                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                                  April 5, 2017 Session

        CHURCH OF GOD IN CHRIST, INC., ET AL. v. L. M. HALEY
                    MINISTRIES, INC., ET AL.

                   Appeal by Permission from the Court of Appeals
                        Chancery Court for Fayette County
                     No. 15815 Martha Brasfield, Chancellor
                      ___________________________________

              No. W2015-00509-SC-R11-CV – Filed September 21, 2017
                     ___________________________________


HOLLY KIRBY, J., concurring separately.

        I am pleased to concur in the well-written majority opinion but write separately on
the question of whether the ecclesiastical abstention doctrine is a bar to subject matter
jurisdiction or an affirmative defense.

        For now, I concur in the majority’s conclusion that the ecclesiastical abstention
doctrine is a bar to subject matter jurisdiction, because the courts of this State have
consistently viewed it as such and the United States Supreme Court did not hold to the
contrary in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565
U.S. 171 (2012). I have doubts, however, about whether the United States Supreme
Court would view the ecclesiastical abstention doctrine as a bar to subject matter
jurisdiction if presented with the question after Hosanna-Tabor.

       As explained by the majority, the ecclesiastical abstention doctrine and the
ministerial exception both derive from the Religion Clauses of the First Amendment of
the United States Constitution. In Hosanna-Tabor, the United States Supreme Court held
that the younger of the two siblings—the ministerial exception—is an affirmative
defense, not a subject matter jurisdictional bar. Id. at 195 n.4. The majority surmises that
there would be a different result as to the ecclesiastical abstention doctrine, based on two
things. First, the majority appears to interpret Hosanna-Tabor’s holding on the
ministerial exception as premised in part on the fact that jurisdiction in that case was
based on federal civil rights statutes, as opposed to other bases for jurisdiction. Second,
the majority appears to read Watson v Jones, 80 U.S. 679, 727 (1871), as holding
affirmatively that the ecclesiastical abstention doctrine is a subject matter jurisdictional
bar. I harbor doubts about both bases for the majority’s holding.
       First, the difference between the basis for jurisdiction in Hosanna-Tabor and the
basis for jurisdiction in this case seems to be of no moment. Jurisdiction in Hosanna-
Tabor arose from federal civil rights statutes, while jurisdiction in the instant case is
rooted in state courts’ common-law jurisdiction over property disputes. The majority
does not explain why this variance would cause the ecclesiastical abstention doctrine to
be treated differently from the ministerial exception. The state courts’ historic common
law jurisdiction over property disputes, dating back to English common law, is certainly
as solid a basis for jurisdiction as any federal statute. On this issue, I view the
differentiation in basis for jurisdiction as a distinction without a difference.

        Second, in a case that applies Watson, it appears that the U.S. Supreme Court held
that the ecclesiastical abstention doctrine is not a bar to subject matter jurisdiction, albeit
in a brief way. In Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 11
(1929), the petitioner claimed, pursuant to a testamentary trust, that he was entitled to be
appointed to a collative (lay) chaplaincy and also entitled to income under the trust. The
trial court ordered the archbishop to appoint the petitioner to the chaplaincy, and the
Supreme Court of the Philippine Islands reversed. Id. On appeal to the United States
Supreme Court, the contention that the Philippine courts lacked subject matter
jurisdiction because the case involved ecclesiastical matters was summarily rejected:

       The archbishop interposes here, as he did below, an objection to the
       jurisdiction of the Philippine courts. He insists that, since the chaplaincy is
       confessedly a collative one, its property became spiritual property of a
       perpetual character subject to the jurisdiction of the ecclesiastical forum,
       and that thereby every controversy concerning either the right to
       appointment or the right to the income was removed from the jurisdiction
       of secular courts. The objection is not sound. The courts have jurisdiction
       of the parties. For the archbishop is a juristic person amenable to the
       Philippine courts for the enforcement of any legal right; and the petitioner
       asserts such a right. There is jurisdiction of the subject-matter; for the
       petitioner’s claim is, in substance, that he is entitled to the relief sought as
       the beneficiary of a trust.

               The fact that the property of the chaplaincy was transferred to the
       spiritual properties of the archbishopric affects not the jurisdiction of the
       court, but the terms of the trust. Watson v. Jones, 13 Wall. 679, 714, 729,
       20 L. Ed. 666. The archbishop’s claim in this respect is that by an implied
       term of the gift, the property, which was to be held by the church, should be
       administered in such manner and by such persons as may be prescribed by
       the church from time to time. Among the church’s laws, which are thus
       claimed to be applicable, are those creating tribunals for the determination
       of ecclesiastical controversies. Because the appointment is a canonical act,

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       it is the function of the church authorities to determine what the essential
       qualifications of a chaplain are and whether the candidate possesses them.
       In the absence of fraud, collusion, or arbitrariness, the decisions of the
       proper church tribunals on matters purely ecclesiastical, although affecting
       civil rights, are accepted in litigation before the secular courts as
       conclusive, because the parties in interest made them so by contract or
       otherwise.

Id. at 15-16 (emphasis added) (footnote citing Watson v. Jones omitted). The Court in
Gonzalez agreed with the Philippine Supreme Court that the trust contemplated that
church authorities, in their discretion, would determine the qualifications of the
chaplaincy, so it affirmed. Id. at 15- 17.

