                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                                  PUBLISH
                                                           APR 30 2002
                UNITED STATES COURT OF APPEALS
                                                      PATRICK FISHER
                                                                Clerk
                             TENTH CIRCUIT



LEE ANN BRYCE; SARA D. SMITH, The
Reverend,

           Plaintiffs - Appellants,

     v.                                         No. 00-1515

EPISCOPAL CHURCH IN THE DIOCESE OF
COLORADO; SAINT AIDAN'S EPISCOPAL
CHURCH; THE RIGHT REVEREND
WILLIAM JERRY WINTERROWD, in his
official capacity and as an individual; THE
REVEREND TINA ANDERSON, in her official
capacity and as an individual; THE REVEREND
DONALD HENDERSON, in his official
capacity and as an individual; THE REVEREND
NEYSA ELLGREN, in her official capacity and
as an individual; and MEMBERS OF THE
VESTRY OF SAINT AIDAN’S EPISCOPAL
CHURCH, KARLA ALLEN, TRACY
ENHOLM, DAVID HUFF, MARTI INGRAM,
ED KASE, MARGIE MILLER, ANDY
MORRIS, BAL PATTERSON, VIRGINIA
PATTERSON, NORM PILGRIM, CAROL
RASMUSSEN, CAROL STOTT, MARY
WILDER, and RICHARD WOLNIEWICE, in
their official capacities and as individuals,

           Defendants - Appellees,

THE ASSOCIATION OF CHRISTIAN
SCHOOLS INTERNATIONAL; CAMPUS
CRUSADE FOR CHRIST; THE CHRISTIAN
LEGAL SOCIETY CENTER FOR LAW AND
RELIGIOUS FREEDOM; THE CHURCH OF
JESUS CHRIST OF LATTER-DAY SAINTS;
THE COLORADO BAPTIST GENERAL
CONVENTION (SOUTHERN BAPTIST); THE
COLORADO CATHOLIC CONFERENCE;
THE COLORADO DISTRICT CHURCH OF
THE NAZARENE; THE COLORADO
MUSLIM SOCIETY; THE COLORADO TASK
FORCE ON RELIGIOUS FREEDOM; THE
FIRST CHURCH OF CHRIST, SCIENTIST;
THE GENERAL CONFERENCE OF
SEVENTH-DAY ADVENTISTS; THE
GENERAL COUNCIL ON FINANCE AND
ADMINISTRATION OF THE UNITED
METHODIST CHURCH; THE ISLAMIC
SOCIETY OF COLORADO SPRINGS;
LUTHERAN CHURCH - MISSOURI SYNOD;
MID-AMERICA UNION CONFERENCE OF
SEVENTH-DAY ADVENTISTS; NATIONAL
FEDERATION FOR CATHOLIC YOUTH
MINISTRY; THE NAVIGATORS; NEW LIFE
CHURCH; THE NET, formerly The Colorado
Springs Association of Evangelicals;
PRESBYTERIAN CHURCH (U.S.A.); THE
PUEBLO ASSOCIATION OF
EVANGELICALS; THE ROCKY MOUNTAIN
CONFERENCE OF SEVENTH-DAY
ADVENTISTS; THE ROCKY MOUNTAIN
CONFERENCE OF THE UNITED
METHODIST CHURCH; THE ROCKY
MOUNTAIN RABBINICAL COUNCIL; THE
ROCKY MOUNTAIN SYNOD,
EVANGELICAL LUTHERAN CHURCH OF
AMERICA; UNITED STATES CATHOLIC
CONFERENCE; YOUNG LIFE,

          Amici Curiae.




                               -2-
        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                    (D. Ct. No. 00-WY-1216-CB)


Patricia S. Bangert, Powers Phillips, P.C., Denver, Colorado, appearing for
Appellants.

L. Martin Nussbaum (Samuel M. Ventola, with him on the brief), Colorado
Springs, Colorado, appearing for Appellees.

Von G. Keetch and Alexander Dushku, Kirton & McConkie, Salt Lake City, Utah,
filed an amicus curiae brief in support of appellees Episcopal Church in the
Diocese of Colorado, et al.


Before TACHA, Chief Judge, KELLY, and HARTZ, Circuit Judges.


