Introduction
Since 2022, three federal courts of appeals—the Second, Seventh, and Tenth Circuits—have held that they lack jurisdiction to review interlocutory decisions denying church-autonomy defenses under the First Amendment.
These outcomes are, in some sense, unsurprising. In general, circuit courts have jurisdiction to review only final decisions.
Parties do not have a right to immediately appeal most interlocutory orders.
But the consistency of the outcomes in these cases belies a still-simmering debate about the nature of the Religion Clauses’ protections for church autonomy, which could have significant consequences for plaintiffs’ ability to seek recourse from religious institutions.
In each case, a defendant religious institution argued that, notwithstanding the final-judgment rule, a district court’s interlocutory denial of a church-autonomy defense was immediately appealable under the collateral-order doctrine.
That doctrine treats a small class of interlocutory decisions, mostly concerning immunities from suit, as “final” and therefore appealable on an immediate basis.
The defendants in these cases contended that church autonomy not only insulates religious institutions from liability for ecclesiastical decisions but also immunizes them from the burdens of litigation over those decisions.
As a result, they insisted, interlocutory decisions denying church-autonomy defenses are appealable as collateral orders.
Though the Second, Seventh, and Tenth Circuits rejected that theory,
religious institutions continue to argue that interlocutory church-autonomy decisions are immediately appealable.
And they are gaining traction. Several judges and scholars have already expressed strong support for the religious institutions’ view of church autonomy,
and the Second and Tenth Circuits’ decisions narrowly avoided rehearing en banc.
Should the judicial tide change, religious institutions could make it much harder for plaintiffs to get to trial by subjecting them to costly, years-long interlocutory appeals.
This Comment argues that interlocutory orders denying church-autonomy defenses are not immediately appealable, but for reasons not addressed in the Second, Seventh, and Tenth Circuits’ decisions. Part I introduces the collateral-order doctrine and explains that whether an interlocutory order is immediately appealable turns on whether it concerns an immunity from suit or a mere defense to liability. Part II describes competing arguments among judges, scholars, and litigants over whether church autonomy provides an immunity that is subject to collateral-order review. Part III argues that—though largely absent from the Second, Seventh, or Tenth Circuits’ reasoning—historical understandings of church–state relations in the early Republic show that church autonomy does not operate as an immunity from suit. Instead, church autonomy is best understood as a deference doctrine that cannot give rise to immediately appealable collateral orders.
I. The Collateral-Order Doctrine
This Part provides an overview of the collateral-order doctrine, its requirements, and the limited set of rights for which immediate appeal is warranted.
Under 28 U.S.C. § 1291, the jurisdiction of the federal courts of appeals is generally limited to reviewing “final decisions of the district courts.”
Interlocutory decisions are, with few exceptions, not appealable until after a final judgment on the merits.
By requiring that “the whole case . . . [be] decided in a single appeal,”
this final-judgment rule “preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice.”
But the Supreme Court “has long given [§ 1291] a practical rather than a technical construction,” treating a “small class” of “collateral” orders as final even though they do not end litigation on the merits.
That small class “includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.”
Whether these requirements are satisfied is “determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a ‘particular injustic[e]’ averted.”
The Supreme Court’s application of the collateral-order doctrine has often been criticized as unpredictable and incoherent.
But for the past forty years, the Court has articulated at least one consistent principle undergirding its finality jurisprudence: A decision denying “an immunity from suit rather than a mere defense to liability” necessarily satisfies the requirements for a collateral order.
Such decisions conclusively determine that defendants “have no right not to be sued.”
That right not to be sued is conceptually distinct from the underlying merits of an action.
And if erroneously denied, the right “could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost.”
The Supreme Court has strictly limited the rights it recognizes as creating immunities from suit that are subject to collateral-order review. “[V]irtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’”
But such bare characterizations of a right do not alone warrant immediate appeal.
Otherwise, the Court has warned, the collateral-order doctrine would “swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.”
Instead, a right confers a true immunity only if it protects “a substantial public interest”
that is “weightier than the societal interests advanced by the ordinary operation of final judgment principles.”