        The precedential value of Gonzalez is muddied somewhat by the fact that dicta in
the Gonzalez opinion, not pertinent to our appeal, was later rejected by the Supreme
Court. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 712 (1976)
(rejecting Gonzalez’s “suggested ‘fraud, collusion, or arbitrariness’ exception to the
Watson rule”). Moreover, Gonzalez has been cited only a few times. However, I find no
case that overrules the Gonzalez holding on subject matter jurisdiction, so it appears that
holding remains intact.

       In framing the question of whether the ecclesiastical abstention doctrine is a
subject matter jurisdictional bar or an affirmative defense, the majority comments: “An
affirmative defense generally is deemed waived unless timely raised in an answer or
responsive pleading.” While this statement is generally true, the generalization does not
apply to the type of affirmative defense Hosanna-Tabor deemed the ministerial exception
to be.

        Hosanna-Tabor held that the ministerial exception “operates as an affirmative
defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the
issue presented by the exception is ‘whether the allegations the plaintiff makes entitle
him to relief,’ not whether the court has ‘power to hear [the] case.’” Hosanna-Tabor, 565
U.S. at 195 n.4. In other words, Hosanna-Tabor holds that the ministerial exception is
treated as failure to state a claim upon which relief can be granted. Under Rule 12.08 of
the Tennessee Rules of Civil Procedure, the defense of failure to state a claim need not be
raised in an initial responsive pleading or in an answer, but “may also be made by a later
pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on
the merits. . . .” Tenn. R. Civ. P. 12.08. This Court has held that the trial court may raise
failure to state a claim upon which relief can be granted sua sponte, in the absence of any
motion, and may dismiss a claim on that basis. See Huckeby v. Spangler, 521 S.W.2d
568, 571 (Tenn. 1975). Thus, even if the ecclesiastical abstention doctrine were deemed
an affirmative defense, it would not be waived if it were not raised in an answer or
responsive pleading, and the court could raise the issue sua sponte if the parties did not.

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This addresses the risk that a court would find itself unable to avoid deciding
ecclesiastical matters, even if the ecclesiastical abstention doctrine were deemed not to be
a subject matter jurisdictional bar.

        The U.S. Supreme Court’s decision in Hosanna-Tabor offers little basis for
prognosticating that the Court would treat the ecclesiastical abstention doctrine
differently from the ministerial exception. Indeed, the footnote in Hosanna-Tabor that
holds that the ministerial exception is an affirmative defense blurs the line between the
ecclesiastical abstention doctrine and the ministerial exception. One of the cases cited in
footnote 4 in Hosanna-Tabor, cited to demonstrate the split of authority among the
circuits on whether the ministerial exception is a bar to subject matter jurisdiction, in fact
appears to discuss the ecclesiastical abstention doctrine. Footnote 4 to Hosanna-Tabor
cites Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 654 (10th Cir.
2002), which involved a youth minister who claimed that church statements regarding her
homosexual relationship amounted to sexual harassment. While the facts in Bryce would
suggest the ministerial exception, the court in that case addressed the church’s assertion
of the “church autonomy defense,” i.e., the ecclesiastical abstention doctrine:

               Here, St. Aidan’s Church raised the church autonomy defense on a
       motion to dismiss for lack of subject matter jurisdiction. The motion would
       more appropriately be considered as a challenge to the sufficiency of
       plaintiff’s claims under Rule 12(b)(6). If the church autonomy doctrine
       applies to the statements and materials on which plaintiffs have based their
       claims, then the plaintiffs have no claim for which relief may be granted.

Id. at 654.

        The majority asserts that the United States Supreme Court “has described the
ecclesiastical abstention doctrine in a manner that suggests it constitutes a subject matter
jurisdictional bar, where applicable.” In support, it cites a passage in which the Watson
Court referred to a matter in which “a subject-matter of dispute, strictly and purely
ecclesiastical in its character,—a matter over which the civil courts exercise no
jurisdiction. . . .” Watson, 80 U.S. at 733. Respectfully, this language is equally
consistent with treating the ecclesiastical abstention doctrine as failure to state a claim
upon which relief can be granted. Indeed, even Watson, which was decided under the
common law rather than the First Amendment,1 does not describe the doctrine as
requiring instant dismissal; rather, it describes it as requiring courts to accept as binding
the decisions of ecclesiastical bodies on ecclesiastical questions:

       1
         Watson was decided “before judicial recognition of the coercive power of the Fourteenth
Amendment to protect the limitations of the First Amendment against state action.” Kedroff v. St.
Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 115 (1952).


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       “[W]henever the questions of discipline, or of faith, or ecclesiastical rule,
       custom, or law have been decided by the highest of these church
       judicatories to which the matter has been carried, the legal tribunals must
       accept such decisions as final, and as binding on them, in their application
       to the case before them.”

Watson, 80 U.S. at 727.

       This sounds like failure to state a claim upon which relief can be granted. Thus,
true to its name, under the ecclesiastical abstention doctrine, the court chooses to
“abstain,” or stay its hand, if reaching the merits on a controversy before it would require
the court to wade into ecclesiastical matters. Moreover, the majority’s reliance on this
language in Watson does not take into account the Supreme Court’s later decision in
Gonzalez, which cites Watson. Gonzalez, 280 U.S. at 15-16.

        For all of these reasons, it is far from clear whether the ecclesiastical abstention
doctrine is a bar to subject matter jurisdiction or whether it is considered an affirmative
defense, failure to state a claim upon which relief can be granted. For now, however, I
will concur in the majority’s decision to continue to view it as a subject matter
jurisdictional bar.




                                                 ______________________________
                                                 HOLLY KIRBY, JUSTICE




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