2d Circuit declines to rehear church defamation case

The Second Circuit has declined to rehear a defamation case brought against a religious organization. The judges who want to hear the case again believe the original opinion in favor of the minister-plaintiff violates certain constitutional principles protecting church defendants from court-interference in their affairs.

The case is Belya v. Hilarion Kapral, issued on February 8. Last year, the Court of Appeals allowed this case to proceed. See Belya v. Kapral, 45 F.4th 621 (2d Cir. 2022). The plaintiff sued the church for defamation, claiming reputational injury after church leaders publicly accused him of forging a series of letters relating to his appointment as the Bishop of Miami. The church defendants then petitioned the Court of Appeals as a whole to hear the case.

Here is how that works. Three judges will hear a case on any given day. Those three judges are chosen at random from the 20-25 judges who serve on the Second Circuit. If you lose before the three-judge panel, you can ask the court to hear the case en banc, which is Latin for "the Earth stops spinning while the whole court hears the case." Having worked on an en banc case a few years ago, I can tell you it is a momentous occasion, as all the judges hear the case at once and the courtroom is packed to the gills with spectators. In the 17th floor courtroom, the bench is barely large enough to fit all the judges. Only active judges on the Court are eligible to sit en banc. The remaining judges cannot hear the case en banc because they have senior status. The Second Circuit is notorious for almost never hearing cases en banc. For the Court, a three-judge panel's ruling is final and that's that.

The Court's more conservative judges want the Court to hear this case en banc because they think this case interferes with the church's right to manage its affairs without judicial interference. That right is grounded in the First Amendment's freedom-of-religion principles. We call it the "church autonomy" doctrine. The original three-judge panel rejected that argument because the procedural posture arises under Rule 12, which is a motion to dismiss the complaint pre-discovery, and the case for now is a simple defamation case. As such, under the "collateral order" doctrine, the case was before the Court prematurely because there was no final order in the district court and all that happened was the trial court denied the church's motion to dismiss. In federal practice, you normally cannot appeal a ruling unless it is the final ruling in the case and there is nowhere to go but to the Court of Appeals. The church defendants can appeal to the Circuit again if they lose the case following discovery and trial.

The conservative judges who want to rehear the case en banc want to apply the collateral order rule to allow this case to be appealed right away, so the church will not be subjected to judicial interference in discovery and possibly trial. In other words, they think the Court has appellate jurisdiction over the case, which implicates "church autonomy" principles. But the conservative judges do not have to votes to rehear the case. The final vote on the en banc petition is 5-5. A tie vote means no en banc review. The five judges who voted against en banc review (thereby siding with the minister-plaintiff) are Obama-Biden appointees. The five judges who want to hear the case en banc are George W. Bush-Trump appointees, with one Clinton appointee (Cabranes) also voting to hear the case en banc.