Such immunities usually arise from one of two sources. First, they may stem from “an explicit statutory or constitutional guarantee that trial will not occur,”
like the Speech or Debate Clause,
the Double Jeopardy Clause,
the Eleventh Amendment,
or the Foreign Sovereign Immunities Act.
Second, an immunity may arise from the need to preserve the proper functioning of, or allocation of power within, the government.
Qualified immunity, for example, protects government officials from the burdens of litigating unwarranted suits that “can be peculiarly disruptive of effective government,” regardless of the ultimate outcome.
If a right does not flow from an explicit guarantee or from governance concerns, it will rarely confer an immunity whose denial is appealable as a collateral order, even if construed as a “right not to stand trial.”
Beyond limiting immediate appeal to decisions denying narrowly defined immunities, the Supreme Court has in recent years disfavored any further expansion of the collateral-order doctrine.
The Court has insisted that deferring appeal until final judgment on the merits is appropriate in most cases.
When immediate appeal is required to prevent injustice in particular cases, the Court encourages the use of alternate avenues to seek appellate review over “the blunt, categorical instrument of § 1291 collateral order appeal.”
And to the extent it is necessary to designate a class of orders as categorically appealable, the Court has explained, “The procedure Congress ordered for such changes . . . is not expansion by court decision” under the collateral-order doctrine, “but by rulemaking under” the Rules Enabling Act, 28 U.S.C. § 2072.
As a result, the Court has recognized only three new categories of collateral orders in the twenty-first century.
A purported immunity from suit is thus unlikely to spawn a new class of collateral orders unless it is rooted in a particularly clear textual guarantee or particularly strong concerns about effective governance.
II. Competing Views of Church Autonomy and Its Immediate Appealability
In recent years, religious institutions have argued that decisions denying church-autonomy defenses under the First Amendment are immediately appealable as collateral orders.
The church-autonomy doctrine, also known as the ecclesiastical-abstention doctrine,
protects religious institutions’ “independence in matters of faith and doctrine and in closely linked matters of internal government.”
In attempting to appeal interlocutory church-autonomy decisions as collateral orders, religious institutions have contended that church autonomy is akin to qualified immunity, a shield to the burdens of litigation that is not subject to the ordinary final-judgment rule.
The three federal courts of appeals to address the question since 2022—the Second, Seventh, and Tenth Circuits—have each rejected that argument.
But churches remain eager to litigate the issue and have repeatedly sought Supreme Court review.
This Part chronicles the development of the church-autonomy doctrine and surveys the competing arguments over whether church-autonomy decisions are immediately appealable as collateral orders.
A. A Short History of the Church-Autonomy Doctrine
The Supreme Court first articulated a principle of church autonomy as a matter of common law in Watson v. Jones in 1871.
The dispute in Watson arose from a schism within a local Presbyterian congregation between pro- and antislavery factions, each of which claimed control over the local church’s property.
In adjudicating which faction constituted the true church, the Court explained that churches must have independence in deciding matters of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.”
As a result, when an ecclesiastical authority has decided such religious questions, civil courts “must accept such decisions as final, and as binding on them, in their application to the case before them.”
In Watson, the highest ecclesiastical authority governing the local congregation—the General Assembly of the Presbyterian Church of the United States of America—had already determined that the antislavery faction properly controlled the disputed property.
The Court was bound by that decision.
Following the incorporation of the Religion Clauses against the states,
the Supreme Court constitutionalized Watson’s church-autonomy principle in 1952.
Throughout the next two decades, the Court repeatedly held that interference with the decisions of religious authorities on “questions of discipline, or of faith, or ecclesiastical rule, custom, or law” violates the First Amendment.
The Court thus invalidated a New York statute that transferred control of local churches from a foreign governing authority to a domestic authority;
forbade Georgia courts from resolving church property disputes based on the courts’ evaluation of the parties’ adherence to religious doctrine;
and overturned an Illinois court order preventing the Serbian Orthodox Church from reorganizing its dioceses due to a judicial interpretation of church law.
But the Court did not completely bar civil adjudication of disputes involving religious institutions. Instead, it reasoned that resolving such disputes using “neutral principles of law” is constitutional.
A Maryland court’s resolution of a church property dispute based on secular language in a deed, for example, “involved no inquiry into religious doctrine” and did not offend the First Amendment.
