In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 12-2157, 12-2257, 12-2262

K EVIN B. M C C ARTHY, et al.,

    Plaintiffs-Counterclaim Defendants-Appellants/Appellees,

                                 and

L ANGSENKAMP F AMILY A POSTOLATE, et al.,

               Counterclaim Defendants-Appellants/Appellees,

                                  v.

P ATRICIA A NN F ULLER, et al.,

         Defendants-Counterclaimants-Appellees/Appellants.


            Appeals from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
     No. 1:08-cv-00994-WTL-DML—William T. Lawrence, Judge.



    S UBMITTED F EBRUARY 8, 2013—D ECIDED A PRIL 10, 2013




  Before P OSNER, W ILLIAMS, and SYKES, Circuit Judges.
  P OSNER, Circuit Judge. These three interlocutory appeals
arise from a complicated and acrimonious litigation,
charging RICO, trademark, and copyright violations
2                            Nos. 12-2157, 12-2257, 12-2262

along with Indiana torts, that has been percolating in
the district court for almost five years. The origins of the
litigation go back to 1956, when Sister Mary Ephrem
(born Mildred Neuzil), a Catholic Sister of the Congrega-
tion of the Sisters of the Most Precious Blood of Jesus
(often referred to just as the Congregation of the Sisters
of the Precious Blood), had experienced a series of ap-
paritions of the Virgin Mary, in the course of which
Mary had told Sister Ephrem (according to the latter’s
report): “I am Our Lady of America.” The Archbishop
of Cincinnati (the chapel in which Sister Ephrem experi-
enced the apparitions is, though located in Indiana,
under his authority) was convinced of the truth of her
report of the apparitions, and with his support an
elaborate program of devotions to Our Lady of America
was launched. Our Lady has been credited with healing
sick people who appealed to her for a cure, although
whether either the apparitions or the cures are authentic
has not been ruled on by the Congregation for the
Doctrine of the Faith, the body within the Roman
Catholic hierarchy that is responsible for making such
determinations.
  Perhaps inspired by her visions, Sister Ephrem joined
with other sisters within the Congregation of the Sisters
of the Precious Blood in seeking to form a “contemplative
cloister”—a “strictly cloistered house for members of
the [Congregation] who were principally dedicated to a
contemplative life.” In 1965 Pope Paul VI approved the
creation of the cloister, in New Riegel, Ohio, designating
it a “papal enclosure.” (We discuss the possible
relevance of the designation later.) The New Riegel
Nos. 12-2157, 12-2257, 12-2262                            3

cloister lasted until at least 1977, when its three
surviving members, including Sister Ephrem and Sister
Mary Joseph Therese, left the Congregation of the Sisters
of the Precious Blood and formed a new congregation
that they called the Contemplative Sisters of the
Indwelling Trinity, dedicated to promoting devotions
to Our Lady of America.
  We should pause to explain that although the parties
and the district judge refer to Sister Ephrem and Sister
Therese as “nuns,” this probably is incorrect. Nuns take
what are called solemn vows and live cloistered in con-
vents. Sisters (the full designation is “religious sisters”)
take what are called simple vows—and those were the
vows that both Ephrem and Therese had taken—and
can engage in religious and related work outside of
convents, although, as we said, both sisters chose like
nuns to live the cloistered, convent life. In any event,
like nuns and priests, religious sisters are members of
religious orders. The amicus curiae brief submitted by
the Holy See at our request states that “for the purposes
of this brief, the Holy See will not accord significance
to any distinction between the terms ‘nun’ and ‘sister.’ ”
  The Contemplative Sisters of the Indwelling Trinity,
the congregation founded by Sisters Ephrem and
Therese, operates out of Fostoria, Ohio. Sister Ephrem
directed it until her death in 2000. She also founded in
Fostoria, and directed until her death, an organization
that she called Our Lady of America Center. She
registered the name with the state of Ohio as a trade
name. Sister Therese (referred to in the complaint by her
4                           Nos. 12-2157, 12-2257, 12-2262

