Ministerial exemption and the Collateral Order Doctrine

A divided Tenth Circuit holds that denial of summary judgment on ministerial exemption grounds is not subject to immediate review under the Collateral Order Doctrine. The point of departure went to whether the ministerial exemption is a defense against liability or an immunity from suit analogous to qualified immunity. The majority said it is a defense against liability turning on a fact question--whether the plaintiff is a minister; it therefore was not effectively unreviewable on appeal. The dissent argued the exemption is an immunity from all litigation, lost if the defendant must wait to appeal.

Some quick thoughts.

The court divided is over what to do with language in Hosanna-Tabor describing the exemption as  a "bar" to a Title VII suit or claim. But that takes Hosanna's language out of context. The Court distinguished between a limit on the court's jurisdiction and a defense to the merits, defining the exemption (properly) as the latter. The Court did not consider or decide whether this defense was an immunity from suit or a defense against ultimate liability.

The defense-to-suit v. defense-to-liability debate makes no sense and it is too bad the majority and dissent spent so much time on it. As the Court recognized, "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand trial,'" and every right could be characterized as one or the other. Thus, it is not mere avoidance of trial that matters, but "avoidance of a trial that would imperil a substantial public interest." The question then becomes whether the religious defendant's First Amendment interests are sufficiently substantial and public to merit immediate review.

The other point of departure is whether the ministerial exemption is a question of fact or law. The majority said it is a question of fact--is this employee a minister, as defined. That precludes COD review, which is not available on fact questions, even fact questions going to defenses, notably qualified immunity, that are immediately reviewable.