarded as action on the State for purposes of the Fourteenth Amendment” so a suit between private parties to enforce a racially restrictive covenant in a deed triggers rights secured through that amendment.); Bollard v. California Province of Soc. of Jesus, 196 F.3d 940, 950 (9th Cir. 1999) (state law claims, including breach of contract, brought by novice in Jesuit order against his superiors precluded by Free Exercise Clause); Lewis p. Seventh Day Adventists Lake Region Conf, 978 F.2d 940, 942 (6th Cir. 1992) (“[C]ivil court jurisdiction over a ministerial employment dispute was impermissible because such state intervention would excessively inhibit religious liberty,” contrary to the Free Exercise Clause.); Natal v. Christian and Missionary Alliance, 878 F.2d 1575, 1576-77 (1st Cir. 1989) (court affirms dismissal of cleilc’s wrongful termination suit because religion clauses of the First Amendment preclude intrusion upon matters of church canon and leadership). Accordingly, the Archdiocese may premise arguments on the religion clauses to the extent they substantively affect this legal dispute, since the requisite state action to invoke them at all exists.
The Free Exercise Clause substantially limits government action that discriminates based on religious tenets or “regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). Thus, “a law targeting religious beliefs as such is never permissible.” 508 U.S. at 533. In other words, the government may not prohibit persons from holding particular religious beliefs, compel affirmation of prescribed religious beliefs, punish religious doctrine as false, or takes sides in disputes over religious authority or dogma. Emplo*967yment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But the Free Exercise Clause does not negate the enforcement “of a neutral, generally applicable law to religiously motivated action.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 159 n.8, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002); Smith, 494 U.S. at 879. The Court’s “decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that tire law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” 494 U.S. at 879. A neutral and generally applicable law will be enforced if it is rationally related to a governmental purpose and incidentally impairs a religious practice. See 494 U.S. at 878 (“[I]f prohibiting the exercise of religion is not tire object of. . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”); 494 U.S. at 886 n.3 (no compelling governmental interest required to support law); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255 n.21 (11th Cir. 2012) (rational basis sufficient to deflect Free Exercise challenge to neutral, generally applicable law); Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210-12 (2d Cir. 2012) (recognizing and applying those principles, including rational basis review); Brown v. City of Pittsburgh, 586 F.3d 263, 284 (3d Cir. 2009) (recognizing rational basis review).
A law is not considered neutral “if [its] object is to infringe upon or restrict practices because of their religious motivation.” Church of the Lukumi Babalu Aye, 508 U.S. at 533. A law that purposefully inhibits religious practices may still be enforced if it furthers a compelling government interest and is “narrowly tailored” to promoting that interest. Church of the Lukumi Babalu Aye, 508 U.S. at 533.
In the United States Supreme Court’s view, the Free Exercise Clause permits enforcement of neutral laws limiting or prohibiting particular activities even when those activities have been undertaken for religious reasons, thereby undercutting the argument for an absolute privilege grounded in the Clause. The sweeping pro*968tection of absolute privilege necessarily conflicts with the application of neutral laws to religious activity in any fashion. If those laws may be applied, even in some muted way, any residual protection for the affected religious activity cannot be absolute.
Purdum seeks to enforce a common-law cause of action remedying libel or defamation. For purposes of the Free Exercise Clause, the cause of action must be considered neutral and generally applicable. Arguing otherwise would be futile. The common law of defamation does not somehow treat allegedly actionable statements made as part of a religious practice or church sanctioned activity less favorably than other statements, as by diminishing the plaintiff s burden of proof or enhancing recoverable damages. See Black v. Snyder, 471 N.W.2d 715, 719 (Minn. App. 1991) (noting Minnesota’s common law of defamation to be “content neutral” with respect to religion). Defamation law serves valid public policy interests in providing a person a socially responsible vehicle to vindicate his or her reputation against a falsely besmirching statement. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341-42, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (acknowledging the “legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted upon them by defamatory falsehood” and recognizing that interest must be balanced against “the need for a vigorous and uninhibited press”); Linn v. Plant Guard Workers, 383 U.S. 53, 63-64 & n.6, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966) (noting both the historical importance of libel law and the utility of the cause of action in deterring violent self-help remedies); Gobin v. Globe Publishing Co., 232 Kan. 1, 5-6, 649 P.2d 1239 (1982). Nothing inherent in defamation law would prohibit the Catholic Church from granting annulments. Purdum has not sought to keep the Archdiocese from acting on Harcsar’s request. He did not sue the Catholic Church and could not obtain that sort of injunctive relief (or any relief for that matter) against it. Indeed, Harcsar has been granted an annulment. The burden on tire annulment process, if any, appears incidental.
As I have noted, the district court cited and relied solely on a 50-year-old decision from a federal court in Iowa in finding an absolute privilege for Harcsar’s allegedly defamatory statement. *969Cimijotti, 230 F. Supp. at 41. The Cimijotti decision described an absolute privilege emanating from the Free Exercise Clause in two paragraphs of dicta and, in turn, cited no authority for its conclusion. Conspicuously missing in this case, too, is any supporting authority for the existence of that privilege.
Even standing alone, the Cimijotti decision, properly analyzed, provides only pallid support for an absolute privilege grounded in the Free Exercise Clause. In that case, Cimijotti sued his former wife and two other individuals for purportedly defamatory statements they made to priests- or other officials within the Catholic Church to secure a church approved divorce. The case, then, is factually similar to this one. The federal judge found Cimijotti could not successfully sue his former wife because she acted while they were still married and Iowa recognized the doctrine of inter-spousal immunity barring tort actions between husband and wife. 230 F. Supp. at 41, 43. The judge found for the other two defendants on a statute of limitations defense. 230 F. Supp. at 42, 44.
As a backstop, the judge also opined that “a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion.” 230 F. Supp. at 41. The decision cited no authority for that broad proposition. After mentioning the Free Exercise Clause without further elaboration, the judge concluded that “the statements made by the defendants under the circumstances of this case are absolutely privileged against an action for defamation.” 230 F. Supp. at 42. Again, the opinion cited no authority. The two-paragraph discussion of constitutional doctrine in Cimijotti amounts to dicta. The decision clearly stated and relied on other grounds as wholly sufficient for dismissal. The judge’s extraneous observation of an absolute privilege in the Free Exercise Clause appears to be a constitutional mirage, especially given the utter absence of supporting precedent or a fully developed rationale incorporating arguably analogous doctrine. Even as persuasive authority, Cimijotti underwhelms.
Both the judge in Cimijotti and the district court in this case allude to the need for confidentiality between a congregant and a cleric as a basis for recognizing a constitutionally based privilege *970against suit. The district court here suggested: “As held by the Cimijotti court, an individual’s right to engage in the free exercise of his or her religion is protected by the First Amendment; this is especially true when a penitent communicates with his or her minister.” But that reasoning confuses constitutional protection of religious practices, which is not absolute, with tire near universal evidentiary privilege prohibiting the disclosure of clergy-penitent communications. The evidentiary privilege rests on statutory enactment or common-law recognition rather than constitutional right. See Varner v. Stovall, 500 F.3d 491, 494-99 (6th Cir. 2007) (discussing origins and development of penitent privilege without suggesting a constitutional basis). That privilege serves a purpose different from the absolute privilege conjured in Cimijotti. The evidentiary privilege is not an immunity against suit. It permits a penitent or a cleric on the penitent’s behalf to refuse to disclose protected communications made to discharge a moral obligation or to seek divine forgiveness for past conduct, K.S.A. 60-429. The evidentiary privilege extends to parties and witnesses to advance public policy objectives in maintaining confidentiality for communications essential to a relationship society deems worthy of protection. The same policies undergird evidentiary privileges for marital communications, physician-patient consultations, and attorney-client discussions, among others. The success of those relationships depends, at least in part, on candid communication between the participants, hence the protection against disclosing the content of that communication in a judicial proceeding. But the absolute privilege against suit suggested in Cimijotti fails of that purpose—it would shield only communications of defendants. Neither plaintiffs nor nonparty witnesses could benefit from a bar against suits, since they are not being sued. That substantial un-derinclusiveness offers another reason to suspect the absolute privilege of Cimijotti of being unsound constitutional doctrine.[1]
*971The Archdiocese devotes little attention in its appellate brief to the district court’s absolute privilege rationale. Apart from Cimi-jotti, the Archdiocese points to one other case mentioning an absolute privilege against suit purportedly founded on the Free Exercise Clause,- a mention that also amounted to dicta. Stepek v. Doe, 392 Ill. App. 3d 739, 752-53, 910 N.E.2d 655 (2009). The Stepek panel cited Cimijotti for the proposition and appears to have been the only appellate court to do so. 392 Ill. App. 3d at 752-53. Relying on Cimijotti alone, the Stepek decision offered no sound constitutional foundation for the privilege and used it as a secondary rationale for tire outcome in that case. In Stepek, the court turned aside a defamation suit a Catholic priest filed against two brothers who had lodged charges of sexual abuse against him through internal church disciplinary processes, leading to an investigation and his punishment. The court dismissed the suit in reliance on church autonomy principles extending constitutional protection to decisions of religious organizations bound up with the selection and retention of spiritual leaders. 392 Ill. App. 3d at 746-47, 753, 756; see Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ___, 132 S. Ct. 694, 706, 181 L. Ed. 2d 650 (2012) (Allowing the government to “imposfe] an unwanted minister... infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”). The court found the priest’s suit against his accusers to be an impermissible collateral attack on the Church’s decision to discipline him. In doing so, the court repeatedly emphasized the singular importance of the church-cleric relationship and constitutional restraints on civil courts interfering even indirectly with institutional decisions regarding selection or *972dismissal of spiritual leaders. Stepek, 392 Ill. App. 3d at 750 (defamation claim rests on statement made in internal disciplinary proceeding “touching the core of,the church-minister relationship”); at 751. (basis of priest’s defamation claim tied to his “fitness for ministry”). The court gives no indication that its rationale ought to be extended beyond those circumstances.
