FILED

United States Court of Appeals

Tenth Circuit

APR 30 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEE ANN BRYCE; SARA D. SMITH, The Reverend,THE COLORADO BAPTIST GENERAL

CONVENTION (SOUTHERN

Plaintiffs - Appellants, BAPTIST); THE COLORADO

CATHOLIC CONFERENCE;

v. THE COLORADO DISTRICT

CHURCH OF THE NAZARENE;

EPISCOPAL CHURCH IN THE DIOCESE OF COLORADO;THE COLORADO MUSLIM

SAINT AIDAN'S EPISCOPAL CHURCH; THE SOCIETY; THE COLORADO

RIGHT REVEREND WILLIAM JERRY WINTERROWD,TASK FORCE ON RELIGIOUS

in his official capacity and as an individual; FREEDOM; THE FIRST CHURCH

THE REVEREND TINA ANDERSON, in her officialOF CHRIST, SCIENTIST;

capacity and as an individual; THE REVERENDTHE GENERAL CONFERENCE

DONALD HENDERSON, in his official capacityOF SEVENTH-DAY ADVENTISTS;

and as an individual; THE REVEREND NEYSATHE GENERAL COUNCIL ON

ELLGREN, in her official capacity and FINANCE AND ADMINISTRATION

as an individual; and MEMBERS OF THE OF THE UNITED METHODIST

VESTRY OF SAINT AIDAN'S EPISCOPAL CHURCH,CHURCH; THE ISLAMIC

KARLA ALLEN, TRACY ENHOLM, DAVID HUFF, SOCIETY OF COLORADO SPRINGS;

MARTI INGRAM, ED KASE, MARGIE MILLER, LUTHERAN CHURCH - MISSOURI

ANDY MORRIS, BAL PATTERSON, VIRGINIA SYNOD; MID-AMERICA UNION

PATTERSON, NORM PILGRIM, CAROL RASMUSSEN,CONFERENCE OF SEVENTH-DAY

CAROL STOTT, MARY WILDER, and RICHARD ADVENTISTS; NATIONAL

WOLNIEWICE, in their official capacities FEDERATION FOR CATHOLIC

and as individuals, YOUTH MINISTRY; THE NAVIGATORS;

NEW LIFE CHURCH; THE

Defendants - Appellees, NET, formerly The Colorado

Springs Association of

THE ASSOCIATION OF CHRISTIAN SCHOOLS Evangelicals; PRESBYTERIAN

INTERNATIONAL; CAMPUS CRUSADE FOR CHRIST;CHURCH (U.S.A.); THE

THE CHRISTIAN LEGAL SOCIETY CENTER FOR PUEBLO ASSOCIATION OF

LAW AND RELIGIOUS FREEDOM; THE CHURCH EVANGELICALS; THE ROCKY

OF JESUS CHRIST OF LATTER-DAY SAINTS; 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.

No. 00-1515

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 Ä one of the most

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

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, 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 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, 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:

ú "Lee Ann is living in a sexual relationship outside of Christian marriage."

ú "When did you start having sex with Sara?"

ú "Gay people are very nice, but it worries [me] why gay people want to

work with children."

ú "My husband and I were always worried about the paper boy coming in,

and we always protected our children from him."

ú "I am sorry that Lee Ann has chosen this lifestyle which precludes her

from working with children."

ú "Of course Father Don is right, we can't let these gay people come into

the church and work with our children."

ú "Homosexual people engaged in same sex relationships because

heterosexual relationships were too difficult, it was too difficult to make

a heterosexual marriage work . . . ."

ú 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

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 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 resolved at the earliest possible

stage of litigation").(1)

(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 churchautonomy 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.

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.

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., 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

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 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 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:

Of course churches are not Ä and should not be Ä 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 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 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)

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 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.

(2) The district court relied partially on the ministerial exception of the

church autonomy doctrine in dismissing Bryce's claims. Consideration of the

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.

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."

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 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 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 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 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.