Colorado Christian school appeals to Supreme Court

At first, Faith Bible Chapel leaders supported Gregory Tucker’s plans for a chapel talk on faith and racism at the church’s Faith Christian Academy in Arvada, Colo. That changed on Jan. 12, 2018, when Tucker ignited controversy by calling students and parents racists and speaking about “white privilege” and “systemic bias,” phrases commonly associated with what is called “anti-racism.” By the end of February, Tucker was out—fired for his role in the chapel talk and for insubordination over his public disagreement with church leaders.

When Tucker sued the church in June 2019, Faith Bible urged the court to dismiss the case under the ministerial exception, a rule intended to prevent courts from second-guessing internal church decisions. Rather than resolve the issue at the outset, the court set the case for jury trial and allowed the parties to take depositions of witnesses and use other, often expensive, means of discovery. The 10th U.S. Circuit Court of Appeals upheld that decision in a sharply divided ruling in June 2022.

Faith Bible filed a petition with the Supreme Court on Friday. The church asks the court to reject the appeals court’s conclusion that the ministerial exception does not provide immunity from the trial process. “This internal dispute is no business of the judiciary or civil authorities,” attorneys for the church argue. “It is not a proper subject for depositions and discovery, cross-examinations, lawyers’ arguments, or jury deliberations.”

Pointing to the free exercise and establishment clauses of the First Amendment, the petition’s authors reference history and other court cases to build an argument for judicial noninterference.

“From the first ministerial exception cases over 50 years ago, the exception has been understood as a threshold legal issue, akin to an immunity,” they write.

That also means that the decision of whether to dismiss a case under the ministerial exception is a legal matter for the judge, not a jury. The dismissal decision is subject to immediate appeal, not appeal at the end of a trial.

A 2020 Supreme Court ruling clarified the reach of the doctrine of ministerial exception. In Our Lady of Guadalupe School v. Morrissey-Berru, justices ruled that the ministerial exception extends to employment decisions at religious schools for teachers who perform “vital religious duties”—not just ministers.

Questions about the ministerial exception also arise in Tucker’s claim against Faith Bible. Tucker portrays himself as teaching secular subjects, despite his chaplain title, his role in providing spiritual guidance to students, and his teaching of Bible courses. He characterizes chapel services as “assemblies or symposiums” covering “matters of interest.”

“Playing word games is now the strategy du jour for plaintiffs trying to conjure fact disputes in ministerial exception cases across the country,” lawyers for the church contend. They point to similar cases where courts have rejected attempts to recast religious duties in secular terms.

Daniel Blomberg, an attorney with the Becket Fund for Religious Liberty that represents Faith Bible, said that unlike Our Lady, this case primarily addresses the procedure employed by courts in addressing a ministerial exception claim. “Does it protect religious groups from government interference in disputes over the employment relationship?” asks Blomberg. “Or does it only protect religious groups from liability for a dispute?”

Blomberg said that if the ministerial exception only protects from liability, years of litigation could ensue. Churches and other religious organizations could spend substantial amounts of time, energy, and efforts on lawsuits instead of ministry. “That’s far more than most nonprofits can afford, and particularly religious nonprofits that exist based on the goodwill of their community,” he added.

Bad law can have a ripple effect on other courts’ decisions. Faith Bible’s attorneys point to rulings by the 2nd U.S. Circuit Court of Appeals and a Massachusetts state appeals court that quickly adopted the 10th Circuit’s reasoning. And yet Blomberg referred to multiple rulings by other federal appeals courts and state high courts agreeing with Faith Bible that the ministerial exception offers protection from litigation.

For now, the church must wait. Blomberg expects the Supreme Court to decide whether to hear the case by the end of the current term this summer. But even if it accepts the case, a ruling would not be likely before 2024.

Five years on, Gregory Tucker is far from letting this go. In a Facebook post in December 2022, he celebrated what he referred to as the school’s impending dissolution. Blomberg clarified that Faith Bible and the K-8 portion of the school will remain open, while the 9-12 grade high school will be operated by Grace Church of Arvada with essentially the same staff and students.

Far from avoiding long and drawn out litigation, Faith Bible Chapel leaders are persevering. Blomberg said that the school had been willing to find ways to resolve the case. Even a financial settlement would have been a challenge for a nonprofit religious school, he said, but Tucker’s demands went further, asking that the school embrace controversial diversity, inclusion, and equity principles.

“Obviously these demands go to the structure and internal organization of a religious ministry,” said Blomberg. “Again, that’s just exactly the kind of thing that federal courts should neither be involved in nor allow their power to be used as leverage to try to gain those sorts of results.”