Archdiocese v. Moersen
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Archdiocese of Washington, et al., v. William T . Moersen, No . 69, September Te rm 2005. Opinion by Bell, C.J. CONSTITUTIONAL LAW FIRST AMENDMENT MINISTERIAL EXCEPTION The Title VII ministerial exception does not apply to a church organist, who did not perform any ministerial duties. IN THE COURT OF APPEALS OF MARYLAND No. 69 September Term, 2005 _____________________________________ ARCHDIOCESE OF WASHINGTON, ET AL. v. WILLIAM T. MOERSEN _____________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Bell, C.J. Raker, C athell and H arrell, JJ., Dissen t. ______________________________________ Filed: June 14, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active mem ber of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. The central issue in this case invo lves whe ther an orga nist for a Ca tholic church fa lls within the Title VII ministerial exception, a legal exception carved out in deference to the Free Exercise Clause of the First Amendment that precludes government interference, or judicial involvement, in the employment decisions of religious org anizations. W e shall hold that, under the f acts of this ca se, an organ ist holding a p osition similar to that occupied by the respondent does not come within the ministerial exception. Thus, he may prosecute a Title VII claim. A. The First Amendment, as relevant, provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . U.S. Cons t., Am. I. These religious prohibitions are applied to the states through the Fourtee nth Amen dment. Employm ent Div., O re. Dept. of Huma n Res. v. S mith, 494 U.S. 872, 876-77, 110 S. Ct. 15 95, 159 9, 108 L . Ed. 2d 876, 88 4 (199 0). See also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed . 1213, 121 7-18 (194 0); Levitsky v. Levitsky, 231 Md. 388, 396-97, 190 A .2d 621, 625 (196 3); Craig v. Sta te, 220 Md. 590, 599, 155 A.2d 684, 690 (1959). Th e free exe rcise clause p rohibits government regulation of religious beliefs. Wiscon sin v. Yoder, 406 U .S. 205, 219, 92 S. Ct. 1526, 1535 , 32 L. Ed. 2d 15, 27 (1972). Legitimate claims to fre e exercise, h oweve r, can be ou tweighed by governm ent interests, albeit only those of the highest importance. Yoder, 406 U.S. at 214-15, 92 S. Ct. at 1532-33, 32 L. E d. 2d at 2 3-25. The free exercise pro tection is also p resent in A rticle 36 of th e Declara tion of Rig hts of the M aryland Con stitution. It provid es, as relevan t, that: . . . all p erso ns ar e equ ally entitled t o pro tection in their relig ious liber ty; wherefore, no person ought by any law to be mole sted in his person or estate, on account of his religious persuasion, or professio n, or for his religious practice, unless, under the color of religion, he shall disturb the good orde r, peace or safety of the State, or shall infringe the laws of m orality, or injure others in their natura l, civil or religious rights; nor ought any person to be compelled to frequent, or maintain, or contribute, u nless on co ntract, to mainta in, any pla ce of w orship, o r any min istry. . . The Free Exercise Clause, as embodied in the U.S. Constitution and Article 36 of the Maryland Declaration of Rights, does not provide a constitutional right to ignore neutral laws of general applicability, even when such laws have, as an incidental effect, the burdening of a pa rticular re ligious a ctivity, how ever. City of Boerne v. Flores, 521 U.S. 507, 513, 117 S . Ct. 215 7, 2161 , 138 L . Ed. 2d 624, 63 4 (199 7). See also Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d 472, 489 (1993); Employment Div., Ore. Dept. of Human Res., 494 U.S. at 892, 110 S. Ct. at 1607, 108 L. Ed. 2d a t 894; Levitsky, 231 Md. at 396-397, 190 A.2d at 62 5; Craig, 220 Md. at 599, 155 A.2d at 689. Under the Free Exercise Clause, strict scrutiny is used to evaluate whether laws target religious practices or impose burdens, motivated by religiou s belief , on con duct. Church of the Luk umi Bab alu A ye, 508 U .S. at 531 -32, 11 3 S. Ct. a t 2226, 1 24 L. Ed. 2d at 489. Moreo ver, the Sup reme Co urt has note d that: 2 [A] spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interfer ence. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S . 