Though these decisions made clear that “the First Amendment severely circumscribes the role that civil courts may play” in resolving ecclesiastical disputes,
they failed to specify the procedural nature of that limitation. In some cases, the Court spoke of church autonomy as depriving civil courts of “jurisdiction” to decide religious questions.
But the Court nevertheless decided those cases on the merits after accepting ecclesiastical authorities’ answers to any religious questions.
In other words, the Court’s jurisdictional language was at odds with its treatment of church autonomy in practice. The result was a decades-long split among lower federal courts and scholars as to whether the church-autonomy doctrine operates procedurally as a jurisdictional bar or an affirmative defense.
The Supreme Court finally addressed the split over church autonomy’s procedural character in 2012.
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court, for the first time, recognized the existence of a “ministerial exception” that “precludes application of [antidiscrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers.”
The Hosanna-Tabor Court grounded the ministerial exception in its church-autonomy precedents, casting a religious institution’s choice of minister as “strictly a matter of ecclesiastical government” with which civil courts cannot interfere.
And in a footnote, the Court declared that the ministerial exception, and the broader church-autonomy doctrine by extension, is an affirmative defense rather than a jurisdictional bar.
Though the Supreme Court has resolved the conflict over the procedural character of the church-autonomy doctrine, its announcement that the doctrine operates as an affirmative defense leaves many open questions about the substantive scope of that defense.
Most notably, the Court has yet to clarify whether church autonomy protects religious institutions from the burdens of discovery and trial or only from liability. That question has recently come to the fore in litigation over the immediate appealability of interlocutory decisions denying church-autonomy defenses.
B. Church Autonomy as an Immunity Subject to Collateral-Order Review
In the wake of Hosanna-Tabor, several religious institutions, scholars, and judges have argued that, while the church-autonomy doctrine does not impose a jurisdictional bar, it provides more than a mere defense to liability.
These religious institutions and scholars view church autonomy as an immunity from suit akin to qualified or sovereign immunity, both of which operate procedurally as affirmative defenses.
And like decisions denying those other immunities, the argument goes, interlocutory decisions denying church-autonomy defenses are immediately appealable as collateral orders.
This “immunity theory” of church autonomy stems from concerns that, regardless of the outcome as to liability, judicial inquiry into ecclesiastical matters unduly influences churches’ religious affairs.
That is because subjecting churches to litigation over “sensitive religious decisions”—thereby “[a]llowing ‘[c]hurch personnel and records’ to ‘become subject to subpoena, discovery, [and] cross-examination’”—could “pressure churches to base religious decisions on ‘avoid[ing] litigation or bureaucratic entanglement’ instead of ‘doctrinal assessments.’”
Though the Religion Clauses do not explicitly protect against the burdens of litigation,
proponents of the immunity theory understand the First Amendment as a “structural limit” that prohibits any government influence over churches’ religious affairs in order to preserve total ecclesiastical independence.
On that view, church autonomy must protect religious institutions from the undue influence that results from judicial review of ecclesiastical questions. And immediate appeal must be available to vindicate that immunity when it is wrongly denied.
To bolster their arguments, proponents of the immunity theory analogize church autonomy to qualified immunity.
They describe church autonomy and qualified immunity as rooted in similar “foundational constitutional interests—the former the interest in precluding governmental intervention in religious disputes, and the latter in separation of powers concerns.”
Where qualified immunity protects government officials from suit “because the costs of litigation ‘can be peculiarly disruptive of effective government,’” they argue that church autonomy protects religious institutions from litigation that could disrupt their internal governance and religious decisionmaking.
And both qualified immunity and church autonomy, the argument continues, are threshold issues to be resolved at the outset of a case.
Proponents of the immunity theory also analogize church autonomy to sovereign immunity, casting both as “implicit in the constitutional design.”
Legal scholar Lael Weinberger has argued, for example, that “[b]oth sovereign immunity and church autonomy have a structural character” and “speak to the authority of government . . . to exercise its authority over a distinct and autonomous authority (the state government in the sovereign immunity context, the religious institution in the church autonomy context).”
If one accepts the analogy of church autonomy to either qualified or sovereign immunity, it follows that church autonomy satisfies the requirements for immediate appeal.