TACHA, Chief Circuit Judge.

      Plaintiffs Lee Ann Bryce and Reverend Sara Smith brought a sexual

harassment suit against St. Aidan’s Episcopal Church and others for remarks

made about homosexuals and about the plaintiffs’ homosexual activities. St.

Aidan’s Church asserts that the First Amendment bars plaintiffs’ sexual

harassment claims because the remarks were made as part of ecclesiastical

discussions on church policy towards homosexuals. The district court agreed,

granting summary judgment for the defendants.

      The plaintiffs ask this court to insert itself into a theological discussion

about the church’s doctrine and policy towards homosexuals – one of the most

important ongoing dialogues in many churches today. We decline to do so.

                                         -3-
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                                    I. Background

      St. Aidan’s Episcopal Church hired Lee Ann Bryce in 1997 to serve as its

Youth Minister. Bryce was a Christian and had substantial experience in church

leadership, though she was neither an ordained minister nor a member of the

Episcopal Church. Bryce began working as St. Aidan’s Youth Minister on

September 1, 1997. Bryce led the youth group in a variety of activities, including

weekly meetings, service projects, recreational activities, social events, visits to

other churches, and prayer. In addition, Bryce served as an assistant music

minister and as a liaison between the youth and other parish ministries.

      On November 21, 1998, Bryce had a civil commitment ceremony with her

partner and co-plaintiff Reverend Sara Smith at the First Congregational Church

of Christ in Boulder, where Smith is an ordained minister. Smith is not

associated with St. Aidan’s or the Episcopal Church in any way.

      In response to the commitment ceremony, co-defendants Reverend Donald

Henderson, Reverend Neysa Ellgren, and Mary Wilder, a member of the Vestry

and chair of St. Aidan’s Youth Board, met with Bryce in January 1999. They

informed her that she would be terminated as Youth Minister effective June 1999

because she was violating Episcopal doctrine, which teaches that people should be

married and faithful or single and celibate. Defendant Henderson proposed that,


                                          -4-
after June 1999, Bryce take a position as Adult Christian Education Coordinator

and Assistant Music Director until the end of 1999, after which she would be

terminated by St. Aidan’s.

      Episcopal doctrine on homosexuality is articulated in the Lambeth

Resolution, which is the result of a conference of bishops from the worldwide

Anglican communions held every ten years in Lambeth, England. The 1998

Lambeth Resolution provides that “[t]his conference . . . in view of the teaching

of Scripture, upholds faithfulness in marriage between a man and a woman in

lifelong union, and believes that abstinence is right for those who are not called to

marriage.” The resolution also “reject[s] homosexual practice as incompatible

with Scripture, [but] calls on all our people to minister pastorally and sensitively

to all irrespective of sexual orientation and to condemn irrational fear of

homosexuals.” The resolution further provides that the conference “cannot advise

the legitimizing or blessing of same-sex unions, nor the ordination of those

involved in such unions.”

      Rev. Henderson sent several letters and memoranda to the Vestry and other

leaders of St. Aidan’s to inform them of the situation. In a letter dated January 4,

1999, Rev. Henderson reported: “[Bryce] states that she is a lesbian and that she

chooses to live in a sexual relationship with Rev. Sara Smith.” He explained his

proposal that Bryce change positions in June 1999 and end her employment at the


                                          -5-
end of 1999. He also warned that the situation could be divisive, and he asked

recipients to read attached information packets. According to Bryce, these

materials stated that homosexuality is a sin, that homosexuals are unfit to work

with children, that homosexuals are promiscuous, that modern homosexual

practices are part of demonic forms of idolatry, and that homosexuals suffer from

loathsome diseases.

      At a Vestry meeting on February 9, 1999, church leaders decided to host

four parish meetings to inform the congregation about homosexuality and Bryce’s

employment situation. Bryce supported the idea of such a parish dialogue, though

she objected to the format of the meetings. St. Aidan’s chose to invite active

members of the church, as well as some college students involved in an

“Episcopalians on Campus” ministry. Callers invited church members by phone,

following a script stating that the meetings were being held to discuss the Youth

Minister being “in a relationship that is outside the core teaching of our church

about marriage.”