In Smith, decided nearly 25 years after Cimijotti, the United States Supreme Court doesn’t so much as mention a Free Exercise Clause privilege—an omission that would be curious given the issue presented and the reasoning of the decision. The Smith decision pointed to longstanding Free Exercise Clause jurisprudence recognizing: “ 'Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general, law not aimed at the promotion or restriction of religious beliefs.’ ” Smith, 494 U.S. at 879 (quoting Minersville District v. Gobitis, 310 U.S. 586, 594, 60 S. Ct. 1010, 84 L. Ed. 1375 [1940]). An absolute privilege of the sort described in Cimijotti and applied here would considerably curtail that rule, freeing individuals to disobey an array of general laws, including the common law of defamation, if they did so in the course of a religious ritual or practice. I would expect the Smith Court to at least acknowledge an absolute privilege and to explain, at least briefly, why it had no bearing there. I also would suppose some reference to such a privilege ought to turn up elsewhere in the Court’s religion clauses precedent. But the panel has not been presented with that reference. Nor apparently have any of us independently discovered it.
In my view, the district court erred in holding the Free Exercise Clause enables an absolute.privilege precluding Furdum’s action against Harcsar. Judge- Green rejects an absolute-privilege as well. But that determination alone- doesn’t require remand because the Archdiocese has argued for dismissal of Eurdum’s suit based on the church autonomy doctrine. As an alternative basis for the out- ■ come below that the parties have briefed; the argument should be addressed. I next turn to it. [2]
*9733. Neither the church autonomy doctrine nor the related undue entanglement doctrine affords a basis for dismissing this defamation action.
The Archdiocese advances the church autonomy doctrine and the allied undue entanglement doctrine as rules requiring dismissal of Purdum’s defamation suit on its face. Those principles reflect recognized constitutional limits on governmental intrusion into theological philosophies apd internal operations of religious organizations inextricably bound up with their teachings and their choices of who should impart those spiritual messages. They have roots in both religion clauses of tire First Amendment in that governmental involvement, especially through the judicial process, in deciding issues entwined with a religious group’s views of faith, divinity, redemption, and the like risks fostering establishment of a seemingly favored dogma or impairing the free exercise of disfavored dogma. But the Archdiocese has not sought to bolster its legal position based on Purdum’s consent to a sacramental marriage within the Catholic Church. The district court found Pur-dum’s libel claim neither contravened church autonomy nor caused an undue entanglement with religious practice as the Archdiocese *974outlined those constitutional protections. So the district court relied on absolute privilege to dismiss the suit. On appeal, the Archdiocese hews to the same position, forgoing any defense based on consent. In response, Purdum primarily asserts that the Archdiocese has failed to show the applicability of church autonomy and undue entanglement to the defamation claim he has brought against Harcsar, especially given the substantive content of her statement and the absence of any direct impediment to the annulment process.
a. Scope of doctrines
The Establishment Clause and tire Free Exercise Clause together construct a sphere of protection for religious organizations designed to keep government actors at some measurable distance to avoid affecting institutional decisions about what to believe and who may best inculcate those beliefs. Hosanna-Taylor, 132 S. Ct. at 704 (The Court’s precedent “ ‘radiates ... a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ ” [quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 97 L. Ed. 120 (1952)]); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976) (The First and Fourteenth Amendments preclude civil courts from reviewing and altering decision of ecclesiastic tribunals as to “religious issues of doctrine or polity.”); Church of God in Christ, Inc. v. Board of Trustees, 47 Kan. App. 2d 674, 682-83, 280 P.3d 795 (2012). The constitutional protection for religious self-determination is often referred to as the church autonomy doctrine or the ecclesiastical abstention doctrine. Rweyemamu v. Cote, 520 F.3d 198, 205 (2d Cir. 2008); Bryce v. Episcopal Church in Diocese of Colorado, 289 F.3d 648, 655 (10th Cir. 2002) (“The church autonomy doctrine prohibits civil court review of internal church disputes involving matters of faith, doctrine, church governance, and polity.”); Redwing v. Catholic Bishop for Memphis, 363 S.W.3d 436, 443 & n.3 (Tenn. 2012) *975(noting both names and suggesting the origin of the phrase “church autonomy doctrine”).
The doctrine traces back to Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed. 666 (1871), and received an outline of its modern shape in Kedroff, 344 U.S. at 113-16 (quoting and paraphrasing Watson at length). Nearly 100 years ago, the Kansas Supreme Court, in a brief opinion, cited Watson to bow out of an intrachurch dispute over who should lead the congregation and who should be eligible to participate in selecting those leaders because tire relevant “matters are ecclesiastical in character and are to be determined by the authorities of the church according to its laws and usages.” King v. Smith, 106 Kan. 624, 627, 189 P. 147 (1920). We have no need here to elaborate on that history. The contours of the modern constitutional protection for religious beliefs and church governance have been substantially defined since Kedroff; that authority guides the resolution of the issue presented here.[3]
This court recently restated the barrier in the religion clauses as insulating from government interference “ ‘ “quintessentially religious controversies” ’ ” addressing theological and doctrinal views. Church of God in Christ, 47 Kan. App. 2d at 683 (quoting Hosanna-Tabor, 132 S. Ct. at 705, quoting Milivojevich, 426 U.S. at 720). That statement reflects a common characterization: The religion clauses keep civil courts from resolving church disputes entailing “consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.” Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979); see Petruska v. Gannon University, 462 F.3d 294, 306-07 (3d Cir. 2006); Bryce, *976289 F.3d at 655 (“[The] church autonomy doctrine prohibits civil court review of internal church disputes involving matters of faith, doctrine, church governance, and polity.”).
The sphere, then, affords religious groups breathing space for their theological views. Bryce, 289 F.3d at 655. As a result, those institutions enjoy greater freedom from governmental regulation and intrusion than do many secular organizations in at least some respects. Hosanna-Taylor, 132 S. Ct. at 705-06 (holding religion clauses include a “ministerial exception” allowing religious organizations and individual congregations to choose their own spiritual leaders and exempting those groups from federal antidiscrimination statutes in hiring and retaining those leaders); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979); Schleicher v. Salvation Anny, 518 F.3d 472, 474-75 (7th Cir. 2008).
Courts have recognized an allied concept of undue entanglement to limit government intrusion, through judicial proceedings and otherwise, into the internal affairs of religious organizations. Colorado Christian University v. Weaver, 534 F.3d 1245, 1261 (10th Cir. 2008) (“[T]he doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices!.]”); Rweyemamu, 520 F.3d at 208 (“[S]ome claims may inexorably entangle [tire courts] in doctrinal disputes.”). The anti-entanglement principle arises from the Establishment Clause, limiting government action that fosters or inhibits religious beliefs or entities. Weaver, 534 F.3d at 1261; Klagsbrun v. Va’ad Harabonim of Greater Monsey, 53 F. Supp. 2d 732, 737 (D. N.J. 1999) (The Establishment Clause precludes “excessive entanglement with religion” and, thus, “prohibits courts from determining underlying questions of religious doctrine and practice.”). In Catholic Bishop, 440 U.S. at 501-02, the United States Supreme Court held that the National Labor Relations Board could not exercise authority over a union of lay teachers in a religious school because inquiiy into and resolution of various labor-management issues almost certainly would intrude upon church doctrine affecting policies and practices of the school. The Court noted, for example, if tire clergy administering tire school suggested *977their decisions challenged as potential unfair labor practices were “mandated by their . . . creed,” the Board would become imper-missibly entangled in evaluating religious tenets. 440 U.S. at 502; see Weaver, 534 F.3d at 1261 (citing Catholic Bishop as illustrative of the undue entanglement doctrine).
