Jottings By An Employer's Lawyer

Tuesday, April 04, 2006

The Words of the Gospel Set to Messiah or to 3 Blind Mice?


Does that pose a question of religious doctrine? Close enough to cause Judge Posner to invoke the ministerial exception thus precluding an age discrimination suit brought by the organist of the Peoria Diocese. If you represent a religious organization and want a handy history of the ministerial exception, including a historical sojourn through such ecclesiastical courts as the Court of Peculiars and the Court of Arches, put a copy of Tomic v. The Catholic Diocese of Peoria, (7th Cir. 4/6/06) [pdf] in your satchel.

Ultimately, the question was the role of the organist, or more precisely what would the Court's role be in juding the duties of the organist:
So far as his role as organist is concerned, his lawyer says that all Tomic did was play music. But there is no one way to play music. If Tomic played the organ with a rock and roll beat, or played excerpts from Jesus Christ Superstar, at an Easter Mass he would be altering the religious experience of the parishioners. Among his duties as music director was that of selecting the music to be played at the various masses. That duty required him to make a discretionary religious judgment because the Catholic Church does not have rules specifying what piece of music is to be played at each type of mass.
Ultimately there was no question that Tomic "performed tasks that were 'traditionally ecclesiastical or religious,' " which doomed his suit.

In addition, Judge Posner tossed down his (and thus the 7th Circuit's) disagreement with a sister circuit, the 2nd, which in Hankins v. Lyght, 438 F.3d 163 (2d Cir. 2006) held that the Religious Freedom Restoration Act had amended the ADEA to wipe out the ministerial exception and replace it with the RFRA test - whether a particular law imposes a substantial burden on religious activity. Without mincing words, Judge Posner writes:
The decision would if sound invalidate the many decisions in this and other circuits recognizing the ministerial exception to federal employment discrimination law. The decision is unsound. (emphasis added)
Not much question which court Judge Posner believed was singing to the tune of 3 blind mice.


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