      St. Aidan’s invited about one-fourth of the parish’s active members to each

of the four meetings, which were held February 25-28, 1999. At the meetings, St.

Aidan’s distributed copies of the Lambeth Resolution and a handout. The

handout stated that the Rev. Henderson was attempting to reach a compromise

that would allow him to be faithful to the Bishop and the Lambeth Resolution,


                                         -6-
and also to serve the best interest of the youth, the Youth Minister, and St.

Aidan’s. The handout further stated that the meetings were intended to strengthen

parish communications, that all remarks should be “as positive and affirming as

possible,” and that the parishioners should keep the discussions confidential. The

meetings started with prayer. A professional facilitator then instructed the

parishioners on respectful conversation. Rev. Henderson and Bryce each made a

ten-minute opening statement, after which parishioners were allowed to ask

questions and make comments. Rev. Henderson had suggested that Smith attend

the meetings to provide support for Bryce, and she attended at Bryce’s invitation.

      The parish meetings addressed the issue of homosexuality and the church in

general, as well as Bryce and Smith. The overwhelming majority of those who

spoke at the meetings supported Bryce, but there were also a number of

statements to which Bryce objected, including the following:

•     “Lee Ann is living in a sexual relationship outside of Christian marriage.”

•     “When did you start having sex with Sara?”

•     “Gay people are very nice, but it worries [me] why gay people want to work
      with children.”

•     “My husband and I were always worried about the paper boy coming in,
      and we always protected our children from him.”

•     “I am sorry that Lee Ann has chosen this lifestyle which precludes her from
      working with children.”

•     “Of course Father Don is right, we can’t let these gay people come into the

                                         -7-
      church and work with our children.”

•     “Homosexual people engaged in same sex relationships because
      heterosexual relationships were too difficult, it was too difficult to make a
      heterosexual marriage work . . . .”

•     One individual allegedly used the term “lesbian” with a derisive tone.

Bryce remained at St. Aidan’s until June 1999, when she was terminated as Youth

Minister and left the church.

      Based on these statements, as well as statements that Rev. Henderson made

in his letters and memoranda, Bryce and Smith claimed that they had been

sexually harassed. Plaintiff Bryce alleged three causes of action: Title VII of the

Civil Rights Act of 1964; 42 U.S.C. § 1985(3); and 42 U.S.C. § 1986. Plaintiff

Smith brought claims only under 42 U.S.C. §§ 1985(3) and 1986.

      The case was filed in the U.S. District Court for the District of Colorado

and assigned to Judge Clarence Brimmer. Sua sponte, Judge Brimmer raised the

issue of whether he should recuse himself from the case because he is a member

of an Episcopal church in Cheyenne, Wyoming. He concluded that a reasonable

person knowing all the relevant facts would not harbor doubts about his

impartiality in the case, and declined to recuse himself. The plaintiffs moved the

court to reconsider its decision, but the court denied the motion.

      Defendants filed a Rule 12(b)(1) motion to dismiss for lack of subject

matter jurisdiction, contending that plaintiffs’ claims were barred by the First


                                         -8-
Amendment Free Exercise and Establishment Clauses. The district court

converted defendants’ Rule 12(b)(1) motion to dismiss into a Rule 56(c) motion

for summary judgment. The court granted the motion and dismissed all claims,

finding that they were precluded by the church autonomy doctrine of the First

Amendment.

                                   II. Discussion

      On appeal, plaintiffs challenge: (1) conversion of the defendants’ motion to

dismiss into a motion for summary judgment; (2) the application of the church

autonomy doctrine; and (3) the district court judge’s refusal to recuse himself

from the case.

A.    Conversion of Motion to Dismiss

      Both parties assert that the district court erred in converting defendants’

12(b)(1) motion to dismiss into a Rule 56(c) motion for summary judgment. As a

general rule, a 12(b)(1) motion may not be converted into a Rule 56 motion for

summary judgment. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987).

