The Jurisdiction Problem in the Church Autonomy Cases

Courts are all over the map about jurisdiction, but the label isn't as important as the substance.

I've been blogging this week about church autonomy. So far my posts have been based on my new paper on "The Limits of Church Autonomy." In this post I'm going to leave the subject of the paper to talk about another issue in the church autonomy caselaw, one that's a bit in the weeds of civil procedure but really matters. (This post is based on a recent symposium presentation I gave at Loyola Chicago; I'm currently writing up a longer version of this for the symposium issue of the Loyola Chicago Law Journal.)

Courts are divided about whether church autonomy is jurisdictional in a more technical and procedural sense. For a while, the federal courts were split as to whether church autonomy should be raised as a jurisdictional challenge under Rule 12(b)(1) or as an affirmative defense under Rule 12(b)(6). Alongside the courts that agreed that church autonomy was jurisdictional were others that denied church autonomy fit the description of jurisdictional.

Why it matters

In many cases it doesn't really matter whether church autonomy is jurisdictional or an affirmative defense. But it does matter in answering the following questions:

1. Must church autonomy be resolved at the earliest possible opportunity?
2. Can a denial of church autonomy be subject to an interlocutory appeal?
3. Can church autonomy be raised at any time in the proceedings?

If it's jurisdictional, then all of these questions must be answered "yes."

Resolving the problem (or not)

The Supreme Court thought it could solve the problem with a footnote in its 2012 decision, Hosanna-Tabor, where it explained that church autonomy is an affirmative defense. In the immediate aftermath of the decision, Howard Wasserman argued that the Court's position was the best approach in light of the Court's efforts to tighten the definition of jurisdiction in recent years.

But the Supreme Court didn't solve the question of whether church autonomy is jurisdictional. The question lives on.

The courts are still divided

A number of state courts continue to treat the matter as jurisdictional. Texas courts, for instance, continue to say that a church autonomy defense should be raised as an objection to jurisdiction: "A party may raise lack of subject matter jurisdiction via a plea to the jurisdiction 'when religious-liberty grounds form the basis for the jurisdictional challenge.'"

Sometimes, the decision to treat the church autonomy issue as jurisdictional in the face of the Supreme Court's disagreement has been controversial. One judge on the Texas Court of Appeals dissented in a recent case on precisely this issue. The court majority issued a writ of mandamus to stop a district court from deciding a dispute about a priest's pay, when the matter involved examining the decision making of a religious authority over a minister. In dissent, Chief Justice Yvonne Rodriguez argued that church autonomy is not jurisdictional and thus cannot be the basis for mandamus. She noted that the Texas Supreme Court held that church autonomy issues were jurisdictional in its 2007 case, Westbrook v. Penley. But since then, she argued, the U.S. Supreme Court had clarified in Hosanna-Tabor that the First Amendment is not a "substantive restraint on jurisdiction in religious liberty cases," at least when it comes to "employment discrimination." The U.S. Supreme Court trumps state law on issues of federal constitutional law, so, she argued, the Texas courts are in error.

One might think that the federal courts at least would be paying more attention to the Supreme Court's instructions on civil procedure and church autonomy. But when one looks around a bit, it turns out that there's disagreement there too. The Eleventh Circuit said as recently as last year: "Civil courts lack jurisdiction to entertain disputes involving church doctrine and polity."

A decision from the Southern District of New York explained: "It is somewhat unclear whether the First Amendment serves as jurisdictional bar or an affirmative defense to claims that require courts to review ecclesiastical decisions." Citing pre-Hosanna-Tabor decisions, it noted that "[m]ost district courts to consider the question have treated it as jurisdictional." It suggested whether—perhaps—these decisions survived after Hosanna Tabor on the theory that matters implicating "ecclesiastical decisions" outside of the employment context could be treated differently from the "ministerial exception" in the employment context of Hosanna-Tabor.

It's not the only court to make this suggestion. For example, from a District of D.C. decision: "[W]ithout definitive guidance otherwise from the Supreme Court or the D.C. Circuit, the Court will analyze defendants' arguments under the ecclesiastical abstention doctrine—which is 'related' to but 'distinct' from the ministerial exception—under a Rule 12(b)(1) lens, as that approach is consistent with the long-standing practice of treating questions of ecclesiastical entanglement as jurisdictional."

A possible solution

I think that the distinction between "ecclesiastical abstention" and "ministerial exception" is pretty flimsy. But I don't think that the issues that really matter should necessarily turn on whether the issue is labeled jurisdictional. Sovereign immunity is a helpful analogue. Like church autonomy, it's best thought of as an affirmative defense under the tighter definition of 'jurisdiction' employed by the Supreme Court in recent years. But like church autonomy, it has characteristics that appear jurisdictional. In church autonomy as in sovereign immunity, it's best to unbundle the issues, and consider one at a time whether church autonomy can be raised in an interlocutory posture, whether it can be waived, and so on.

There's not space here to tackle all of the issues—but I'll just briefly address one, which is pending in both the Second and Tenth Circuits: can a denial of a church autonomy defense be raised in an interlocutory posture?

I think the answer should yes. And I don't think that it's necessary to characterize church autonomy as "jurisdictional" under Rule 12 for the answer to be yes. Instead, I think the answer is yes based on the reasons for the church autonomy doctrine itself. Protecting against interference with the internal processes of church is the objective of church autonomy. If it's erroneously denied at the outset, and no interlocutory review is available, the protection is entirely lost. It's too late for an appellate court to remedy the matter on appeal later. This is where some courts and commentators have rightly noted an analogy to qualified immunity: the whole point of the doctrine is to protect against having to defend the case.

There's more to say about how this plays out with issues of waiver and forfeiture. I'm working on that paper now (the link will be coming soon to my SSRN or Twitter). In the meantime, thanks to the Volokh Conspiracy for letting me share some of my thoughts on the matter here on the blog, and thank you for reading!