There may be some differences in scope and application between the church autonomy doctrine and the undue entanglement doctrine. But whatever those variations, they do not appear to affect the result in this case. The Archdiocese doesn’t suggest a disposition dependent upon one doctrine over the other. The Archdiocese contends those general principles of church autonomy and undue entanglement warrant dismissal of Purdum’s libel action against Harcsar.
b. Treatment of neutral laws of general applicability
As I indicated earlier, the United States Supreme Court’s decision in Smith, 494 U.S. at 878-79, bears heavily on this case. The Court held that a neutral law of general applicability could be enforced against a person engaging in the prohibited conduct as part of a religious ritual or practice. 494 U.S. at 879. In that case, two individuals were denied unemployment benefits after they were fired for using peyote during a bona fide religious ceremony. Peyote was (and is) a controlled substance, and its possession violated generally applicable criminal statutes. The individuals were terminated for engaging in unlawful conduct and, therefore, became ineligible for unemployment benefits. They challenged the determination and claimed constitutional protection under the Free Exercise Clause because they used the peyote for religious purposes. The Court rejected that argument, drawing a distinction between religious beliefs and dogma, on the one hand, and religious practices contravening general laws, on the other. 494 U.S. at 878-79 (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to regulate.”). That remains the proper interpretation of the Free Exercise Clause. Hosanna-Tabor, 132 S. Ct. at 706 (citing Smith, 494 U.S. at 879).[4]
*978The Archdiocese mentions Smith only in passing and then simply to suggest its holding does not negate the church autonomy doctrine. Although that proposition is undeniably true, it glosses over the more basic question of Smith’s relevance to the issue here in prefei-ence to the church autonomy doctrine. The law of defamation is neutral as to religious belief or doctrine and is generally applicable. The law neither makes the publication of certain beliefs actionable nor imposes different standards for statements rooted in religious doctrine. To that extent, Smith governs in the sense defamation actions cannot be categorically dismissed as contraiy to the church autonomy doctrine simply because publication of the offending statement occurs in some religious context or proceeding. By the same token, however, a defamation claim, depending on the circumstances and the statement alleged to be actionable, would not automatically be impervious to the church autonomy doctrine. See Klagsbrun, 53 F. Supp. 2d at 739; Farley v. Wisconsin Evangelical Lutheran Synod, 821 F. Supp. 1286, 1289-90 & n.4 (D. Minn. 1993). As with much else, the facts of a given case direct how general legal principles, such as the law of defamation or the church autonomy doctrine, should be applied and reconciled.
c. Archdiocese’s authority discussed
The Archdiocese’s argument on appeal is replete with cases recognizing church autonomy and undue entanglement principles. A number of them apply tiróse principles to dismiss defamation claims. But those cases do not replicate or even approximate the factual circumstances of this one. Based on that authority, I have been left with the clear impression that a ruling for Harcsar and *979the Archdiocese upholding the dismissal of Purdum’s suit would mark a substantial expansion of the religious clauses sphere.
I do not here engage a case-by-case review of that voluminous authority, for the exegesis would needlessly extend this opinion. I have, however, looked at all of those cases, and I note several as illustrative of the inapplicability of the precedent the Archdiocese has relied upon.
In a number of the cases, a cleric dismissed from a position with a church sued the organization or the individual decision-makers for defamation or wrongful termination. The courts dismissed those actions based on church autonomy because the decisions were dependent on the constitutionally protected selection of religious leaders'—-the minister exception—and often involved internal divisions over the proper interpretation of ecclesiastical tenets. See, e.g., Milivojevich, 426 U.S. at 717-18; Knuth v. Lutheran Church Missouri Synod, 643 F. Supp. 444, 448-49 (D. Kan. 1986); Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505, 510-11, 773 N.E.2d 929 (2002). In other cases, congregants sued over what they considered unfair or improper treatment by their religious leaders or organizations. Again, the courts dismissed the suits because the claims required examination of religious doctrine upon which the challenged treatment rested. See, e.g., Klagsbrun v. Va’ad Harabonim of Greater Monsey, 53 F. Supp. 2d 732 (D. N.J. 1999); O’Connor v. Diocese of Honolulu, 77 Hawaii 383, 393, 885 P.2d 361 (1994) (The court relies on the church autonomy doctrine to dismiss a parishioner’s suit challenging his excommunication over statements he made as the publisher of a newspaper because die claims “can be adjudged only in accordance with standards of church doctrine, church law, or church governance,” so they “cannot be adjudicated by a civil court without abridging the free exercise clauses of the state and federal constitutions.”); Hadnot v. Shaw, 826 P.2d 978, 987-88 (Okla. 1992). Those cases legally and factually stand apart from Purdum’s claim here. Harcsar’s alleged defamation does not depend upon religious doctrine or practice for its injurious character.
In Klagsbrun, a federal district court dismissed tire plaintiff s defamation action against the Va’ad, a group of Orthodox rabbis *980establishing common practices for a number of synagogues, because the claim would unduly entangle religious doctrine with judicial process. Klagsbrun disobeyed a rabbinical order to grant his wife a religious divorce and claimed, apparently without proof, the couple had already been divorced in conformity with Orthodox Jewish tenets. Klagsbrun had remarried. The Va’ad circulated a notice to the synagogues within its jurisdiction, including the one Klagsbrun attended, outlining the dispute and declaring Klagsbrun was “not entitled to any honors or participation in synagogue services and that all possible social sanctions should be place[d] against him.” Klagsbrun, 53 F. Supp. 2d at 736. The court concluded that it would be pulled into a constitutionally impermissible assessment of religious tenet and practice to judge whether the members of the Va’ad had defamed Klagsbrun. 53 F. Supp. 2d at 739.
In Hadnot, the court affirmed the dismissal of a congregant’s claims against her church alleging both the reason for her excommunication and a letter sent to her stating the reason to be defamatory and otherwise tortious. The court found that “the First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline.” 826 P.2d at 987. But the court also indicated that the constitutional protection would not extend to communication outside the church or communication after “implementation” of the severance of the church-congregant relationship. 826 P.2d at 985-86 (court reviews alleged publication of the reason outside the church under traditional tort principles and finds plaintiff failed to establish a material factual dispute to preclude summary judgment); 826 P.2d at 988-89 (defamation law governs publication made after excommunication or voluntary withdrawal from church community has been effected).
Here, Purdum was not a member of the Catholic Church. The annulment did not affect his standing within the Catholic Church. In his suit, he does not seek to change in any way his relationship with the Catholic Church. Nor does he contend the Archdiocese or any of -its officials libeled or otherwise caused him any legal injuiy.
*981In a pair of cases, the courts refused to allow clerics investigated for violating church rules to bring defamation actions against those who accused them in tire internal disciplinary process. Stepek, 392 Ill. App. 3d at 752; Hiles, 437 Mass. at 506-07. In Hiles, an Episcopal priest brought an array of claims against the diocese, the congregant initiating intrachurch charges against him for carrying on an adulterous relationship with her, and the church leaders who then pursued those charges. The Massachusetts Supreme Court upheld dismissal of the claims against the diocese and the church leadership on tire grounds that internal discipline of clergy entailed quintessentially protected activity under the religion clauses. 437 Mass. at 510-11. The court affirmed the dismissal of the defamation claim against the priest’s accuser because the charge was disclosed only to a church official, thereby triggering the organization’s internal disciplinary process. The publication of the complaint, therefore, was an integral part of that process and shared the constitutional protection of that process. 437 Mass. at 512-13. As the court recognized: “Hiles’ defamation claim against [congregant] Hastie touches the core of tire church-minister relationship.” 437 Mass. at 513. And the church “has a singular interest in protecting its faithful from clergy who will take advantage of them.” 437 Mass. at 513. The court also found that under those circumstances, a civil court should refrain from judging the credibility of the accusation—a necessary component of a defamation claim—-in deference to tire church’s investigation and conclusions as part of its disciplinary process. 437 Mass. at 513 (“The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in a civil court.”). The court suggested that the constitutional protection belonged, at least in part, to the individual initiating the internal accusation as an exercise of religious belief. 437 Mass. at 513. But the court also recognized that absolute protection under the religion clauses would not necessarily extend to defamation actions unconnected to the church-minister relationship. 437 Mass. at 514.
Relying heavily on Hiles, the Illinois Court of Appeals took essentially the same position in Stepek, 392 Ill. App. 3d at 752-53. In *982Stepek, as I have explained, a Catholic priest sued two brothers for defamation and intentional infliction of emotional distress because they had lodged charges with the Archdiocese of Chicago that he had sexually abused them years earlier and because the Archdiocese then removed him from all ministry duties after investigating the charges. The brothers joined the Catholic Bishop as a third-party defendant. The brothers and the Catholic Bishop moved to dismiss the action asserting the constitutional protection of church autonomy under the religion clauses. Adopting the rationale of Hi-les, the court found the church process for clergy discipline to be constitutionally off limits in civil suits and an accused in such a proceeding could not maintain a suit that would “interfere[e] with the Church’s ability to consider the veracity of the . . . defendants’ charges through that process.” 392 Ill. App. 3d at 752-53.