      There is an exception to the general rule against conversion, however, when

the defendants’ underlying challenge on a 12(b)(1) motion is not to jurisdiction,

but to the sufficiency of the plaintiffs’ claim: “Defendants often move to dismiss

for lack of subject matter jurisdiction when they are actually challenging the

legitimacy of plaintiff’s claim for relief. When outside evidence is presented to


                                         -9-
support a Rule 12(b)(1) motion of this type, the court will bring the conversion

provision [requiring conversion of a 12(b)(6) motion into a Rule 56 motion] into

operation.” 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1366, at 485-86 n.9 (2d ed. 1990) (citing cases); see also Malak v.

Associated Physicians, Inc., 784 F.2d 277, 279-80 (7th Cir. 1986). The crucial

element is the substance of the motion, not whether it is labeled a Rule 12(b)(1)

motion rather than 12(b)(6). 5A Wright & Miller § 1366, at 485 (“It is not

relevant how the defense is actually denominated.”).

      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. In this sense, the assertion that the

First Amendment precludes the sexual harassment suit is similar to a government

official’s defense of qualified immunity, which is frequently asserted in a motion

to dismiss under Rule 12(b)(6) or Rule 56. See, e.g., Medina v. Cram, 252 F.3d

1124, 1131 (10th Cir. 2001) (calling qualified immunity “a question of law to be




                                        -10-
resolved at the earliest possible stage of litigation”). 1

       We review for an abuse of discretion a district court’s decision to consider

evidence beyond the pleadings and convert a motion to dismiss to a motion for

summary judgment. Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th

Cir. 1998).

       St. Aidan’s attached 46 exhibits in support of its motion, including

affidavits, deposition testimony, and other documents, thus triggering conversion

to a Rule 56 motion. Fed. R. Civ. P. 12(b) (“If, [on a 12(b)(6) motion], matters

outside the pleading are presented to and not excluded by the court, the motion

shall be treated as one for summary judgment . . . .”). To properly convert a Rule

12(b) motion, the trial court is required to notify the parties of the conversion so

that they may present all materials made relevant by Rule 56. Whitesel v.

Sengenberger, 222 F.3d 861, 866 (10th Cir. 2000). Both St. Aidan’s Church and

plaintiffs received ample notice from the district court of the conversion and

submitted numerous exhibits beyond the pleadings.



       1
         Of course, the doctrines and their inquiries are quite different, as are the
reasons for addressing them early in the litigation process. Qualified immunity
“avoid[s] excessive disruption of government and permit[s] the resolution of
many insubstantial claims on summary judgment.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). As we explain below, the church autonomy doctrine, in a case
like this one, protects a church’s Free Exercise rights. By resolving the question
of the doctrine’s applicability early in litigation, the courts avoid excessive
entanglement in church matters.

                                           -11-
      We therefore find that the district court did not abuse its discretion in

converting the defendants’ motion to dismiss into a motion for summary

judgment.

B.    Church Autonomy Doctrine

      On summary judgment, the district court dismissed plaintiffs’ claims as

barred by the church autonomy doctrine of the First Amendment. In its ruling, the

court stated that the courts have “essentially no role in determining ecclesiastical

questions, or religious doctrine and practice.”

      We review the grant of summary judgment de novo, applying the same

standard as the district court. Wark v. United States, 269 F.3d 1185, 1187 (10th

Cir. 2001). Summary judgment is appropriate when there is no genuine issue of

material fact, viewing the evidence in the light most favorable to the nonmoving

party. Id.

      Courts have held that churches have autonomy in making decisions

regarding their own internal affairs. This church autonomy doctrine prohibits

civil court review of internal church disputes involving matters of faith, doctrine,

church governance, and polity. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94,

116-17 (1952). The doctrine is rooted in the First Amendment’s Free Exercise

and Establishment Clauses. Bollard v. Cal. Province of the Soc’y of Jesus, 211

F.3d 1331, 1332 (9th Cir. 2000) (order denying rehearing en banc) (Wardlaw, J.,


                                         -12-
dissenting) (“Though the concept originated through application of the Free

Exercise Clause, the Supreme Court has held that the Establishment Clause also

protects church autonomy in internal religious matters.”); see also Douglas

Laycock, Towards a General Theory of the Religion Clauses: The Case of Church

Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373,

1381-84 (1981) (arguing that church autonomy is protected by the Free Exercise

Clause rather than the Establishment Clause because it protects against burdens or

restrictions on religion, whereas the Establishment Clause prevents sponsorship

and active involvement of the government in religion).