94, 116, 73 S. Ct. 143,15 4-155 , 97 L. E d. 2d 12 0, 136- 137 (1 952). The Supreme Court has made clear that the church can self-govern beyond the reach of judicial p ower. See, e.g., N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 504, 99 S. Ct. 1313, 1320, 59 L. Ed. 2d 533, 543 (1979) (holding that, because of a potential conflict with the First Amendment, the National Labor Relations Act did not apply to teachers in church-operated schoo ls). Fede ral cour ts have reinfor ced tha t messa ge. See, e.g., Gellington v. Christian M ethodist Ep iscopal C hurch, 203 F.3d 1299, 1304 (11th Cir. 2000) (holding that, in matters of church g overnan ce and ad ministration, the governm ent shall not interfere); Bollard v. California Province of Society of Jesus, 196 F.3d 940, 945 (9th Cir. 1999) (holding that the Free Exercise Clause restricts the government s ability to intrude into ecclesiastical matters or to in terfere with a church s governa nce of its ow n affairs ); Combs v. Central Texas Annual Conference United Methodist Church, 173 F.3d 343, 34 8 (5th Cir. 1999) (noting that the Free Exercise Clause protects a church from government interference with church man agemen t); E.E.O.C. v. Catholic University of America, 83 F.3d 455, 463 (D.C. Cir. 1 996) (hold ing that the F ree Exerc ise Clause guarantee s a church s freedom to decide how it w ill govern itself ). 3 Employment decisions typically are governed by Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. (1964). That Title makes unlawful any employment practice that discriminate s on the basis of race, co lor, religio n, sex, o r nation al origin . 42 U.S .C. § 2000e-1 (a) carves o ut a statutory exception, howev er. That exception is for: . . . an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular relig ion to perform work connected with the carrying on by such corporation, association, educa tional in stitution, o r society o f its activ ities. (Emphasis add ed). This exception for religious orga nizations also is embod ied in 42 U.S.C. § 2000e-2 (e), which provides: (2) it shall not be an unlawful employment practice for a school, college, univ ersity, or other educational institution or institution of learning to hire and employ employees of a particular relig ion if such s chool, colle ge, u nive rsity, or other educ ational institution or institution of learning is, in w hole or in substantial part, owned, suppo rted, controlled, or managed by a particular religion or by a particular relig ious corpo ration, associa tion, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particul ar religio n. (Emphasis add ed). The exception for religious organizatio ns and their em ployment relatio nships w ith persons performing religious du ties was co nsidered b y the Suprem e Court in Corporation of Presiding Bishop v. Amos, 483 U.S . 327, 336, 1 07 S. Ct. 2862, 2868, 97 L. Ed. 2d a273, 283 (1987). Supporting the exception, it explained: [I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will 4 consider religious. The line i s har dly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organi zation c arried o ut wha t it under stood to be its relig ious m ission. See also Gellington, 203 F.3d at 1303-1 304 (hold ing that gov ernment in terference with clergy emp loyment matters viola tes the Free E xercise Cla use); Combs, 173 F.3d at 350 (holding that the judiciary could not rule on an employment decision concerning a minister without violating the Free E xercise Clause). This Court, in ad dition to reco gnizing the Title VII ex ception insulating religious organizations from sanction for discrimination when making employment decisions, based on religious beliefs, even with respe ct to the protected classes of race, co lor, sex, and national origin, the other pro tected classe s, has recog nized that under Title VII, the Free Exercise Clause of the First A mendm ent precludes the applicatio n of these T itle VII prov isions to employment decisions by religious organizations concerning ministers, teachers, and other employees whose duties are integral to the spiritual and pastoral mission of the religious organization. Montrose Christian School Corporation v. Walsh, 363 M d. 565, 5 90, 770 A.2d 1 11, 126 (2001 ), quoting E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 797 (4th Cir. 2000). Other courts h ave do ne so as well. See Little v. Wuerl, 929 F.2d 944, 951 (3rd C ir. 1991) (holding that a parochial school teacher could not, because of the exception, file a Title VII claim ev en though she w as discharged becau se she remarried); Scharon v. St. Luke s Episcopal Presbyterian Hosp., 929 F.2d 360, 363 (8th Cir. 1991) (holding that, in a gender discrimination action, a chaplain at a church h ospital could not file 5 a Title VII claim). In other wo rds, engrafting a ministerial exception onto the Title VII protected classes allows the church significant latitude in its employment decisions when the employee in question has duties that are integral to the religious mission. The ministerial exception to Title VII, as it is known, applies to any employee whose primary dutie s consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship. Rayburn v. General Conf. of Seventh-Day Adventist, 772 F.2d 1164, 11 69 (4th Cir. 1985) . See also McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972) (a sex discrimination case, in which the Court found that the role of a Salvation Arm y officer fit within the scope o f the m inisterial e xceptio n ). M ore spe cifically, Rayburn, 772 F.2d at 1168, established what has become known as the primary dutie s test. Pursua nt to that test, the ministerial exception does not depend upon ordination but upon the function of the position. 