The Seventh Circuit Split on Church-Autonomy Appeals

In Garrick v. Moody Bible Institute, a divided Seventh Circuit held that a defendant cannot immediately appeal from the denial of a motion to dismiss on church-autonomy grounds. The Seventh Circuit thereby joined the Second and Tenth Circuits in both its ultimate holding and its having a split court.

The Church-Autonomy Defenses in Garrick

The plaintiff in Garrick was an instructor at a religious institution of higher education. She was eventually fired. She thereafter sued her former employer for sex discrimination and other Title VII violations. The plaintiff alleged that she was disciplined for conduct that male colleagues got away with. She also alleged that she received unfavorable workloads and evaluations due to her sex.

The employer moved to dismiss under both Title VII’s religious exceptions and the First Amendment. It argued that it fired the plaintiff due to differences in religious beliefs. Among the employer’s tenants was a commitment to complementarianism—a belief that all clergy should be men. The plaintiff disagreed with that belief.

The district court rejected this defense. It reasoned that although Title VII and the First Amendment church-autonomy doctrine might shield the employer from claims of religious discrimination, they did not bar claims for other kinds of discrimination (for which religion was a pretext). The district court added that there would be no inquiry into religious doctrine. Instead, a jury would merely determine whether the reason for the plaintiff’s termination were differences in religious beliefs or sex discrimination.

The Majority’s Decision

A divided Seventh Circuit dismissed the employer’s subsequent appeal.

The majority’s main reason was precedential. The only proffered basis for appellate jurisdiction was the collateral-order doctrine. But in Herx v. Diocese of Fort Wayne, the Seventh Circuit had rejected church-autonomy appeals via that doctrine. Herx held that “district court orders denying church-autonomy and Title VII’s religious-exemption defenses cannot be immediately appealed when the merits do not appear to require judicial entanglement in doctrinal matters.” And in Garrick, the “the question of disparate treatment between men and women c[ould] be evaluated apart from doctrinal differences.”

The majority added that, even applying the collateral-order doctrine anew, the district court’s decision was still not appealable. To be appealable via the collateral-order doctrine, a district court order must (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) be effectively unreviewable in an appeal from a final judgment. According to the majority, none of these requirements was satisfied. The order did not conclusively resolve the church-autonomy defense because the district court had not ordered that a jury would resolve a question of religious belief. The order was not separate because it was intertwined with the plaintiff’s allegations of religious pretext. And the order was not effectively reviewable, as the church-autonomy doctrine does not provide a protection from litigation. That is, it’s not an immunity.

Judge Brennan’s Dissent

Judge Brennan dissented. He thought that Herx was not controlling, as the problem there was an inadequate argument from the party invoking appellate jurisdiction. Judge Brennan also thought that all of the collateral-order doctrine’s requirements were satisfied. Much of his reasoning is based on the conclusion that the church-autonomy defense provides an immunity from suit. If that’s the case, the immunity had been definitively rejected. That immunity was just as separate from the merits as other immunities, such as qualified immunity. And the only opportunity to vindicate an immunity from litigation is through an immediate appeal.

A Few Other Thoughts

The courts of appeals have rejected church-autonomy appeals; both the Second and Tenth Circuits have recent decisions doing so. But those decisions also produced en banc petitions, dissents from denials of rehearing, and cert petitions that the Supreme Court ultimately denied. So this might not be the last we hear of Garrick.

Also worth noting were Judge Brennan’s reasons for rejecting alternative avenues for immediate review. He rejected discretionary appeals under 28 U.S.C. § 1292(b) because that provision “is too arbitrary of a vehicle for review when constitutional rights are at stake.” He also rejected rulemaking, as “Congress cannot create a rule to limit a constitutional right; that would require constitutional amendment.”

On that latter point, it seems like Judge Brennan thinks that church-autonomy appeals via the collateral-order doctrine are not merely permissible. He instead thinks that they are constitutionally required.

That’s a huge leap in collateral-order jurisprudence. And it cannot be correct. There is probably no constitutional right to appeal in the first place. If that’s the case, then there cannot be a constitutional right to an interlocutory appeal.

Garrick v. Moody Bible Institute, 2024 WL 1154135 (7th Cir. Mar. 18, 2024), available at the Seventh Circuit and Westlaw