      The doctrine is also rooted in “a long line of Supreme Court cases that

affirm the fundamental right of churches to ‘decide for themselves, free from

state interference, matters of church government as well as those of faith and

doctrine.’” EEOC v. Catholic Univ. of Am., 83 F.3d 455, 462 (D.C. Cir. 1996)

(quoting Kedroff, 344 U.S. at 116). The church autonomy line of cases begins

with Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871), in which the Court declined

to intervene in a property dispute between two factions of a church. The Court

found that secular courts are bound by the decision of the highest church

judicatory in internal matters of faith or ecclesiastical rule. Id. at 727.

      The Court applied the church autonomy principle again in Gonzales v.

Roman Catholic Archbishop, when it upheld a church’s right to determine


                                          -13-
conclusively the essential qualifications of a chaplain and whether a candidate

possessed them. 280 U.S. 1, 16 (1929). The Court stated, “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 16.

        In Kedroff v. St. Nicholas Cathedral, the Court struck down as

unconstitutional a statute changing who in the church would control a cathedral.

344 U.S. 94. In its ruling, the Court interpreted Watson as guaranteeing churches

the “power to decide for themselves, free from state interference, matters of

church government as well as those of faith and doctrine.” Id at 116. The Court

went on to recognize the church autonomy principle announced by Watson and

Gonzales as a constitutional rule arising out of the Free Exercise Clause of the

First Amendment, stating that “[f]reedom to select the clergy . . . [has] federal

constitutional protection as a part of the free exercise of religion against state

interference.” Id. In another dispute for control of the St. Nicholas Cathedral,

the Court found that the constitutional prohibition against interfering with the

church’s free exercise of religion applied to the judiciary as well as the

legislature. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191 (1960).

      The Court has made clear that the constitutional protection extends beyond


                                          -14-
the selection of clergy to other internal church matters. In Serbian Eastern

Orthodox Diocese v. Milivojevich, for example, the Court held that the First

Amendment church autonomy doctrine “applies with equal force to church

disputes over church polity and church administration.” 426 U.S. 696, 710

(1976). In Milivojevich, the Court declined to intervene where the Mother

Church had defrocked a bishop and reorganized the diocese.

      The principles articulated in the church autonomy line of cases also apply

to civil rights cases. For example, courts have recognized a ministerial exception

that prevents adjudication of Title VII employment discrimination cases brought

by ministers against churches. E.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455

(D.C. Cir. 1996); McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). The

right to choose ministers is an important part of internal church governance and

can be essential to the well-being of a church, “for perpetuation of a church’s

existence may depend upon those whom it selects to preach its values, teach its

message, and interpret its doctrines both to its own membership and to the world

at large.” Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d

1164, 1168 (4th Cir. 1985).

      The Supreme Court’s decision in Employment Division v. Smith, 494 U.S.

872 (1990) does not undermine the principles of the church autonomy doctrine.

In Smith, the Court found that laws burdening individuals’ religious practices


                                        -15-
need not be justified by a compelling governmental interest if they are neutral and

generally applicable. Id. at 879. Several circuits have examined whether the

ministerial exception survives in light of Smith, and each has concluded that it

does. EEOC v. Roman Catholic Diocese, 213 F.3d 795, 800 n.* (4th Cir. 2000);

Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299, 1302-04

(11th Cir. 2000); Combs v. Central Tex. Annual Conference of the United

Methodist Church, 173 F.3d 343, 348-50 (5th Cir. 1999); Catholic Univ., 83 F.3d

at 461-63. These courts reason that, unlike Smith, the ministerial exception

addresses the rights of the church, not the rights of individuals. Catholic Univ.,

83 F.3d at 462. In addition, the ministerial exception cases rely on a long line of

Supreme Court cases affirming the church autonomy doctrine, which protects the

fundamental right of churches to decide for themselves matters of church

government, faith, and doctrine. Id. These cases’ rationale extends beyond the

specific ministerial exception to the church autonomy doctrine generally, and we

therefore find that the church autonomy doctrine remains viable after Smith.