The rulings in Hiles and Stepek ultimately rest on the well-recognized autonomy religious organizations enjoy in selecting and regulating their spiritual leaders. The courts have recognized an especially robust protection from judicial intrusion for those decisions and the processes used in making those decisions. Purdum’s suit has nothing to do with those issues. And those cases fail as precedent supporting church autonomy here. As I have discussed, the Stepek court also cited Cimijotti’s unique recognition of absolute privilege for statements a congregant makes in any church proceeding as supporting dismissal. But Cimijotti had nothing to do with clergy discipline—the plain basis for the rule laid down in Hiles and adopted in Stepek.
Nor does Cimijotti really square up with the secondaiy rationale advanced in both cases that a cleric accused of religious misconduct ought not use a civil suit to collaterally undermine factual determinations of the church’s investigatory body. Stepek, 392 Ill. App. 3d at 752; Hiles, 437 Mass. at 513. That rationale does not rest on some privilege or immunity from suit extended to the statements or accusations themselves. Rather, it reflects a form of judicial abstention under which one tribunal should not interfere with another tribunal having a superior claim to jurisdiction over a dispute. See Lance v. Dennis, 546 U.S. 459, 460, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006) (Rooker-Feldman doctrine precludes lower *983federal courts from exercising jurisdiction over suits effectively challenging existing state court judgments); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15-16 & n.8, 107 S. Ct. 971, 94 L. Ed. 2d 10 (1987) (Analogizing to abstention, the Court holds drat as a matter of comity a civil action should be dismissed or stayed until a tribal court determines its jurisdiction to hear the dispute because, in part, doing otherwise would “impair [the tribe court’s] authority over reservation affairs.”); Younger v. Harris, 401 U.S. 37, 43-45, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (federal courts refrain from interfering with criminal prosecutions in state courts); AEP Energy Services Gas Holding v. Bank of America, N.A., 626 F.3d 699 (2d Cir. 2010) (first court to obtain jurisdiction over the parties and the disputed issues takes priority over different court later acquiring jurisdiction for the same parties and issues); In re AutoNation, Inc., 228 S.W.3d 663, 670 (Tex. 2007) (recognizing and applying first-to-obtain-jurisdiction rule); see also KPMG LLP v. Cocchi, 565 U.S. _, 132 S. Ct. 23, 25-26, 181 L. Ed. 2d 323 (2011) (State and federal courts are required to honor valid agreements to decide disputes in arbitral forums, thus favoring an extrajudicial mechanism, although the stated basis for doing so typically lies in enforcing the parties’ contracts rather than in exercising jurisprudential abstention). The abstention outlined in Hiles and Stepek originates in tire religion clauses and, if accepted, would command enforcement as a matter of constitutional law, whereas courts commonly weigh abstention as a preferred, though flexible, jurisprudential rule. Both the Hiles and Stepek courts buttressed their decisions with a contractual or consensual theory, finding the priests effectively agreed to participate in and abide by tire intrachurch disciplinary processes in conjunction with performing their ministerial duties. Stepek, 392 Ill. App. 3d at 752; Hiles, 437 Mass. at 513. The courts viewed the priests’ actions in filing suits effectively challenging the veracity of accusations as inimical to those agreements. In this case, the parties have not argued consent or abstention as considerations supporting dismissal. The Archdiocese has not suggested Harcsar’s annulment would be denied or revoked if the statements made in her petition to the Catholic Church were adjudged false in Purdum’s civil suit—a position *984that conceivably might support church autonomy on abstention grounds.
The Archdiocese relies heavily on Bryce, 289 F.3d at 651, in which the Tenth Circuit applied the church autonomy doctrine to affirm the dismissal of a sexual harassment suit Bryce brought against the Episcopal Church employing her as a youth minister and against various leaders and members of the congregation. Bryce, a lesbian, participated in a civil commitment ceremony with her partner, an ordained minister in another denomination. Bryce’s partner also was a named plaintiff in the suit. After the commitment ceremony, several church leaders met with Bryce to inform her that her employment would be terminated because her familial relationship conflicted with Episcopal doctrine recognizing marriage as a union between a man and a woman. They also suggested homosexuality generally was a divisive religious issue within the Episcopal faith. One of the church’s ministers circulated a letter to the leadership explaining what he perceived to be the rift between Bryce’s personal life and the denomination’s religious teachings. The letter also included what many people today would characterize as false stereotypes about gays and lesbians, particularly with respect to their interactions with children. The church, with Bryce’s consent, scheduled four meetings that members of the congregation could attend to discuss Bryce’s employment, Episcopal doctrine about marriage and homosexuality, and related matters. At the start of each meeting, Bryce and church leaders explained their respective positions, and a trained facilitator moderated the discussions. The court opinion characterized the meetings as both generally supportive of Biyce and focused on issues of church doctrine. But the minister who authored the letter repeated much of what he wrote, and some members of tire congregation voiced comments the court suggested could be viewed as offensive and, in some instances, demonstrably incorrect. 289 F.3d at 653, 657-58.
In affirming the dismissal of Bryce’s suit, the Tenth Circuit relied exclusively on the church autonomy doctrine and never addressed the merits of the sexual harassment claim. 289 F.3d at 658-59. In reaching that conclusion, the court also traced the history of the *985doctrine, a discussion we have cited. 289 F.3d at 655-57. Given Episcopal doctrine on homosexuality and marriage, the court found tire matter of Bryce’s employment to be inseparable from “ecclesiastical” considerations of faith, church organization, and religious “rule, custom, [and] law.” 289 F.3d at 658. As such, the constitutional protections reflected in the church autonomy doctrine precluded Bryce’s claim. The court found her partner’s claim for sexual harassment similarly barred because it entailed the same religious issues and would necessarily contravene church autonomy by inhibiting “the right of the church to engage freely in ecclesiastical discussions with members and non-members.” 289 F.3d at 658. Even though Bryce’s partner was neither a member nor an employee of the church, the effect of the suit was tire same. In addition, the court noted that she participated with Biyce in the congregant meetings, thereby placing herself within the church dispute. 289 F.3d at 658.[5]
As the Tenth Circuit framed the facts and issues in Bryce, the church controversy and the resulting litigation necessarily hinged on religious doctrine. Biyce’s termination and the expressions she and her partner found harassing largely derived from how congregants and leaders of the particular church chose to interpret and apply denominational pronouncements about marriage as a Christian covenant. That civil suit inevitably would implicate die “correctness” of those distinctly religious beliefs. As I discuss in the next section, Purdum’s defamation action depends upon no comparable melding of Catholic Church teachings and the factual elements of his claim.
*986d. Purdum s suit is not barred by church autonomy or undue entanglement
Having surveyed church autonomy principles, including the minister exception and the related undue entanglement doctrine, and having reviewed the legal authority and argument the Archdiocese has presented on appeal, I fail to see an articulated basis in those constitutional protections requiring dismissal of Purdum’s defamation action against Harcsar. The Free Exercise Clause extends particularly robust protection to church decisions regarding the selection and intradenominational regulation of religious leaders. The minister exception does not apply here. And the Archdiocese makes no overt argument that it does. But much of the authority on which the Archdiocese relies entails decision-making regarding retention or discipline of clergy. The especially deferential treatment afforded religious organizations in that sphere doesn’t translate to the circumstances of this case either logically or legally. Nothing about this suit challenges or implicates the leadership of the Archdiocese or the Catholic Church. Purdum has not sued the Catholic Church, its subsidiary organizational entities, or any of its clergy—the only defendant is Harcsar. Nor does the suit amount to a collateral attack on a church decision to punish or dismiss a cleric.
Even under the broader application of church autonomy to bar suits caught up in religious doctrine or ecclesiastical issues, I fail to see a basis for dismissal. Purdum’s action neither challenges the authority of the Archdiocese to grant Harcsar an annulment nor otherwise seeks to inhibit or prevent that process from going forward. The suit requests no equitable relief that would block an annulment of Purdum’s marriage to Harcsar. The Archdiocese does not argue that die filing of the suit or a judgment in Purdum’s favor would in any way diminish Harcsar’s ability to secure or retain an annulment. To the contrary, in outlining reasons for intervention, the Archdiocese submitted its legal interests deviate from Harcsar’s because it “is less interested in the truth or publication of [her] statements.”
Purdum alleges that the petition for annulment contains a factual representation about him that is false and defamatory. The rep*987resentation has nothing to do with his religious beliefs or the Catholic Church’s ecclesiastical doctrine or views. He does not challenge or impugn teachings of the Catholic Church. Whether the statement is true or false does not depend upon church canon or dogma. Its purportedly defamatory character is similarly distinct from any set of religious values. A court or a jury would not be drawn into a theological debate or an evaluation of annulments or other Catholic ritual in assessing the statement’s falsity or its defamatory nature. In other words, the forum of publication—-as part of a request to the Archdiocese for an annulment—is immaterial to the content of the statement that Purdum says makes it libelous. The statement would have been no more or less false and defamatory if Harcsar never sought an annulment and, instead, had disseminated it to Purdum’s work supervisor. In his suit, Purdum requests monetary damages against Harcsar as his only relief. The Catholic Church faces no legal liability.