birth name of Patricia Fuller) succeeded to Sister Ephrem’s
direction of the two organizations upon the latter’s death.
  Sister Ephrem willed all her property to Sister Therese.
Most of the property—maybe all of it—was related to the
devotions to Our Lady of America and had been bought
with money donated to the Contemplative Sisters or to
the Center. The property included documents, such
as Sister Ephrem’s diary (which Fuller claims Sister
Ephrem had copyrighted, along with a song, a painting,
and sculpture, all relating to Our Lady of America),
and artifacts that included medallions, plaques, and a
statue of Our Lady of America. Sister Therese trade-
marked a number of the artifacts upon assuming direc-
tion of the Contemplative Sisters and the Center.
  In 2005 Kevin McCarthy, a lawyer and Catholic
layman, and Albert H. Langsenkamp, who claims
(whether truthfully or not is in dispute) to be a Papal
Knight of the Holy Sepulcher, approached Fuller and
offered to help her with the devotions to Our Lady of
America. She accepted their offer and the three worked
together until 2007, when they had a falling out that
erupted the following year into this bitter lawsuit.
Langsenkamp established the Langsenkamp Family
Apostolate in Rome City, Indiana, the site of the chapel
in which the Virgin Mary is alleged to have appeared
to Sister Ephrem. Vigorously seconded and assisted by
McCarthy, Langsenkamp claims to be the authentic
promoter of devotions to Our Lady of America and to be
entitled to possession of the documents and artifacts.
  McCarthy and Langsenkamp brought this suit against
Fuller charging all manner of tortious conduct, including
Nos. 12-2157, 12-2257, 12-2262                          5

conversion (theft) of both physical and intellectual prop-
erty, fraud, and defamation. Fuller counterclaimed vigor-
ously, accusing them of the same things, including theft
of the statue of Our Lady of America and of the website
of Our Lady of America Center, and of defaming her
by calling her a “fake nun.” She joined Langsenkamp’s
Apostolate as an additional counterclaim defendant,
though this was really a third-party claim since the
Apostolate was not a party to the litigation until Fuller
named it as a defendant in her counterclaims. There
are other parties to both the complaint and the counter-
claims, but they are peripheral and we can ignore them.
To simplify, we’ll generally refer to just McCarthy as
the plaintiff and Fuller as the defendant-counter-
claimant. Both seek damages and equitable relief.
   McCarthy argues that not only did he and Langsen-
kamp not steal property of Fuller, but that the property
in dispute belongs to the Congregation of the Sisters of
the Precious Blood of Jesus because, among other
things, having taken a vow of poverty Sister Ephrem
did not own and so could not bequeath to Fuller any of
the property in question. McCarthy has no authority to
litigate on behalf of the Congregation, but he can
argue that Fuller’s charge that he stole from her fails
because she was the thief.
  He contests the claim of defamation by denying
(among other things) that he lied in saying Fuller is not
a nun. Whether or not that’s accurate (given the uncer-
tainty that we noted concerning the precise meaning of
“nun” in the Catholic religion), calling her a “fake nun”
6                            Nos. 12-2157, 12-2257, 12-2262

could readily be understood to deny that she had any
religious vocation whatsoever—and in fact McCarthy
does deny this, and obtained from the Apostolic
Nunciature of the Holy See a statement that Fuller is no
longer either a nun or a religious sister. Located in
the Vatican, the Holy See is the central governing body
of the Roman Catholic Church, and the Apostolic
Nunciature is the Holy See’s diplomatic mission to
the United States.
  McCarthy asked the district judge to take judicial
notice of (and thus defer to) the Apostolic Nunciature’s
statement of the Holy See’s ruling on Fuller’s status in
the Church. McCarthy’s ground was that the court,
being a secular body, could not reexamine the Holy
See’s ruling but must accept it as authoritative. The
judge refused, precipitating appeal No. 12-2257, the
only appeal we need to consider at length.
  The appeal is interlocutory, but is within our ap-
pellate jurisdiction under the collateral order doctrine
declared in Cohen v. Beneficial Industrial Loan Corp., 

, 546-47 (1949) (Jackson, J.). The doctrine allows
an interlocutory appeal that challenges a lower-court
ruling (final in that court—rather than a tentative
order that the district judge might decide to revisit in the
course of the litigation) that will harm the appellant
irreparably if the challenge is postponed to an appeal
from the final judgment, and that can be adjudged
correct or incorrect without a further evidentiary hearing.
  Conventional formulations of the doctrine typically
add another requirement: that the ruling sought to be
Nos. 12-2157, 12-2257, 12-2262                             7

appealed have “resolve[d] an important issue com-
pletely separate from the merits of the action.” Will v.
Hallock, 