772 F.2d at 1168 This Court recognized this exception in Montrose. There, we interpreted a Montgom ery County statute that provided, it shall not be an unlawful employment practice * * * [f]or a religious corporation, association, or society to hire and employ employees of a particular religio n, holding that it was not violative of the Free Exercise Clause of the First 6 Amendment nor of Article 36 of the Maryland Declaration of Rights. 363 Md. at 584, 770 A.2d at 122.1 With this context in mind, we turn to the case at hand. B. The respondent, William Moersen ( Moersen ), was employed a s an organ ist at St. Catherine Labouré Parish ( the Parish ) from 1958 to 19762 and again from 1991 to 2002. During these periods, he did not have a written employment con tract. On July 11, 2001, Moersen and Robert G. Amey, the Pastor of the Parish, entered into an employment contract for Moerse n s services a s Organ ist/Pianist/Keyboard Accompanist. Being for a term of two years, fro m July 1, 200 1 until June 30, 2 003, the co ntract provid ed, with resp ect to the respondent s responsibilities: Job objectives: 1 In Montrose Christian School Corporation v. Walsh, 363 Md. 565 , 770 A.2d 111 (2001), a consolidated case, two school employees brought an employment discrimination action against a private religious school and its principal. The employees claimed they had been termina ted for n ot being of the re ligion re presen ted by the schoo l. The case turned on whether a local ordin ance, § 27 -19 of the M ontgom ery County Code, which prohibited employers from discriminating against employees on the basis of religious creed, but carved out an exception for those employees performing religious functions, v iolated Article 36 of the M aryland Dec laration of R ights. This C ourt held that it did not. 363 Md. at 596, 770 A.2d at 129. We are not, under the facts of the case sub judice, asked to resolve the merits of Montrose. 2 Moersen originally began working at the Parish in 1958 as an organist, when he was eleven years old. 7 To Support th e Gospe l message through th e music ministry of Saint Catherine Laboure Church and to encourage the congregation to assume as active part in their musical participation at all liturgical parish functions. Job description: To provide Organ/Piano/Keyboard Music and/or musical accompaniment to both the congregation and the choirs of Saint Catherine Laboure Church at the 10:30 a.m., 12:00 noon and 1:15 p.m. Sunday services; to provide the same at the weekly Saturday 5:15 p.m. service; to provide same at special liturgical celebrations as listed below; to provide musical accompaniment for the congregation at the 7:00 p.m. Mo nday night w eekly novena service. 2. Respon sibilities of the o rganist: a. To build and sustain congregational song at all liturgies. b. To assist in selecting music associated w ith the wors hip at all liturgies in which he/she participates. c. To assist in planning the music associated with the above mentioned liturgies. D. To participate in special liturgical celebrations when requested, especially Christmas, Lenten and Easter liturgies, Confirmation, First Communion, and Reconciliation liturgies. e. To work under the very general su pervision o f the choir directors of the Liturgical Ch oir and the Hispanic C hoir. f. To attend parish staff meetings when appropriate. 3. Related job requirements: a. The organist reports to the director of the choir concerning music and also has, as needed, access to the pastor who is ultimately the person to whom the organis t must answ er to regarding job related issues. b. The organist shall be an ex officio member of all committees concern ing liturg y. 8 c. The organist w ill accept engagements to assist at weddings and funerals and wh en he is un able to accept such engagements he will recommend suitable substitutes if he is asked to do so. The fees for these service s will be a matter between the organist and the party requesting his services. d. The organist w ill receive four (4) weeks of paid vacation each year. For the performance of those duties, the respondent was to receive an annual salary of $26,500.00, in addition to o ther benefits, including hospitalization insu rance. Also, [b]y mutual agreement the p arties to the co ntract may term inate the con tract in writing with advan ce notic e of 90 (ninety) ca lendar d ays. In 2001, the respondent informed the pastor who was in charge of the Parish and employment decisions, that he had been sexually abused by a Parish choirmaster from 1958 to 1964.3 Immediately after reporting the sexua l abuse, the re sponden t alleged that h is employment situation beg an to deterio rate, as the pas tor began to find fault w ith the respondent s performance. Prior to 2001, the respondent s performance record had been exem plary; he had never received a negative performance evaluation or warning during the some twenty-nine (29) years of employment with the Parish. 