So the church autonomy doctrine simply does not come into play as Purdum has cast his legal action and as the Archdiocese has opposed it to this point. Rather, as I have suggested, Smith, 494 U.S. 872, provides the governing constitutional authority in that Harcsar may have made the contested statement as part of a religious rite or ritual, just as Smith used peyote, but the laws making their respective behaviors actionable are of general application and theologically neutral. Just as Smith did not get a religion-clauses free pass because his otherwise allegedly unlawful activity was undertaken with a religious purpose, Harcsar cannot avoid answering Purdum’s action.
The undue entanglement doctrine fails as a defense for much the same reason church autonomy doesn’t require dismissal on this limited record. The protections against entanglement serve fundamentally the same purpose by preventing excessive government intrusion into religious belief and practice. Given the contours of Purdum’s suit, the defamation claim does not intrude into, challenge, or require an assessment of Catholic tenets generally or annulments specifically.
The Archdiocese also suggests an undue entanglement may arise from discovery, apart from any substantive review of Catholic doc*988trine. Judge Green also alludes to discovery as entangling. The Archdiocese anticipated it would be asked to provide documents— either through a request for production if it were a party or a subpoena if it were not—and church officials involved in the annulment process would be deposed. That certainly seems to be a reasonable expectation. The Archdiocese argues discovery would impermissibly intrude on Catholic Church practices and confidential information. Those fears, however, look to be unwarranted and so would not justify dismissing Purdum’s suit.
Civil discovery frequently requires disclosure of confidential or otherwise sensitive material, such as medical records, tax and financial information, or proprietary trade or research data. The Kansas Code of Civil Procedure recognizes multiple ways of protecting that sort of docuznentary evidence through protective orders or other judicial control. See K.S.A. 2012 Supp. 60-226(c). A court may prohibit excessively intrusive discovery that lacks some demonstrable purpose. It may allow production of redacted documents or require that materials produced be maintained and used in a strictly regulated manner to preserve their confidentiality. With respect to depositions, a court may similarly limit the scope of questioning to discoverable information, and the transcripts may be sealed if the content is especially sensitive. The legal representative of a nonparty deponent may seek an appropriate order of the court before the deposition or during tire examination. K.S.A. 2012 Supp. 60-226(c)(3); K.S.A. 2012 Supp. 60-230(d). In atypical cases in which lines between permissible and impermissible examination frequently might be crossed intentionally or inadvertently, a judge or special master may preside over a deposition to assure adherence to discovery limitations. See K.S.A. 2012 Supp. 60-253(c); Leor Exploration & Production v. Aguiar, No. 09-60136-CIV, 2009 WL 3097207, at “2 (S.D. Fla. 2009) (unpublished opinion) (Under comparable federal rules, the court appoints a special master to preside over the deposition of a lawyer for the defendant because of privilege and confidentiality issues.).
At oral argument, counsel for Purdum suggested discoveiy from the Archdiocese would be aimed at substantiating dissemination of Harcsar’s statement in the annulment petition. In other words, *989Purdum would seek information about who saw or discussed the contents of the annulment petition and specifically the allegedly defamatory statement, presumably along with its impact, if any, on their views of his reputation. See Byers v. Snyder, 44 Kan. App. 2d 380, 396, 237 P.3d 1258 (2010) (elements of defamation are: a false and defamatory statement; communication of the statement to third persons, that is, publication; and harm to reputation resulting from the communication); Droge v. Rempel, 39 Kan. App. 2d 455, 459, 180 P.3d 1094 (2008) (same). Purdum’s counsel disclaimed any need to inquire into the Archdiocese’s substantive analysis or deliberation of Harcsar’s application for annulment or the canonical basis for any decision to grant or deny it. Again, without prejudging specific discovery issues, that reflects a reasonable dividing line between the discoverable and nondiscoverable. Appropriate discovery related to publication would not intrude upon church doctrine.
The request for production Judge Green cites appears to be overly broad. But propounding too expansive a discovery request cannot justify dismissing a plaintiff s suit or conversely justify entering judgment against a defendant. A district court has the authority to focus discovery, prevent abusive discovery, and to insure confidentiality when necessary. Chronic discovery abuse in a given case would be another matter, potentially calling for harsh sanctions up to and including entry of an adverse judgment. See K.S.A. 2012 Supp. 60-226(f)(3). But that’s not the issue here. Appropriately tailored discovery pertaining to Purdum’s libel claim would not result in constitutionally impermissible entanglement of the courts in church doctrine or decision-making. The district court presumably would monitor the pretrial proceedings as necessary and enter those orders required to avoid unduly entangling or intrusive inquiry while generally permitting appropriate discovery contemplated in civil suits.
In sum, the Archdiocese has chosen to present its argument as if church autonomy and undue entanglement principles already-— plainly and obviously—govern this case. As the Archdiocese has framed tire issues based on Purdum’s libel claim, its premise looks to be incorrect. And the Archdiocese' really has offered no studied *990argument for a reasoned expansion of either of those doctrines to reach tire libel alleged here. Given the record and the issues presented, the district court correctly rejected church autonomy and undue entanglement as bases to dismiss Purdum’s suit at the pleading stage.
Before closing this discussion, I comment on an argument the Archdiocese has offered to bolster its expansive interpretation of the religion clauses without separately identifying that position or citing supporting authority. At several points in its brief, the Archdiocese submits that persons such as Harcsar may be reluctant or flat unwilling to request annulments if they believe they may be sued for what they put in their petitions and that other persons may be deterred from supporting those petitions for tire same reason. The Archdiocese says suits for defamation, like Purdum’s, must be dismissed under the religion clauses to eliminate that potential burden on a legitimate religious practice. In other words, defamation suits have an impermissible “chilling effect” on persons wishing to obtain annulments.
In making that suggestion, the Archdiocese, without explanation, tries to transplant a recognized, though limited, avenue for challenging direct government action, typically in the form of criminal statutes, impairing or inhibiting constitutionally protected speech. See Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003) (A party may challenge tire threatened enforcement of a law as imposing an impermissible “chill [of] constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.”); Reno v. American Civil Liberties Union, 521 U.S. 844, 871-72, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). But die challenged law’s impact on protected speech must be “ ‘substantial’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications” before the courts will step in to limit or preclude its enforcement. Hicks, 539 U.S. at 119-20 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 [1973]).
The religion clauses, however, do not appear to support a constitutionally based chilling-effect argument as part of the church autonomy doctrine or otherwise. See American Family v. City & *991County of San Francisco, 277 F.3d 1114, 1124 (9th Cir. 2002) (declining to consider “chilling effect” argument in conjunction with claim against municipality based on Free Exercise Clause); United States v. Grayson County State Bank, 656 F.2d 1070 (5th Cir. 1981) (rejecting argument that IRS summons to bank for information related to church’s account would have chilling effect under the Free Exercise Clause because the government action “does not restrict the church’s freedom to espouse religious doctrine”). Even if the religion clauses did, a private suit or the threat of such a suit inhibiting a religious practice would not trigger protection on that basis, consistent with parallel free speech principles. See American Family Ass’n, 277 F.3d at 1124 (court declines to find “chilling effect” protections in Free Exercise Clause given the absence of legislative action affecting religious practice).
Here, Harcsar faced no criminal or other statutory recrimination, and no governmental entity has threatened her or taken action against her. Likewise, no one else seeking an annulment would confront direct government action imposing a penalty or similar legal detriment for doing so. On that basis alone, the Archdiocese’s reliance on a constitutionally grounded chilling-effect argument seems to be without legal force.
Even if I were to suppose a private suit asserting a common-law claim amounted to tire sort of government action that would permit threshold consideration of a chilling-effect argument—an extravagant supposition—defamation wouldn’t otherwise fit. The law of defamation permits private parties a remedy for falsehoods injurious to their reputations. As I pointed out earlier, those claims have long been recognized as serving legitimate personal and societal interests. See Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (“law of defamation embodies the public policy that individuals should be free to enjoy their reputation unimpaired by false and defamatory attacks”); Kanaga v. Gannett Co., Inc., 687 A.2d 173, 181 (Del. 1996) (same). At the same time, however, defamation law has been crafted to prevent burdening communication otherwise protected under the Free Speech Clause. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991) (public figure must prove defamatory *992statement was published with knowledge that it was false or with reckless disregard for its truth or falsity); Turner v. Halliburton Co., 240 Kan. 1, 7-8, 722 P.2d 1106 (1986) (notingvarious qualified privileges applicable in defamation actions); Gobin, 232 Kan. at 5 (Damages for defamation may not be presumed; they must be proved.); Luttrell v. United Telephone System, Inc., 9 Kan. App. 2d 620, 622-23, 683 P.2d 1292 (1984) (qualified privilege for in-tracorporate publication of alleged defamation).
Many of those safeguards apply equally here. And they afford Harcsar or anyone else seeking an annulment considerable protection for the content of their petitions to the Catholic Church. On balance, the checks built into defamation law sufficiently keep those claims from impermissibly inhibiting or chilling constitutionally protected speech, and I have no reason to conclude those checks would fail to serve a like role as to secular statements made in conjunction with religious practices. Assuming a chilling-effect argument could be raised under the Free Exercise Clause at all, it would not apply here without substantially enlarging how those arguments are now applied in free speech cases. The Archdiocese offers no rationale for that kind of bifurcated approach.