, 349 (2006) (emphasis added). But
“completely” is an overstatement, since the principal
current application of the doctrine is to appeals from
denials of official immunity. See, e.g., Mitchell v. Forsyth,

, 525-30 (1985); Apostol v. Gallion, 

, 1338 (7th Cir. 1989). Like the protection conferred
on criminal defendants by the double jeopardy clause,
United States v. Kashamu, 

, 682 (7th Cir. 2011),
or on foreign governments by sovereign immunity,
Abelesz v. Magyar Nemzeti Bank, 

, 667 (7th
Cir. 2012), the immunity conferred by the doctrine of
official immunity is immunity from the travails of a
trial and not just from an adverse judgment. If the
defense of immunity is erroneously denied and the de-
fendant has to undergo the trial before the error is cor-
rected he has been irrevocably deprived of one of the
benefits—freedom from having to undergo a trial—that
his immunity was intended to give him. That satisfies
the requirement that to be appealable as a collateral
order the order must (unless reversed) wreak irreparable
harm on the appellant.
  Now often the question of immunity concerns the
same conduct of the defendant that the suit challenges
as unlawful, rather than being “completely separate.”
That may be why the issue of immunity is required only
to be “conceptually distinct” from the merits, Mitchell
v. Forsyth, supra, 472 U.S. at 527, rather than literally
“completely separate” from them. As the Court explained
in that case, if “any factual overlap between a collateral
8                             Nos. 12-2157, 12-2257, 12-2262

issue and the merits of the plaintiff’s claim is fatal to a
claim of immediate appealability, none of these matters
could be appealed, for all of them require an inquiry into
whether the plaintiff’s (or, in the double jeopardy
situation, the Government’s) factual allegations state a
claim that falls outside the scope of the defendant’s
immunity. There is no distinction in principle between
the inquiry in such cases and the inquiry where the
issue is qualified immunity . . . . [M]eritorious double
jeopardy and absolute immunity claims are necessarily
directly controlling of the question whether the
defendant will ultimately be liable. Indeed, if our
holdings on the appealability of double jeopardy and
absolute immunity rulings make anything clear it is
that the fact that an issue is outcome determinative
does not mean that it is not ‘collateral’ for purposes
of the Cohen test.” Id. at 529 n. 10. We add the further
condition that the error be determinable without an
evidentiary hearing simply as a reminder that appellate
courts don’t conduct such hearings.
  The conditions for collateral order review are
satisfied with respect to appeal No. 12-2257. The district
judge’s ruling challenged by the plaintiffs is closely akin
to a denial of official immunity. A secular court may
not take sides on issues of religious doctrine. Hosanna-
Tabor Evangelical Lutheran Church & School v. EEOC, 

, 702-07 (2012); Serbian Eastern Orthodox Diocese
v. Milivojevich, 

, 708-20 (1976); Kedroff v. St.
Nicholas Cathedral, 

, 115-16 (1952); Askew v.
Trustees of General Assembly of Church of the Lord Jesus Christ
of the Apostolic Faith Inc., 

, 415 (3d Cir. 2012).
Nos. 12-2157, 12-2257, 12-2262                            9

The district judge in this case has ruled that a
federal jury shall decide whether Patricia Fuller is a
member of a Roman Catholic religious order, though if
the jury decides that she is it will be rejecting the
contrary ruling of the religious body (the Holy See) autho-
rized by the Church to decide such matters.
  A secular court must be allowed to decide, however,
whether a party is correct in arguing that there is an
authoritative church ruling on an issue, a ruling that
removes the issue from the jurisdiction of that court.
Tomic v. Catholic Diocese of Peoria, 

, 1039
(7th Cir. 2006); Serbian Eastern Orthodox Diocese v.
Milivojevich, supra, 426 U.S. at 715-16 and n. 9; Steffen N.
Johnson, “Expressive Association and Organizational
Autonomy,” 