3 These acts of sexual abuse, Moersen alleged, occurred at the Parish itself during church services, at church-sponsored functions, and at other locations. Beginning in 1958 and through 1964, he said that he communicated to at least four different priests that he was being abused. All of these priests praised him for his honesty and advised him to get himself out of the situation. The Parish, however, never took any action against the offender, he maintained. In 2001, Moersen requested that the pastor relay his allegations of abuse to church superiors and the pastor assured the respondent that he would. 9 In November 2001, Moersen was told that he should retire from his position with the Parish, and was offered up to $2,000.00 to seek psychiatric counseling. Thereafter, on February 17, 2002, the respondent s employment was terminated unilaterally and without advance notice, base d on his a pparent ina bility to work cooperatively. The respondent brought an action alleging breach of contract, wrongful discharge, and intentional infliction of emotional distress against the Parish, its pastor, and the Archdiocese of Washington (collectively, the p etitio ners , ) in the C ircuit Co urt for Pr ince Geo rge s Co unty. The Archdiocese moved to dismiss the respondent s complaint. It argued that the court lacked subject matter jurisdiction and, based on the religious guarantees of the U.S. and Maryland Constitutions, the complaint failed to state a claim. The Circuit Court denied the motion, so that the parties could engage in discovery, albeit limited, as to the nature of the organist position , a matter critical to determin ing whe ther the m inisterial excep tion wou ld apply. In answers to interrogato ries and ans wers to req uests for admissions, the respondent admitted that his contract enumerated several religious purposes. In those answers, he denied, however, discharging any of those duties and stated that he did not encourage the congregation to assume an active part in their musical participation. In moving for summ ary judgmen t, the Archdiocese a rgued that, under Montrose, the respondent s position w as covered by the ministerial e xception. It em phasized th at the 10 respondent s undispute d duty was to play music at religious services for the Catholic Church. The motion was granted, precipitating Moersen s appeal to the Court of Specia l Appe als. In an unreported op inion, the Court of Special Appeals reversed the judgment of the Circuit Court. It held that the court erred in granting the petitioners motion for su mmary judgmen t. We granted the petitioners petition to this Court for a writ of certio rari. Archdiocese v. Moersen, 389 Md. 104 , 883 A.2d 914 (2005). C. Central to determin ing whe ther the min isterial exceptio n applies in the case sub judice is deciding what, in fact, Moersen s role was in the church, which, in turn, requires an assessment of his duties. Until 2001, the respondent worked without a written contract. Only in 2001 was the first written contract introduced into the employment relationship. Although this contract enumerated, with some specificity, job objectives, the respondent maintains that he was not required to perform and had never been required to, and, in fact, d id not, ac hieve o r attemp t to achie ve all of them. As far as he was concerned, his only duties at the Parish were to provide at the 10:30 a.m., 12:00 noon, and 1:15 p.m. Sunday services instrumental music and/or musical accompaniment to both the congregation and the choirs of St. Catherin e Labou re Churc h, to provide those servic es at the we ekly Saturday 5:15 p.m. service, to provide musical accompaniment for the Tuesday and Friday evening weekly choir rehearsals, to p rovide musica l accom panim ent at sp ecial ser vices, when requested, and to provide musical accompaniment for the congregation at the 7:00 p.m. 11 Monday night weekly novena service. Moersen contends that he did not plan, nor select, the music associated with the worship at any of the liturgies. That was don e by either the M usic Director or choir directors. In essence, the respondent claims that he was merely an organ player. The respon dent fu rther co ntends that he s upervi sed no one, an d, in fact, never performed any duties in a leadership, teaching or training capacity. Nor was he required to attend staff or committee meetings. Consistently, the respondent was not listed as a staff member on the church directory of St. Catherine Laboure. As was true with the other religious groups for whom he performed as an organist or pianist, including Jews, Moslem and