      The church autonomy doctrine is not without limits, however, and does not

apply to purely secular decisions, even when made by churches. Before the

church autonomy doctrine is implicated, a threshold inquiry is whether the alleged

misconduct is “rooted in religious belief.” Wisconsin v. Yoder, 406 U.S. 205,

215 (1972). As the Fourth Circuit stated:


                                         -16-
      Of course churches are not – and should not be – above the law.
      Like any other person or organization, they may be held liable for
      their torts and upon their valid contracts. Their employment
      decisions may be subject to Title VII scrutiny, where the decision
      does not involve the church’s spiritual functions.


Rayburn, 772 F.2d at 1171. Similarly, the Florida Supreme Court recently held

that the First Amendment does not protect a church from a negligent hiring claim

if the church’s actions were not motivated by sincerely held religious beliefs or

practices. Malicki v. Doe, 2002 WL 390021, at *8 (Fla. Mar. 14, 2002). The

issue in the present case, then, is whether the dispute is ecclesiastical or secular:

      The question that we must resolve in the case before us, therefore, is
      whether the dispute . . . is an ecclesiastical one about “discipline,
      faith, internal organization, or ecclesiastical rule, custom or law,” or
      whether it is a case in which we should hold religious organizations
      liable in civil courts for “purely secular disputes between third
      parties and a particular defendant, albeit a religiously affiliated
      organization.”

Bell v. Presbyterian Church, 126 F.3d 328, 331 (4th Cir. 1997) (citations

omitted). Bryce and Smith complain about allegedly sexually harassing remarks

made in written correspondence between Rev. Henderson and other church

leaders, and remarks made at a series of church meetings. We must determine

whether the defendants’ alleged statements were ecclesiastical statements

protected by church autonomy or purely secular ones.

      After Bryce and Smith’s civil commitment ceremony, Rev. Henderson

wrote other church leaders in January 1999 to explain his proposal that Bryce stop

                                          -17-
serving as Youth Minister after June 1999 and that she leave church employment

altogether at the end of 1999. In his letters, Rev. Henderson stated that the issue

of homosexuality is “[o]ne of the most critical and difficult subjects of our time.”

He attached to his January 8, 1999 letter materials on homosexuality provided by

plaintiff Smith and materials he had gathered himself, including the Lambeth

Resolution. He stated in the letter that he submitted these materials “with the

pure intent of starting the important dialogue about homosexuality and other

difficult subjects facing the Episcopal Church.” Plaintiffs complain that Rev.

Henderson’s materials made offensive and harassing statements about

homosexuals.

      St. Aidan’s Church also held a series of meetings for church members. The

purpose of these meetings was four-fold: to address Bryce’s employment situation

within the church; to provide religious education; to engage in sacred

conversation; and to ensure healthy parish communication. At these meetings, the

parishioners mainly discussed religious topics, including Biblical interpretation,

Christian sexual ethics, the meaning of the Lambeth Resolution, and Episcopal

liturgical practices. They also made several statements that Bryce and Smith

found offensive. Representatives of St. Aidan’s allegedly stated that Bryce and

Smith were living in a sexual relationship, that Bryce was unfit to work with

children, and that homosexuals choose same-sex relationships because they find


                                         -18-
heterosexual relationships too difficult. Other individuals at the meetings made

statements that Bryce and Smith found offensive, including comments about the

negative influence of homosexuals on children and a question about when Bryce

and Smith began having sex.

      The statements made at the church meetings, in Rev. Henderson’s letters,

and in materials Rev. Henderson attached to his letters may be offensive, and

some of the statements may be incorrect, but they are not actionable. The

defendants’ alleged statements fall squarely within the areas of church

governance and doctrine protected by the First Amendment. Rev. Henderson’s

letters to other church leaders discussed an internal church personnel matter and

the doctrinal reasons for his proposed personnel decision. The series of meetings

addressed the same issues, and also facilitated religious communication and

religious dialogue between a minister and his parishioners. At the time the

offensive statements were made, Bryce was an employee of the church subject to

its internal governance procedures. While churches do not operate above the law,

we find that the dispute here “is an ecclesiastical one about ‘discipline, faith,

internal organization, or ecclesiastical rule, custom or law,’” and not a “purely

secular dispute” with a third party. Bell, 126 F.3d at 331. 2


      2
       The district court relied partially on the ministerial exception of the
church autonomy doctrine in dismissing Bryce’s claims. Consideration of the
                                                                       (continued...)