Because Harcsar’s challenged statement was entirely secular, although disseminated in a l'eligious ritual, the Archdiocese’s position would, in effect, insulate any communication made in the course of a religious practice from civil liability for defamation, even though tire content might be actionable if published in another forum. As I have pointed out, that position is difficult to reconcile with Smith. The argument also would accord especially favored treatment to religious proceedings compared to other means of communication when it comes to defamation law—a position difficult to reconcile with the Establishment Clause’s limitation on governmental preference for religious activity. See 6 Rotunda & Nowak, Treatise on Constitutional Law § 21.6(d) (4th ed. 2007) (“An exemption from law of general applicability . . . that only provided an exemption for members of a specific religion, or an exemption only for persons who held religious beliefs, would establish a denominational preference that would violate the establishment clause.”). So either chilling-effects arguments have no ba*993sis in the religion clauses, or, at the very least, they ought not be used to defeat defamation actions based on secular statements made in the course of religious ritual or practice.
Moreover, statements of religious belief or doctrine and statements related' to the selection or regulation of spiritual leaders would otherwise be protected under the church autonomy doctrine so any chilling-effect protection would be superfluous for them. Many secular statements would be shielded that way. For example, an intrachurch complaint that a cleric had sexually abused a minor is a secular statement, but it would not support a defamation claim based on tire minister exception rather than on any chilling-effect theories borrowed from free speech jurisprudence. The Archdiocese again looks to be augmenting accepted religious clause law without a reasoned basis for doing so.
4. Opinions to affirm incorrectly invoke subject matter jurisdiction and improperly rely on issues the parties have not raised.
In their separate opinions finding that Purdum’s suit should be dismissed on die pleadings, Judge Green and Judge Bruns incorrectly characterize the issues they address as going to the court’s subject matter jurisdiction. They really are affirmative defenses that do not cut off the court’s jurisdictional authority. The error affects how those issues ought to be treated on a motion to dismiss presented under K.S.A. 2012 Supp. 60-212(b) or for judgment on the pleadings under K.S.A. 2012 Supp. 60-212(c). Even if the issues dealt with subject matter jurisdiction, my colleagues err in taking them up now because the parties have never asserted or briefed them. The factual record is materially incomplete, particularly on consent, and argument from counsel nonexistent. A court ought not dismiss even on jurisdictional grounds without hearing from the parties on the issue.
a. Subject matter jurisdiction not at issue; defendants raise affirmative defenses
Subject matter jurisdiction confers authority on a court to hear a particular type of case. Chelf v. State, 46 Kan. App. 2d 522, 529, 263 P.3d 852 (2011); In re Estate of Heiman, 44 Kan. App. 2d 764, *994Syl. ¶ 2, 241 P.3d 161 (2010). A party may raise lack of subject matter jurisdiction in a motion to dismiss under K.S.A. 2012 Supp. 60-212(b)(1). In deciding a 60-212(b)(1) motion, the district court can hear evidence and make credibility findings. See Odyssey Marine v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011); Lovely v. United States, 570 F.3d 778, 781-82 (6th Cir. 2009); Radil v. Sanborn Western Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). A court, therefore, is not limited to the factual allegations in the pleadings. Odyssey Marine, 657 F.3d at 1169. Typically, the party asserting subject matter jurisdiction bears the burden of proof. Garanti Finansal Kiralama v. Aqua Marine & Trading, 697 F.3d 59, 65 (2d Cir. 2012); United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004).
But absolute privilege, church autonomy, and consent do not deprive a court of subject matter jurisdiction. They are, rather, affirmative defenses that if proven defeat a plaintiff s substantive claim. And that limits how they may be treated under K.S.A. 2012 Supp. 60-212. If a court were to properly consider those defenses at this stage in the case, it would be on a motion to dismiss for failure to state a claim under K.S.A. 2012 Supp. 60-212(b)(6) or for judgment on the pleadings under K.S.A. 2012 Supp. 60-212(c). The same standard governs both and permits dismissal only if the facts alleged or admitted in the pleadings demonstrate no theory of relief for the plaintiff or an insuperable legal bar to relief. Rector v. Tatham, 287 Kan. 230, Syl. ¶ 1, 196 P.3d 364 (2008) (dismissal proper only if factual allegations fail to establish any theory of recovery); Nelson Energy Programs v. Oil & Gas Technology Fund, 36 Kan. App. 2d 462, 472, 143 P.3d 50 (2006) (noting the same standard should be applied under both K.S.A. 60-212(b)(6) for failure of petition to state a claim and K.S.A. 60-212(c) for judgment on tire pleadings); Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 200-01, 960 P.2d 255 (1998) (court to rely on the pleadings only); Ray v. Kertes, 285 F.3d 287, 295 n.8 (3d Cir. 2002) (If an affirmative defense “ would present an insuperable barrier to recovery by the plaintiff/ ” it may be considered on a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) [quoting Flight Systems, Inc. v. Electronic Data Systems, 112 F.3d 124, 127 (3d Cir. 1997)]). *995The factual allegations and any reasonable inferences drawn from them must be taken as true. Rector v. Tatham, 287 Kan. 230, Syl. ¶ 1. A motion for judgment on the pleadings or a motion to dismiss for failure to state a claim, then, requires the district court to liberally construe the allegations in favor of plaintiff and precludes review of any external evidentiary sources. The basis on which a court may grant the motion is far narrower than on a challenge to subject matter jurisdiction. See Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981) (comparing the court’s limited review in dismissing for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6) with its more expansive review in dismissing for lack of subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1)).
Courts have regularly recognized privilege to be an affirmative defense to a claim and not something that negates subject matter jurisdiction. General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990) (“invocation of the absolute privilege is an affirmative defense”); Riley v. Riley. 340 S.W.3d 334, 339 (Mo. App. 2011); Isle of Wight County v. Nogiec, 281 Va. 140, 155, 704 S.E.2d 83 (2011); see Rehberg v. Paulk, 566 U.S. _, 132 S. Ct. 1497, 1505, 182 L. Ed. 2d 593 (2012) (Witnesses appearing before grand juries enjoy absolute immunity or privilege in federal civil rights actions brought against them for their testimony, but the Court does not frame the defense as one based on or defeating subject matter jurisdiction.). The Kansas Supreme Court has taken that view. Turner v. Halliburton, Co., 240 Kan. 1, 7, 722 P.2d 1106 (1986). The district court, therefore, erred by treating the Cimijotti privilege as negating subject matter jurisdiction and by applying the relaxed review permitted under in K.S.A. 60-212(b)(1). Judge Bruns repeats that error. Qualified privilege, as a partial defense in defamation law, has nothing to do with subject matter jurisdiction. Turner, 240 Kan. at 7-8); McIntosh v. Partridge, 540 F.3d 315, 326 (5th Cir. 2008) (qualified privilege is affirmative defense to defamation under Texas law requiring proof of malice); Smith v. Des Moines Public Schools, 259 F.3d 942, 948 (8th Cir. 2001) (under Iowa law, qualified privilege is affirmative defense requiring plaintiff to prove actual malice). The issue of privilege should be *996governed by the demanding standards for dismissal on the pleadings.
Similarly, church autonomy and the correlative minister exception and undue entanglement are affirmative defenses and not doctrines depriving courts of subject matter jurisdiction. Hosanna-Tabor, 132 S. Ct. at 709 n.4. In Hosanna-Tabor, the United States Supreme Court specifically concluded the minister exception to be “an affirmative defense to an otherwise cognizable claim” that did not deprive a court of the authority to hear a case. 132 S. Ct. at 709 n.4. The minister exception has been crafted to “prohibit government involvement in such ecclesiastical decisions” bound up in “church control over those who will personify its beliefs.” 132 S. Ct. at 705-06. It is, therefore, a particularized application of the constitutional prohibition on undue entanglement of governments in church affairs and the church autonomy doctrine. Alcazar v. Corp. of the Catholic Archbishop, 627 F.3d 1288, 1291 (9th Cir. 2010); Schleicher v. Salvation Army, 518 F.3d 472, 474 (7th Cir. 2008) (“[bjlocking . . . entanglements of the secular courts in religious affairs is one of the grounds on which tire ministers exception was devised”). To the extent Purdum consented to the Catholic Church’s oversight of his sacramental marriage and its annulment, that consent amounts to an affirmative defense to his suit based on excessive entanglement. But consent would not deprive the courts of subject matter jurisdiction to hear Purdum’s suit, and the issue should not be determined under the standards of K.S.A. 2012 Supp. 60-212(b)(1). The authority Judge Bruns cites suggesting the church autonomy doctrine extinguishes subject matter jurisdiction predates Hosanna-Tabor and does not survive the Court’s rejection of that position in resolving a conflict in the case-law on the point. See Hosanna-Tabor, 132 S. Ct. at 709 n.4; Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1241-42 & n.4 (10th Cir. 2010) (noting minister exception reflects narrow application of broad church autonomy doctrine; both properly treated as defenses to claims and rather than as attacks on court’s subject matter jurisdiction); Petruska v. Gannon University, 462 F.3d 294, 302-03 (3d Cir. 2006) (minister exception and church autonomy doctrine entail defenses to claims but do “not affect the *997court’s authority to consider them,” citing Bryce, 289 F.2d at 654); Bryce, 289 F.3d at 654 (church autonomy doctrine properly treated as defense to plaintiffs’ claims and not as divesting court of subject matter jurisdiction).