. Rev. 1639, 1650 (2001). (One of
our holdings in Tomic was disapproved in the Hosanna-
Tabor case, but the disapproved holding is unrelated to
the holding for which we just cited Tomic.) But once
the court has satisfied itself that the authorized religious
body has resolved the religious issue, the court may
not question the resolution.
  It is true that the error of the secular court—of the
district court in this case—in deciding that whether
Fuller is a member of a religious order is a proper
question to put to a jury, allowing the jury to disregard
the ruling by the Holy See, can in principle be corrected
on appeal from a final judgment. But practice and
principle are likely to diverge in this case. Suppose the
religious question on which the jury was (wrongly) al-
lowed to rule turned out not to be germane to the
10                           Nos. 12-2157, 12-2257, 12-2262

appeal, or that there was no appeal. Then there would
be a final judgment of a secular court resolving a
religious issue. Such a judgment could cause confusion,
consternation, and dismay in religious circles. The com-
mingling of religious and secular justice would violate
not only the injunction in Matthew 22:21 to “render unto
Caesar the things which are Caesar’s, and unto God the
things that are God’s,” but also the First Amendment,
which forbids the government to make religious judg-
ments. The harm of such a governmental intrusion into
religious affairs would be irreparable, just as in the
other types of case in which the collateral order
doctrine allows interlocutory appeals.
  That no religious institution is a party to this case is of
no moment. McCarthy is asking us to reverse a district
judge’s ruling that if it stands will require a jury to
answer a religious question. (He has standing to chal-
lenge the ruling because it bears directly on his claim.)
Religious questions are to be answered by religious
bodies. So we asked the Holy See to advise us on the
matter, and in response it has filed a 51-page amicus
curiae brief which concludes that Fuller, since leaving
the Congregation of the Sisters of the Precious Blood
in 1979 (or at the very latest since 1983), has not been a
member of any religious organization recognized by
the Holy See. She is not a nun (she may never have been
one, as we noted earlier), not a member of the Catholic
Sisterhood or of any Catholic religious order, and not
entitled under Catholic law to call herself Sister Therese.
 As the Holy See’s brief explains, Fuller had become a
member of the Congregation of the Sisters of the Precious
Nos. 12-2157, 12-2257, 12-2262                           11

Blood in 1965, entering the contemplative cloister that
we mentioned earlier. In 1970 she professed perpetual
vows of poverty, chastity, and obedience. But in 1977 the
Superior General of the Congregation ordered her to
take a leave of absence from the cloister for at least a
year because of her “seeming satisfaction with minimum
spiritual growth and . . . overconcern for externals and
physical comfort and niceness,” “efforts to control and
dominate over the other members of the community,” and
“disregard for congregational policies and procedures.”
Four days later she and two other sisters, including
Sister Ephrem, petitioned the Superior General for “sepa-
ration” from the Congregation. They wanted to form
their own community—the Contemplative Sisters of the
Indwelling Trinity—and went ahead and did so.
  The Holy See rejected their petition for separation
the following year, on the ground that three was “too
small [a number of sisters] for a well-formed community”
and in addition that their proposal for the new com-
munity “lack[ed] the distinctive charism [calling or apti-
tude for a religious career] and way of life required for
the approval of a religious institute.” However, the
Holy See reminded the Congregation of the Sisters of
the Precious Blood that the sisters could petition for
“exclaustration,” which means permission to live outside
a cloister while remaining a member of a religious order,
in this case the Congregation of the Sisters of the Precious
Blood. Sister Therese petitioned in 1979 for a one-year
exclaustration, which was granted, as was her petition
the following year for a second one-year exclaustration.
But the Holy See told her there would be no further
12                          Nos. 12-2157, 12-2257, 12-2262