                                         -19-
      Plaintiff Smith contends that, unlike Bryce, she had no relationship with St.

Aidan’s and must be considered a third party who is not subject to internal church

disciplinary procedures. This argument misses the mark. The church autonomy

doctrine is rooted in protection of the First Amendment rights of the church to

discuss church doctrine and policy freely. The applicability of the doctrine does

not focus upon the relationship between the church and Rev. Smith. It focuses

instead on the right of the church to engage freely in ecclesiastical discussions

with members and non-members. Rev. Smith voluntarily attended the four

meetings and voluntarily became part of St. Aidan’s internal dialogue on

homosexuality and Bryce’s employment.

      Rev. Smith’s situation is therefore different from that of the plaintiff in

Guinn v. Church of Christ of Collinsville, 775 P.2d 776 (Okla. 1989). In Guinn,

the church leaders threatened to broadcast to the congregation the plaintiff’s

sexual relations outside of marriage unless she repented. Id. at 768. In a failed

attempt to prevent this disciplinary action, Guinn withdrew her membership in the

church and hired an attorney who advised the church not to mention her name in



      2
        (...continued)
ministerial exception would require us to determine whether Bryce, as Youth
Minister, was a “minister” for purposes of this exception. See, e.g., Roman
Catholic Diocese, 213 F.3d at 801. We find this inquiry unnecessary, however,
because Bryce’s claims are based solely on communications that are protected by
the First Amendment under the broader church autonomy doctrine.

                                        -20-
church. Id. at 768-69. Guinn brought suit for invasion of privacy and intentional

infliction of emotional distress. The Oklahoma Supreme Court rejected the

church’s First Amendment defense, finding that Guinn had effectively withdrawn

from the church and was no longer subject to internal church discipline. Unlike

Guinn, who was an external third party, Rev. Smith affirmatively interjected

herself into the church’s internal ecclesiastical dialogue. Moreover, the

defendants here did not invade the plaintiff’s privacy as did the church leaders in

Guinn.

      A slightly different situation arises, however, with respect to the letters

Rev. Henderson sent to other church leaders prior to the meetings. Smith did not

participate in drafting the letters and did not have an opportunity to object to their

contents. She was therefore a non-consenting third party. As previously noted,

statements that churches make about third parties are not protected by the First

Amendment when they address purely secular matters. Bell, 126 F.3d at 331.

      Rev. Henderson’s statements clearly addressed religious topics, however,

and he made them in the context of an internal church dialogue. Henderson

sought to educate church leaders on church doctrine on homosexuality and how it

related to Bryce’s employment within the church. Henderson’s only direct

reference to Smith was made in passing, when he reported that “[Bryce] states

that she . . . chooses to live in a sexual relationship with the Rev. Sara Smith.”


                                         -21-
Henderson made statements opposing homosexuality and asked the recipients to

read materials that he enclosed or referenced. These materials made a number of

statements in opposition to homosexuality, including statements that homosexuals

are promiscuous, suffer odious diseases, are engaged in sin, and are unfit to work

with children. While Smith found these statements objectionable, they were

neither libel of Smith with actual malice nor a public disclosure of intimate

matters that had previously been private. We find that these statements were not

purely secular disputes with third parties, but were part of an internal

ecclesiastical dispute and dialogue protected by the First Amendment. Kedroff,

344 U.S. at 116; see also Cimijotti v. Paulsen, 230 F. Supp. 39, 41 (N.D. Iowa

1964) (finding that the First Amendment precluded the maintenance of a slander

action based solely upon statements made to the Catholic Church before its

recognized officials and under its disciplines and regulations).

      Thus, plaintiffs’ claims are barred by the church autonomy doctrine, and the

district court properly granted summary judgment for the defendants.

Because we find that the church is protected from this suit by the church

autonomy doctrine, we need not address the other defenses raised by St. Aidan’s.

C.    Refusal to Recuse

      Plaintiffs’ final challenge is to the district court judge’s refusal to recuse

himself from these proceedings despite belonging to an Episcopal church. We


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review the denial of a motion to recuse for an abuse of discretion. Cauthon v.

Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997).

      Bryce and Smith rely on 28 U.S.C. § 455(a) and (b)(1), which requires a

judge to disqualify himself if “his impartiality might reasonably be questioned” or

if “he has a personal bias or prejudice concerning a party.” The trial judge must

recuse himself when there is the appearance of bias, regardless of whether there is

actual bias. Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995). “The test is

whether a reasonable person, knowing all the relevant facts, would harbor doubts

about the judge’s impartiality.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.

1987) (citation omitted). If the issue of whether § 455 requires disqualification is

a close one, the judge must be recused. Nichols, 71 F.3d at 352.

      On the other hand, a judge also has “as strong a duty to sit when there is no

legitimate reason to recuse as he does to recuse when the law and facts require.”

Id. at 351. The recusal statute should not be construed so broadly as to become

presumptive or to require recusal based on unsubstantiated suggestions of

personal bias or prejudice. Switzer v. Berry, 198 F.3d 1255, 1258 (10th Cir.

2000); see also United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (“The

statute is not intended to give litigants a veto power over sitting judges, or a

vehicle for obtaining a judge of their choice.”).

      Our determination in a recusal case is “extremely fact driven.” Nichols, 71


                                         -23-
F.3d at 352. The facts of this case provide only one suggestion of partiality.

Judge Brimmer is a member of an Episcopal church, and this dispute involves an

Episcopal church. The facts support no other implication of bias. Judge

Brimmer’s church is in Cheyenne, Wyoming, not Boulder, Colorado. He is

connected with neither St. Aidan’s Episcopal Church nor any of the parties in the

case. He does not have any independent knowledge of the facts or events at issue.

      Plaintiffs assert that Judge Brimmer’s membership in an Episcopal church

alone creates an appearance of bias. But courts have consistently held that

membership in a church does not create sufficient appearance of bias to require

recusal. Singer v. Wadman, 745 F.2d 606, 608 (10th Cir. 1984); Feminist

Women’s Health Ctr. v. Codispoti, 69 F.3d 399, 400-01 (9th Cir. 1995); Menora

v. Ill. High Sch. Ass’n, 527 F. Supp. 632, 634 (N.D. Ill. 1981); Idaho v. Freeman,

507 F. Supp. 706, 729 (D. Idaho 1981). In Freeman, for example, the court held

that a judge did not need to recuse himself where he had been a leader in a church

that had taken a public position on the matter before the court. 507 F. Supp. 706.

The court reasoned that “religious beliefs or membership affiliation are presumed

not to be relevant.”   Id. at 731. In Menora, Orthodox Jewish plaintiffs

challenged a rule that would prevent them from playing on the high school

basketball team unless they removed their yarmulkes in contravention of their

religious beliefs. 527 F. Supp. 632. The trial judge, who was also Jewish, found


                                        -24-
it unnecessary to recuse himself, rejecting the implicit assumption that members

of a religious organization necessarily agree with the positions of the

organization’s governing body. Id. at 636.

      These cases are consistent with other associational bias cases, which have

found that group membership alone is insufficient to create the appearance of

bias. Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs, 388 F.

Supp. 155 (E.D. Pa. 1974). In Local Union 542, for example, Judge

Higginbotham refused to recuse himself from a civil rights case on the grounds

that he was African-American, stating: “The facts pleaded will not suffice to

show the personal bias required by the statute if they go to the background and

associations of the judge rather than to his appraisal of a party personally.” Id. at

159; see also Blank v. Sullivan and Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1975)

(finding recusal unnecessary in a civil rights case even though the judge was

African-American and had represented many civil rights plaintiffs in private

practice).

      Thus, the district court did not abuse its discretion in finding that no

“reasonable person, knowing all the relevant facts, would harbor doubts about the

judge’s impartiality.” Hinman, 831 F.2d at 939.

                                   III. Conclusion

      When a church makes a personnel decision based on religious doctrine, and


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holds meetings to discuss that decision and the ecclesiastical doctrine underlying

it, the courts will not intervene. We therefore AFFIRM the ruling of the district

court. Appellees’ motion to strike appellant’s opening brief is denied.




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