Proponents of the immunity theory thus argue that interlocutory decisions denying church-autonomy defenses are final for the purposes of § 1291 and are appealable as collateral orders.
C. Church Autonomy as a Defense to Liability Subject to the Final-Judgment Rule
Despite enthusiastic support from religious institutions and scholars, arguments that church autonomy is an immunity subject to collateral-order review have met with little success in the federal courts. In two extraordinary instances, the Fifth and Seventh Circuits each permitted interlocutory appeals of orders denying church-autonomy defenses, but both circuits have subsequently cabined those decisions to their unique facts.
And the Second, Seventh, and Tenth Circuits have all recently rejected the immunity theory, albeit over considerable dissent.
The circuits instead held that church autonomy is a mere defense to liability that is subject to the final-judgment rule.
In holding that church-autonomy decisions do not give rise to collateral orders, the Second, Seventh, and Tenth Circuits each rebuffed the analogy of church autonomy to qualified and sovereign immunity. But none of the three circuits grounded their analyses in historical understandings of church autonomy or the Religion Clauses. The Second Circuit found the comparison inapt because “a district court’s order denying qualified immunity is an immediately appealable collateral order . . . only ‘to the extent that it turns on an issue of law,’” and the church-autonomy order at issue involved substantial questions of fact.
The Seventh and Tenth Circuits distinguished church autonomy as serving different ends than qualified or sovereign immunity because it protects “only private parties,” not “public officials or unit[s] of government.”
The Seventh and Tenth Circuits thus reasoned that, unlike those immunities, church autonomy does not implicate “the separation of powers, the dignity interest of a State, the efficient operation of the government, or any other public interest” that would be imperiled by the litigation process.
And, both circuits noted, those are the only sorts of “higher interests” the Supreme Court has said “ought to be protected” by the collateral-order doctrine.
Heeding the Supreme Court’s thirty years of “increasingly emphatic instructions” to keep the class of collateral orders “‘small,’ ‘modest,’ and ‘narrow,’”
the Second, Seventh, and Tenth Circuits held that—because church autonomy protects religious institutions only from liability for their religious decisions, not from the burdens of discovery and trial—decisions denying church-autonomy defenses are not immediately appealable as collateral orders.
III. Treating Church Autonomy as an Immediately Appealable Immunity Contravenes Historical Understandings of Church–State Relations
In rejecting the argument that church autonomy is an immunity subject to collateral-order review, the Second, Seventh, and Tenth Circuits largely failed to engage with historical views of the nature and extent of religious institutions’ independence from civil government.
But the Supreme Court has instructed that the Religion Clauses’ protections “must be interpreted by ‘reference to historical practices and understandings.’”
This Part argues that, though missing from the circuit courts’ analyses, understandings of church–state relations in the early Republic support their conclusion that church autonomy is not an immunity from suit. Allowing interlocutory appeals of church-autonomy defenses would thus contravene historical practice. To comport with historical understandings, church autonomy should instead be treated as a deference doctrine that only protects against liability and does not give rise to collateral orders.
As Professors Sarah Barringer Gordon and Kellen Funk have both documented, “extensive legislative and judicial oversight of churches and other religious organizations” was commonplace in the early Republic.
Most states made incorporation generally available to religious societies soon after disestablishing their official churches, starting with New York in 1784.
Because of the immense benefits of the corporate form, which allowed a church to secure “a perpetual legal existence that could hold and transfer property and defend its rights in state courts,” churches incorporated en masse.
In return for these benefits, state legislatures placed strict limits on the amount of land and property churches could own.
Legislatures also “imposed regimes of lay governance” to democratize churches, placing “[c]ontrol of all property and funds . . . in the hands of congregants, not clergy.”
And states required that churches incorporate at the local congregational level, “functionally transform[ing] all denominations into congregational polities” regardless of their allegiance to a central religious authority.
The purpose of this extensive regulation was to prevent churches from operating like sovereign governments. Once states began to disestablish their official churches in the mid-1770s, commentators worried that newly independent churches would become rival sovereigns that could threaten the states.