extensions—that when the second one expired she
would either have to return to the Congregation of the
Sisters of the Precious Blood “and live fully under obedi-
ence to the superior general,” or have to “request a
dispensation from your vows and separate yourself
from your Congregation.” The Holy See gave her till
May 31, 1981, to decide. She did not respond, and the
following year the Holy See, at the request of the Congre-
gation, dispensed her from her vows and dismissed her
from the Congregation on the ground of “incorrigible
disobedience.” A year later the Holy See advised the
Congregation that Fuller “has not made any recourse, so
the case is closed.”
   So matters stood until 2008, when a bishop of the
diocese in which Fostoria is located wrote Fuller—ap-
parently at McCarthy’s prompting—inquiring about her
“state of life in the Church.” She replied to the bishop
that she remained a member of a religious order under
canon law, presumably referring to the Contemplative
Sisters of the Indwelling Trinity. Unpersuaded, the
bishop issued a statement in which he said that Fuller
“is not a member of a canonical institute of consecrated
life, having been dismissed from the Society of the
Precious Blood community in 1982.”
  Three years later the Congregation for Institutes of
Consecrated Life, the branch of the Holy See responsible
for supervision of “religious Institutes,” a category that
would include both the Congregation of the Sisters of
the Precious Blood and the Contemplative Sisters of the
Indwelling Trinity, endorsed the following declara-
Nos. 12-2157, 12-2257, 12-2262                          13

tion by Archbishop Joseph W. Tobin—the Archbishop
Secretary of the Congregation for Institutes of Consecrated
Life: “Miss Patricia Ann Fuller is not a member of any
religious Institute, formally recognized by the Catholic
Church.” In March 2012 the Apostolic Nunciature, speak-
ing for the Holy See, confirmed the authority of the arch-
bishop’s declaration and requested “that the United
States of America and its courts accord full faith and
credit to” it.
  The question of Fuller’s religious status relates to
several issues in the litigation. We mentioned her allega-
tion that McCarthy defamed her by calling her a “fake
nun,” while as part of his claim of fraud he alleges that
she misrepresented herself as being a nun and living in
a convent. She challenges the Holy See’s rulings with
the claim that she professed “private vows” back in 1979
and as a result of these vows has “remain[ed] a perma-
nently professed religious sister of the Catholic Church,
in private vow, to the present day.” She argues that even
if she was dismissed from her congregation she is
entitled to refer to herself as a sister because the term
may be used by a lay person who takes a private vow.
The Catholic Church rejects the argument. The Holy
See’s brief states that “Fuller was neither a nun nor a
sister in the Catholic Church once she was dispensed
from her religious vows and dismissed from her
religious order on August 11, 1982.”
  Fuller also argues that the Contemplative Sisters of the
Indwelling Trinity, as the successor to the contemplative
cloister established in 1963, is a papal enclosure, a term
14                          Nos. 12-2157, 12-2257, 12-2262

that usually denotes a strictly cloistered existence, as
of a nun. But once again, insofar as she is simply dis-
agreeing with the Holy See’s denial that she is a nun
or a sister, the federal judiciary has no authority to en-
tertain the argument. She further argues that Archbishop
Tobin’s ruling that Fuller has belonged to no Catholic
religious order since her expulsion from the Congregation
of the Sisters of the Precious Blood was based on
forged documents submitted to him by McCarthy—who
indeed, she claims, has been engaged in an orgy of
forgery in his effort to place control over all devotions
to Our Lady of America in the hands of Langsenkamp’s
Apostolate. But again this argument cannot prevail in
the face of the Holy See’s ruling, communicated to us
by the amicus curiae brief.
  Yet the district judge, rejecting McCarthy’s motion to
take judicial notice of Archbishop Tobin’s ruling on
Fuller’s religious status, said that McCarthy hadn’t dem-
onstrated that either the archbishop or the Congregation
for Institutes of Consecrated Life “has the authority to
make any such ‘decision,’ ” that is, a decision regarding
Fuller’s religious status. Later, after the Apostolic
Nunciature’s statement, confirming the archbishop’s
ruling, in March 2012, he said that “because the
Catholic Church is not a party to this case, . . . if the
jury ultimately decides that Fuller is a Catholic nun,
that decision simply will not affect the Catholic Church
in any way.” He added “that the determination set forth in
the [archbishop’s] Declaration was not made as a result
of an adjudication made for religious or church
governance purposes.” The judge also noted disapprov-
Nos. 12-2157, 12-2257, 12-2262                           15

