A controversial issue that the Seventh Circuit can’t decide (yet)

Herx v. Diocese of Fort Wayne–South Bend, Inc., No. 14-3057 (7th Cir. Dec. 1, 2014).

Emily Herx, a language-arts teacher, learned that she was infertile. To try to conceive, she underwent in vitro fertilization. Because in vitro fertilization violates Catholic teaching, her employer, a Catholic middle school, fired her. Herx sued the school and the diocese under Title VII, alleging that she had been fired because of her sex.

The defendants invoked statutory exemptions that shield religious organizations from certain kinds of claims. On the basis of those exemptions, the defendants asked the district court to dismiss Herx’s claims on summary judgment. The district court said that the exemptions protect organizations only from claims of religious discrimination. Claims alleging other sorts of discrimination are not barred. So the district court upheld Herx’s claim, allowing it to proceed to trial. The diocese and school appealed this ruling to the Seventh Circuit. 

So this case poses an important legal question: do the statutory exemptions protect organizations only from claims of religious discrimination, or do they apply to other kinds of discrimination claims too?

The Seventh Circuit, though, concludes it can’t answer this question because it lacks appellate jurisdiction. As a general matter, courts of appeals only have jurisdiction over “final decisions” of district courts. A ruling that upholds a claim against a summary judgment motion isn’t final, because a judgment on that claim hasn’t yet been rendered. 

Now, there are certain exceptions to this “final judgment rule,” but they’re narrow. The diocese and school try to fit themselves into certain exceptions to the final judgment rule that allow litigants to appeal questions of immunity. If, for example, a district court rules that a state isn’t immune from a suit for damages, the state can immediately appeal that ruling. The diocese and school argue that the statutory exemptions they’ve invoked clothe them with a similar kind of immunity, but the Seventh Circuit disagrees. The statutory exemptions are defenses from liability, not immunities from trial. As a result, the Seventh Circuit lacks jurisdiction to review the district court’s pretrial ruling, and it dismisses the appeal.