The risk of such a destabilizing “imperium in imperio,” or “state within the state,” was believed to stem from a “concentration of property and privilege that could insulate an elite [ecclesiastical] class from the will of the sovereign people.”
States aimed to mitigate that risk by treating churches as ordinary corporations, rather than as autonomous sovereigns, and by restricting church corporations’ material wealth and governance structures.
During the early Republic, courts were active participants in this regulatory regime, enforcing limitations on religious corporations. “Frequent judicial interpretation of those laws meant that the internal workings of religious organizations were exposed to scrutiny and judgment in thousands of conflicts that pitted the faithful against each other and against their ministers and priests.”
And “judges often inquired into religious doctrine to decide questions of church polity” or to interpret corporate charters in disputes involving church property.
As a practical matter, then, churches in the early Republic were hardly immune from litigation concerning their religious affairs.
The Supreme Court stamped its approval on the view of churches as private corporations in 1819. In Trustees of Dartmouth College v. Woodward, the Court confronted efforts by the New Hampshire legislature to alter the charter of Dartmouth College—a private religious institution—to exert greater state control over the college.
The Court reasoned that New Hampshire’s acts could be constitutional only if Dartmouth functioned as a part of the civil government, as the state would then be “unrestrained by any limitation . . . imposed by the constitution.”
But the Court rejected this view of chartered religious organizations due to implicit fears that churches might become rival sovereigns. “The unstated assumption,” Funk has explained, was that treating chartered religious organizations as arms of the state “would create the monstrous imperium in imperio” by enabling those religious organizations to exercise state governance powers.
The Court instead held that chartered religious organizations were ordinary private corporations, so New Hampshire’s efforts to alter Dartmouth’s charter violated the Contract Clause.
Given this historical understanding of religious institutions as regulable private corporations, treating church autonomy as an immunity from suit subject to collateral-order review is inappropriate. As discussed in Part I, such immunities typically (1) stem from an explicit statutory or constitutional guarantee or (2) serve the public interest in preserving the effective functioning of or proper allocation of power within government.
The Religion Clauses provide no express protection from the burdens of litigation.
For church autonomy to constitute an immunity such that denial warrants immediate appeal, it must therefore fall in the second category. Indeed, that is why proponents of the immunity theory analogize church autonomy to qualified and sovereign immunity, which serve important public interests in effective government, the separation of powers, and the dignitary interests of sovereign states.
But church autonomy protects only private religious institutions—it cannot serve public interests in the operation and structure of government unless those private institutions are seen as arms of the state. Put another way, treating church autonomy like qualified or sovereign immunity makes sense only if churches are themselves sovereign. That directly contravenes historical understandings of church–state relations from the disestablishment period and vitiates the logic of Dartmouth College.
The better approach is to treat church autonomy as a deference doctrine that bars courts only from overruling ecclesiastical authorities’ answers to religious questions. While church autonomy compels courts to defer to churches’ religious determinations, it permits the judiciary to resolve any remaining secular issues.
In other words, it does not immunize churches from the judicial process. Many of the Supreme Court’s discussions of church autonomy support this view.
And because it parallels the business judgment rule, under which courts defer to corporate directors’ decisions,
it reflects the historical understanding of churches as private corporations.
Whatever the best analogy for the church autonomy doctrine, construing its protections as an immunity from suit akin to sovereign or qualified immunity cannot be squared with historical understandings of church–state relations in the early Republic. Decisions denying church-autonomy defenses should thus not be immediately appealable as collateral orders.
Conclusion
The Second, Seventh, and Tenth Circuits were right to reject immediate appeals of interlocutory decisions denying church-autonomy defenses. In light of the Supreme Court’s warnings against the expansion of the collateral-order doctrine, only the clearest immunities from suit warrant creating a new category of collateral orders. Church autonomy does not fit the bill. Historical practice in the early Republic, when churches were often subjected to extensive legislative and judicial interference in their religious affairs, repudiates the notion that churches were immunized against the burdens of litigation. And treating church autonomy as the kind of immunity eligible for collateral-order review tacitly treats religious institutions as units of government, creating the potential for ecclesiastical states-within-the-state that cases like Dartmouth College aimed to prevent. The more historically grounded approach is to view church autonomy as a deference doctrine that cannot give rise to collateral-order appeals.