In tire context of a libel or defamation action, consent of the injured party is also an affirmative defense to the claim—not a prohibition of the court’s authority to hear the suit. Bogie v. Rosenberg, 705 F.3d 603, 612 (7th Cir. 2013) (consentís in the nature of an affirmative defense to an action for invasion of privacy); Restatement (Second) of Torts § 583 (1976) (consent to publication of defamatory matter is a complete defense); 53 C.J.S., Libel § 220 (consent recognized as affirmative defense).
Because privilege and consent—in whatever form they might be considered—are defenses to Purdum’s cause of action for libel and would not—even if proven—deprive the courts of subject matter jurisdiction, they must be considered under the demanding standards for motions to dismiss under K.S.A. 2012 Supp. 60-212(b)(6) or judgments on the pleadings under K.S.A. 2012 Supp. 60-212(c). Measured that way, there are no factual averments in the pleadings establishing the nature and extent of Purdum’s consent either to allowing the Catholic Church to annul his marriage to Harcsar or to being defamed in that process.
Neither this court nor the district court could have entered judgment against Purdum based on the factual averments in the amended petition, the answer, or the two pleadings taken together. The only mention of consent turns up in a single paragraph of Harcsar’s answer asserting Purdum “consented to Defendant’s alleged defamatory statements by being married in the Catholic Church and signing a confidentiality agreement with the Church” and characterizing that assertion as an affirmative defense. While that assertion preserves the issue, see K.S.A. 2012 Supp. 60-208(c) (affirmative defenses shall be stated in a responsive pleading), it fails to set forth facts that could be considered to dismiss on the pleadings. Neither the terms nor the circumstances of Purdum’s purported consent were set out. Nor was the confidentiality agreement described or incorporated into the answer. A “confidentiality agreement” would not obviously be the legal equivalent to consent. *998The undeveloped averment of consent fails to support dismissal at the pleading stage. The factual particulars of the consent would have to be established in discoveiy and its legal efficacy addressed in a motion based on that record.
Judge Green and Judge Bruns incorrectly treat those issues as challenges to subject matter jurisdiction and, therefore, err in considering evidentiary materials outside the pleadings, particularly the affidavits attached to the Archdiocese’s motion to dismiss. Their review properly should be confined to the pleadings alone.
If a court considers materials outside the petition or pleadings in weighing dismissal under K.S.A. 2012 Supp. 60-212(b)(6) or K.S.A. 2012 Supp. 60-212(c), the motion must then be treated as one for summary judgment. K.S.A. 2012 Supp. 60-212(d); State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 797, 112 P.3d 131 (2005) (court’s use of materials outside the petition converts a motion to dismiss to one for summary judgment). In that instance, “[a]ll the parties must be given a reasonable opportunity to present all the material pertinent to the motion.” K.S.A. 2012 Supp. 60-212(d). That hasn’t happened here. So this court should not rely on evidentiaiy materials from the Archdiocese in evaluating the sufficiency of the affirmative defenses. To the extent Purdum consented to the district court’s consideration of those materials, it was solely to resolve challenges to subject matter jurisdiction. The Archdiocese’s motion to dismiss was directed only to lack of subject matter jurisdiction. Purdum neither agreed to convert the motion to dismiss to one for summaiy judgment on affirmative defenses nor waived the opportunity to conduct discovery to respond to a summaiy judgment motion.
Purdum’s amended petition arguably does contain sufficient factual averments to consider an affirmative defense of absolute privilege based on Harcsar’s making the defamatory statement to the Archdiocese in support of her request for an annulment and publication being confined to review in that process. But the district court erred as a matter of law in recognizing an absolute privilege deriving from the religion clauses, as Judge Green and I agree. Judge Bruns, therefore, mistakenly relies on the phantom Cimijotti privilege in opting to uphold the dismissal, and that is true whether *999the privilege, if it actually existed, ought to be treated as an affirmative defense or a bar to subject matter jurisdiction.
The same cannot be said of consent. The amended petition and the answer simply contain no factual averments sufficient to determine the nature and scope of Purdum’s consent and, in turn, to assess its legal implications. On the record before us, a motion to dismiss or for judgment on the pleadings based on consent must fail. For that reason alone, consent cannot provide an alternative basis to uphold the judgment against Purdum.
b. Purdum has not been given an opportunity to address consent
Even if I am wrong in characterizing consent—the cornerstone of Judge Green’s decision to affirm and a substantial weight-bearing beam in Judge Bruns’ opinion—as an affirmative defense, there is a more fundamental flaw in affirming on that ground. The issue of consent was never briefed or argued to the district court as a basis for dismissal, and it has not been briefed or argued here. Accordingly, the parties have not had an opportunity to address the issue. And, more specifically, Purdum hasn’t been given a chance to argue his case against dismissal based on consent.
Assuming consent actually goes to subject matter jurisdiction, the court has an obligation to acknowledge the issue although the parties have not. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). But that does give the court license to decide the issue without input from die parties. To the contrary, a court should afford the parties—particularly the one about to be deprived of a judicial forum for relief—the opportunity to present legal authority and, if necessary, evidence on the issue. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006) (“A court can evaluate its jurisdiction without an evidentiary hearing ‘so long as the court has afforded [the parties] notice and a fair opportunity to be heard.’ ” [quoting Tanzymore v. Bethlehem Steel Corporation, 457 F.2d 1320, 1323-24 (3d Cir. 1972)]); Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003) (appellate court holds district judge erred in dismissing action because it “did not afford the parties a full and fair opportunity to litigate the question of subject-matter jurisdiction”; error treated as harmless *1000because parties then fully argued issue on a motion to alter or amend judgment); Williamson, 645 F.2d at 414 (When considering dismissal for lack of subject matter jurisdiction, “the district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss.”). The United States Court of Appeals for tire Fifth Circuit recently addressed the issue under the comparable federal rule: “When considering [a] Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the district court must give the plaintiff an opportunity to be heard, particularly when disputed factual issues are important to the motion’s outcome.” In re Eckstein Marine Service L.L.C., 672 F.3d 310, 319 (5th Cir. 2012). The court added that “an oral hearing is not always necessaiy-if the parties receive an adequate opportunity to conduct discovery and otherwise present their arguments and evidence in court.” 672 F.3d at 619-20. Appellate courts enjoy no authority to usurp a party’s right to be heard because an issue bears on subject matter jurisdiction. See Ryser, 295 Kan. at 456-57 (Kansas Supreme Court requests supplemental briefs on subject matter jurisdiction); Funk Mfg. Co. v. Franklin, 261 Kan. 91, 94-95, 927 P.2d 944 (1996) (same); Travelers Property Cas. v. Good, 689 F.3d 714, 717 (7th Cir. 2012); Youkelsone v. FDIC, 660 F.3d 473, 475 (D.C. Cir. 2011).
Here, however, Judge Green and Judge Bruns have done just that in reaching out to affirm based on Purdum’s consent. They do not suggest the issue has been raised or argued. They point to nothing in the briefs arguing consent. There is nothing. Judge Green extracts a generic paragraph from the affidavit of Monsignor William J. King submitted to the district court with the Archdiocese’s motion to dismiss—a motion that did not raise consent as an issue. The description refers to die consent couples commonly malee in preparation for a sacramental marriage. But Monsignor King did not attend to Purdum and Harcsar in their wedding preparation. Purdum has not had any opportunity to provide his version of what he consented to. Nor has he had a need to do so, since consent was not an issue argued to the district court or in the appellate briefing. It has only become an issue with the release of *1001this opinion. Neither side, of course, has offered legal argument or authority on consent.
Judge Green takes the same approach with qualified privilege, a defense to defamation claims independent of religions clause issues. The parties have not briefed or argued any of the myriad defamation defenses that might be available to Harcsar. All of those issues were deferred while the parties battled over church autonomy and absolute privilege. At this juncture, this case should no more be decided on qualified privilege than on consent.
The proper course, here, would be to reverse and remand on the issues that actually have been briefed. In due course, the district court would then take up consent and any defamation defenses Harcsar might assert. Will assessing the nature and scope of Purdum’s consent to a sacramental marriage itself unduly entangle the district court in the religious values and doctrine of the Catholic Church? Perhaps. Is Harcsar entitled to qualified privilege? Maybe. But until the parties frame tiróse issues factually and present their view of the controlling law, the court has no way of knowing.