ingly that it was McCarthy who had requested the arch-
bishop to declare Fuller’s religious status.
  In other words, the judge neither could see how the
Catholic Church could be harmed by allowing a jury to
determine Fuller’s religious status nor was satisfied that
the Church’s determination was valid, in the sense of
being both consistent with canon law and procedurally
regular. The judge’s first reason was, as we said,
erroneous; submitting the question of Fuller’s religious
status to a jury would undermine the authority and
autonomy of the Church. His second reason—his concern
with validity—has been laid to rest by the amicus curiae
brief, which the judge didn’t have the benefit of. The
brief is the unquestionably authentic statement of the
Holy See. In it the Holy See has spoken, laying to rest
any previous doubts: Fuller has not been a member of
any Catholic religious order for more than 30 years.
Period. The district judge has no authority to question
that ruling. A jury has no authority to question it. We
have no authority to question it.
  All that this means, however, so far as the litigation
is concerned, is that Fuller’s religious status is no longer
a litigable issue. She is not a member of any Catholic
religious order, and hasn’t been since 1983 at the latest,
when she exhausted her remedies within the Church by
failing to seek “recourse” from her expulsion by the
Holy See from the Congregation of the Sisters of the
Precious Blood. At any point in the trial or other pro-
ceedings at which her religious status becomes relevant
to a legal issue, the judge must instruct the lawyers, and
16                          Nos. 12-2157, 12-2257, 12-2262

if there is a jury the jurors as well, that the Roman
Catholic Church has determined that Fuller has not been
a member of any Catholic religious order since 1983 at
the latest; that she is not a nun or a sister and does not
live in a convent, cloister, or other religious property
owned or used by the Church; and that these rulings by
the Church may not be questioned in the litigation.
   What bearing the rulings have on particular charges
and countercharges is for the district court to decide in
the first instance. Obviously it is relevant to the plain-
tiff’s charge of fraud, though not necessarily determina-
tive, as Fuller may try to prove that she believed, albeit
erroneously, that she remained a sister after her expul-
sion by the Congregation of the Sisters of the Precious
Blood. But she will not be permitted to argue or offer
evidence that she is a sister. The Holy See’s ruling has
removed that issue from the litigation.
  This completes our analysis of the principal appeal.
We turn briefly to the other two appeals. One of them
(No. 12-2157) is really two appeals. It challenges the
district judge’s denial of McCarthy’s motion for a stay
pending resolution of a petition to the Holy See asking it
to determine that the disputed property belongs to the
Church, rather than to Fuller, because of Sister Ephrem’s
vow of poverty. That challenge became moot when the
Holy See declined to decide who owned the disputed
property, and so dismissed the petition.
  But the appeal also challenges the judge’s denial of a
motion by McCarthy for partial summary judgment
that the district court “lacks jurisdiction to make or con-
Nos. 12-2157, 12-2257, 12-2262                           17

duct a factual inquiry into the status/ownership of ecclesi-
astical property.” The district judge denied the motion
on the ground that the property dispute can be resolved
without getting into religious questions. That may
indeed be possible. Conceivably the court might hold,
for example, that even if Fuller obtained title to the prop-
erty in question (the religious artifacts, etc.) upon
Sister Ephrem’s death, she cannot prove conversion
because (McCarthy may be able to prove) she voluntarily
gave the property to McCarthy and Langsenkamp. The
Holy See’s brief expresses doubt that resolution of the
property disputes will entangle the district court in
religious issues, and if they will not there is no basis for
renouncing judicial jurisdiction over the disputes. See
Jones v. Wolf, 

, 604 (1979); Presbytery of Ohio
Valley, Inc., v. OPC, Inc., 

. 1099, 1105-07
(Ind. 2012); Serbian Orthodox Church Congregation of St.
Demetrius v. Kelemen, 

, 216-17 (Ohio
1970). Unless and until such entanglement looms, there
is no basis for the relief sought by McCarthy; and so
we dismiss appeal No. 12-2157 as premature.
  The remaining appeal, No. 12-2262, filed by Fuller,
seeks to overturn some of the district judge’s rulings.
These are not final rulings and Fuller did not obtain a
Rule 54(b) certification authorizing an interlocutory
appeal. Nor is there any other basis for jurisdiction
over the appeal.
  So, to conclude, the district court’s denial of McCarthy’s
motion that the court take judicial notice of the Holy See’s
rulings on Fuller’s status in the Church—the denial
18                        Nos. 12-2157, 12-2257, 12-2262

appealed from in appeal No. 12-2257—is reversed, with
a reminder to the district court that federal courts
are not empowered to decide (or to allow juries to de-
cide) religious questions. The other two appeals are
dismissed.




                        4-10-13