Faith Christian Academy is a K-12 school in Colorado. Faith Christian provides a Christian environment, with Bible classes and weekly chapel services required for all students as part of the regular curriculum. In addition, every educator must uphold and abide by Faith Christian’s Statement of Faith and teach all subjects from the church’s biblical perspective. Gregory Tucker was the school’s chaplain and a Bible teacher. One of his duties was leading weekly chapel services, which included planning religious teaching, coordinating worship, and often personally leading prayer.

In 2018, Tucker led a chapel service on race that became too political. Mr. Tucker was relieved of some of his duties and later asked to leave. Tucker then sued the school in federal court. Faith Chapel defended its actions as protected by the ministerial exception, which allows religious institutions to freely choose its religious leaders without government interference.

In response, Tucker claimed he wasn’t a religious leader, saying his chapel services were “pep rallies,” and his Bible courses—which he had said were meant to ensure students “grow personally in devotion to Christ”—were “comparative religion” classes that treated all religions as the same. Tucker even claimed that he was primarily a science teacher, when at least half of his time every day was spent on his chaplain duties.

After the Colorado district court found in Tucker’s favor, Faith Chapel appealed to the Court of Appeals for the Tenth Circuit. On June 7, 2022, the Tenth Circuit issued a 2-1 decision allowing Tucker to move ahead with suing the school. The ruling meant that the school could not appeal the loss of its ministerial exception defense in the court below and would have to go to jury trial where the jury would decide whether a “chaplain” was a minister under the First Amendment. The panel’s ruling directly conflicted with rulings from the U.S. Supreme Court and numerous other federal appeals courts.

Shortly thereafter, Faith Christian petitioned the Tenth Circuit for rehearing en banc. The Center joined an amicus brief in support of the petition. The brief argued that the court committed several errors including: (1) treating the ministerial exception as any other affirmative defense; (2) rejecting the immunity-like nature of the exception, which justifies interlocutory review; (3) ignoring the unconstitutional burdens and intrusion of litigating religious issues, which numerous other circuits have readily recognized; (4) refusing to acknowledge that the ministerial exception is a “structural” limitation on court powers; and (5) leaving constitutional religious defenses to be reviewed only after final judgment, when irreparable harm to religious bodies will have necessarily occurred.

On November 15, 2022, the Tenth Circuit denied the request, with three judges dissenting. The deadline for seeking the review of the U.S. Supreme Court is in February 2023.