|Jottings By An Employer's Lawyer|
Tuesday, April 04, 2006
The Words of the Gospel Set to Messiah or to 3 Blind Mice?
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.