Music, Mozart, and the First Amendment – The Seventh Circuit Issues a Ruling Favoring Religious Freedom

| September 12, 2019

The United States Court of Appeals for the Seventh Circuit had before it an employment discrimination case raising First Amendment Freedom of Religion questions.  It issued an opinion that may reshape how courts view employment disputes at religious organizations.

The case is Sterlinski v. Catholic Bishop of Chicago.  Stanislaw Sterlinski was the organist at St. Stanislaus Bishop & Martyr Parish in Chicago, until he was fired in 2015.  He sued for employment discrimination, claiming that he was fired because he was Polish, in violation of civil rights laws forbidding discrimination based on ethnicity.

The Church moved to dismiss his case, based on the Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  There, the Supreme Court had unanimously decided that discrimination laws do not apply to the employment of a church’s ministers.  The basis for the ruling is that churches have a constitutional right to independence in selecting its religious leaders, which decisions the government cannot interfere with.  The Supreme Court had declined to give a definition of a “minister” of a church, and said that it could not be determined by “a rigid formula.”  The lower courts have since had to make that decision on a case by case basis.

So the issue before the Seventh Circuit was: is an organist a “minister”?  If he is a minister of the church, Federal and State discrimination laws do not apply and the case is to be dismissed.  If he is not a minister, then he is entitled to a trial to determine if his firing was the result of illegal discrimination.

Mr. Sterlinski argued that being an organist does not include any substantive decision making.  He does not direct the music program, he is not ordained, he does not select the music to be played, or lead the congregation during services.  His role (as he described it) was limited to “robotically playing the music that he was given.”  As such, he argued, he could not be considered a minister of the church.

The Church’s argument was that music is vitally important to services in the Roman Catholic Church. It is an integral part of the mass and of many other activities.  The organist is a part of the religious services and that makes him a minister for purposes of the discrimination laws.

The case therefore raised an important question left open by the Supreme Court – not just “who is a minister?” but “who is to decide who is a minister?”  Sterlinski argued that the court must undertake an independent evaluation to decide for itself if being an organist is “a ministerial position.”  That is the way similar cases have generally been decided (for example Biel v. St. James School decided by the Ninth Circuit in 2018).

This is where the Seventh Circuit broke new ground, determining that a secular court cannot determine who a church should consider a minister.  Rather, this decision must be left to the church itself, to be determined according to the church’s own doctrines and practices.  The Court wrote:

 “The Free Exercise Clause protects a religious body’s ‘right to shape its own faith and mission through its appointments’, and the Establishment Clause ‘prohibits government involvement in such ecclesiastical decisions.’  If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree?”

The Court (for sake of argument) accepted Mr. Sterlinski’s position that he “robotically” played the music put before him, but responded that “a church may decide that any organist who plays like a robot ought to be fired.”

This reasoning prompted the obvious objection that a church could just declare everyone a “minister” and so avoid the employment laws altogether.  The Seventh Circuit addressed that issue directly.  In employment suits against religious organizations, the burden will be on the organization to raise the “ministerial exception” defense; that is to state that the person involved was a minister.

The person bringing the suit can claim that the defense is a pretext, meaning that the defense is not raised in good faith.  The burden of showing a pretext will be on the individual bringing the suit.  If the court determines that the defense is not a pretext, then that is the end of the matter.  In short, the good faith determination of the church or religious organization will not (and cannot) be challenged.  If the church believes that the person’s position is spiritual “then who are we judges to disagree.”

The Seventh Circuit’s decision and reasoning may well be a springboard to another Supreme Court decision on the issue.  The Supreme Court looks to cases where circuits disagree, and the Seventh and Ninth Circuits have now put out different positions on the question.

Finally, the Seventh Court noted that music has a long historical connection with religion, and that the decisions made within that context are extremely subjective.  It noted the instance of Hieronymus von Colloredo, the Prince-Archbishop of Salzburg who determined that the mass and its music must not exceed 45 minutes.  His music director disagreed, and so Archbishop Colloredo sacked him: “Soll er doch gehen, ich brauche ihn nicht!” (“He should just go then; I don’t need him!”)  The music director was Wolfgang Mozart, who left Salzburg and moved to Vienna, where he wrote secular and spiritual masterpieces which continue to inspire devotion today.


Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.