My colleagues’ willingness to raise and decide consent as a jurisdictional issue without a factual record and legal argument is both inappropriate and wrong on multiple levels. If nothing else, it seems manifestly unfair. Nothing in my dissent forecloses consideration of consent or any defamation defense on a developed record and after the parties have been given an opportunity to be heard.
c. In affirming, the majority opinions mask the constitutional issues
Finally, I would suggest Judge Green and Judge Bruns have couched their positions almost as if Purdum had sued the Archdiocese and sought to upend the annulment, when, of course, he has done neither. That camouflages the complexity of the constitutional issues this case actually presents. If Purdum were suing to prevent the Catholic Church from annulling his sacramental marriage to Harcsar, the dispute would be relatively straightforward *1002with settled law against him. See Milivojevich, 426 U.S. at 708-09; Bryce, 289 F.3d at 655.
Judge Green submits that “Purdum’s defamation action involves an ecclesiastical subject matter,” thereby entangling the courts in “a church matter.” He cites Watson, the United States Supreme Court case predating Fourteenth Amendment incorporation, in support of his position. Watson, 80 U.S. (13 Wall.) at 728-79. But the point Watson makes—and it remains part of the modern church autonomy doctrine—is this: Persons “aggrieved by” decisions of religious tribunals on “controverted questions of faith” or by decisions of church leadership “for tire ecclesiastical government” may not “appeal to the secular courts and have them reversed.” Watson, 80 U.S. (13 Wall.) at 728-79. Purdum’s suit alleging Harcsar defamed him does not patently fit that description. He has not sued to derail the annulment of the marriage. Harcsar’s entitlement to an annulment under Catholic Church canon likely would delve into “questions of faith” and almost certainly into “ecclesiastical government.” But assuming Harcsar alleged Purdum to be bipolar and assuming such a statement to be defamatory, whether she made the assertion knowing it to be false seems, on its face at least, distinct from matters of religious belief or church doctrine. And at this stage in the litigation, without any discovery, we are left to judge based on facial appearances. Had Purdum alleged Harcsar represented him to be a blasphemer or otherwise sacrilegious as the grounds for the annulment, the facial appearance materially changes. But that is not what we have before us.
Judge Green then concludes with rhetorical inquiries. He first suggests a fact-finder in this case could not determine if Harcsar made the bipolar statement believing it to be true without also exploring her religious sincerity or conscience. But posing the question really doesn’t dictate the answer. Just how Harcsar’s religious sincerity bears on whether she knew a representation that Purdum was bipolar might be true or false is hardly clear. If Judge Green is suggesting that Harcsar could succeed by arguing that as a devout Catholic she sincerely wanted an annulment so die representation was justified true or not, he ventures into the area of religious necessity as a defense, another legal issue essentially unex*1003plored in this case. Though it would be, at best, a debatable defense. See Smith, 494 U.S. at 878-79; City of Wichita v. Tilson, 253 Kan. 285, 289-90, 296, 855 P.2d 911 (1993) (rejecting religious necessity as defense to criminal prosecution). Judge Green next asks how might that fact-finder address Harcsar’s defense of consent without getting entangled in “the administration and procedures of tire Archdiocese’s annulment proceedings?” The answer on this record must be that we don’t know until the parties inform us of the factual basis for the consent. And we would do well to await their legal arguments about those facts before dismissing this suit.
As I have suggested, Judge Brans errs in disposing of this case for lack of subject matter jurisdiction by relying, at least in part, on the unfounded absolute privilege described in Cimijotti. Judge Brans submits that such a privilege, emanating from the religious clauses of the First Amendment, is “imperative” for the Roman Catholic Church to provide annulments of sacramental marriages. But he cites no authority, apart from Cimijotti, for that privilege. The circumstances here arguably belie its necessity—the Catholic Church has granted Harcsar’s annulment, according to counsel. Judge Bruns turns to the, as yet, unlitigated issue of consent to bolster the application of church autonomy to affirm dismissal. Finally, Judge Brans argues that because the allegedly defamatory statement was published “within the context of a consented-to ecclesiastical proceeding,” this suit must be barred. He cites Hosanna-Tabor as analogous. But there, a called minister sued, under federal antidiscrimination laws, to reverse the church’s decision to terminate her employment. That litigation challenged a decision of the church on the selection of a spiritual leader, a matter long recognized to be inextricably tied to religious doctrine and its inculcation and, thus, constitutionally protected from review in secular courts. Purdum’s suit doesn’t rest on those attributes—at least based on the allegations in the pleadings and the prediscoveiy record—and doesn’t invoke tire church autonomy doctrine in the same obvious way. While Judge Bruns suggests his decision is confined to the “unique facts” of this case, his approach could be seen as expanding church autonomy to cover any statement made in a pur*1004portedly confidential proceeding related to worship or religious activity. The extension, however, is ill defined and readily could be construed to shield a church elder falsely branding a congregant a convicted sex offender, a sociopath, or a host of other noxious things during a private administrative meeting of ministers and deacons. This case, as it has been presented to us, is not a vehicle for taking the law in that direction.
The record and the actual argument of the parties require a narrow conclusion to this appeal allowing Purdum to continue. On a factually developed record, his case might fall based on religious clause protections or defamation law defenses. But we have no legal warrant for accelerating the judicial process to dispense with discovery and to dismiss on grounds that haven’t been presented, let alone argued.
I would reverse and remand for further proceedings.
The penitential communication privilege codified in K.S.A. 60-429 probably does not apply to the statements Harcsar included in her petition for an annulment. Assuming they otherwise qualified as a “penitential communication,” the statements fail the statutory test because Harcsar could not have intended them to be “secret and confidential,” since they were disclosed to Purdum as part of *971the protocols for the annulment process. But communication to Purdum would not amount to actionable publication to support a defamation claim. Restatement (Second) of Torts § 577 (1976), comment b (“To constitute publication it is necessary that tlie defamatory matter be communicated to someone odier than the person defamed.”)- Purdum’s inability to bring suit based on disclosure to him would not preserve the evidentiary privilege, since the privilege depends upon on the penitent’s expectation of confidentiality for die communication and not on whether the communication might be legally actionable on some tiieory if it were no longer confidential.
On die matter of privilege, I mention in passing Redgate v. Roush, 61 Kan. 480, 59 P. 1050 (1900), which Purdum argued in the district court and has cited *973on appeal. In drat case, the Kansas Supreme Court held that a qualified privilege applied to statements leaders of a Wabaunsee County church published to their counterparts within the denomination about the reasons they dismissed their minister. 61 Kan. at 484-85. The minister suéd them for libel. The court did not consider the Free Exercise Clause, since protections in tire Bill of Rights had not yet been incorporated through the Fourteenth Amendment to apply in state judicial proceedings. Rather, the court relied on traditional defamation principles to hold that statements published in good faith in service of a private duty to the church community warranted a qualified privilege. 61 Kan. at 485. Whether Harc-sar might be entitled to a qualified privilege under Kansas defamation law— something entirely distinct from the absolute privilege Cimijotti mistakenly derives from tire Free Exercise Clause—is not before tire panel. The parties never got around to briefing or arguing defamation law either in the district court or here. In addition, Redgate deals with the termination of a minister, a material factual difference. Under modem religion clause jurisprudence, the church autonomy doctrine has been construed to preclude suits related to tire selection or retention of spiritual leaders. See Hosanna-Tabor, 132 S. Ct. at 704-06; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 717-20, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976).
Botli Watson and King predate the recognized incorporation of the religion clauses of the First Amendment through the Fourteenth Amendment, so tiróse decisions did not, strictly speaking, rely on constitutionally grounded rights. They reflected jurisprudential principles found in the common law. Neither case directly discussed or explicitly cited the First Amendment. But Watson described the political philosophy of the nation as recognizing a clear divide between institutions of government, particularly the courts, and institutions of religion and then invoked that philosophy, with citations to supporting caselaw, to declare disputes based on religious beliefs or “theological controversy” to be outside any appropriately exercised judicial authority. In turn, that declaration informed King and, more broadly, the postincorporation scope of die religion clauses.
Congress has legislatively sought to limit Smith through the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb etseq. (2006), and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. (2006). Neither applies here. The United States Supreme Court has held that RFRA does not apply to the states. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 n.1, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (2006). And RLUIPA, by its terms, affects “land-use regulation... and restrictions on the religious exercise of institutionalized persons.” Sossamon v. Texas, 563 U.S. 277, 281, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011).
The court expressly declined to rely on the minister exception affording constitutional protection to church decisions regarding hiring, discipline, and termination of religious or spiritual leaders. The panel found the inquiry unnecessary and declined to conclude Bryce functioned as a minister, notwithstanding her job title. 289 F.3d at 658 n.2. Based on the job description offered in the decision, 289 F.3d at 651, the issue was hardly clear cut. See Hosanna-Tabor, 132 S. Ct. at 699-700 (training and duties of “called” teacher show her to be a minister for purposes of tire exception); 132 S. Ct.. 707-08 (same); 132 S. Ct. at 708 (use of the title “minister” does not necessarily establish tire exception applies).