Hindu, he was not required to profess, support or become a member of the Catholic faith. The petitioners vie wed, and continue to do so, M oersen s ro le quite diff eren tly. They stress that Moersen s contract placed on him the responsibility to (1) build[] and sustain[] congregational song at all liturgies, (2) assist[] in selecting and planning the music associated with liturgical worship, and (3) participat[e] in special liturgical celebrations. In addition, the petitioners note that the contract placed the respondent s duties in a larger religious perspe ctive, [t]o supp ort the Go spel messa ge throug h the mus ic ministry of Sa int Catherine Laboure Church and to encourage the congregation to assume an active part in their musical particip ation at a ll liturgica l parish f unction s. The Court of Special Appeals approach to the dispute in this case was to look at similar cases involving employees of a church whose duties involved providing music for the 12 services and ch urch ev ents. From tha t analysis, the intermediate appellate court held that [a]lthough music is ge nerally an impo rtant part of the Catholic faith, here, [Moersen s] position fell outside the ambit of the ministerial exception. We agree. The Court of Special Appeals primarily relied on Assemany v. Archdio cese of D etroit, 434 N.W.2d 233 (Mich. App . 1989), whose facts were compared to the facts in the case sub judice. In Assemany, the appellan t, a white ma le organist, had graduated from a school operated by the church to train organists and worked for several Catholic parishes in the Detroit area. 434 N.W.2d at 234. He was offered a position as the musical director for the a parish in the Archdiocese, and was given an oral assurance of lifetime employment as long as he did his job properly. Id. The applicable contract prescribed his responsibilities: The music Director will be, in conjunction with the P arish Wo rship Committee, completely responsible for all liturgical music in the parish, and all music connected with paraliturgical services, such as bible vigils, vespers, penan ce serv ices, etc. 434 N.W.2d at 234. In addition, it required the appellant to: select, prepare, an d teach suita ble and ap propriate music to the congregation, prepare music fitting to the theme of each Sunday and holy d ay litu rgy, provide music for the daily masses, select music for and direct the parish choir, aid in the musical pa rticipation of G esu studen ts in their liturgies, assist with and participate in liturgies or musical events on a vicariate lev el and prov ide music for weddin gs and fu nerals[, and . . .] to be present fifteen minutes in advance of any litu rgy or par ish activ ity in whic h he w as to pa rticipate. 434 N.W.2d at 234-35. The app ellant subseq uently 4 assumed the duties of teaching the 4 The appellant entered into a second three-year contract after the initial term expired, again being retained as the musical director. 13 school children at [th e parish] to p articipate in da ily mass and cond ucting a children s choir. . . he handled all of the musical functions for the parish liturgies. 434 N.W.2d at 235. Toward the end of the app ellant s second term as music director, the parish received a new pa stor, and the a ppellant s rela tionship with th e churc h bega n to dete riorate. Id. The new management criticized the appellant s abilities and the choices he made as musical director. Id. Although the appellant was re-signed to a one-year contract, that contract detailed areas th at nee ded im provem ent, and required him to take music lessons to improve his ability and to develop a program to prepare the children to sing at the Saturday and Sunday service s. Id. Before the expiration of the contract term, the appellant was informed by the pastor that [the parish] needed a young er and b lack org anist, and that his contract would not be r enew ed. Id. From the expiration of his con tract term to his dismissal, approximately a year later, the appellant s job description was: Plaintiff was given the new title of pastoral musician. The contract incorporated a job description for that position. Plaintiff was relieved of h is responsibilities to teach mu sic to children in the Gesu school and to direct the child ren's choir. He w as in charge of the liturgical music of the parish and its performance. In addition, plaintiff was to develop a cantor program at Gesu in accord ance w ith the gu idelines of the a rchdio cesan p rogram for can tors. 434 N.W.2d at 235-36. The parish, meanwhile, hired a younger white man to teach the parish students, direct the children s ch oir, and play the m usic for da ily mass. When this man resigned later, the appellant unsuccessfully sought to resume those responsibilities. The parish hired a young black m an inste ad. 434 N.W .2d at 23 6. 14 The appellant filed a discrimination claim against the parish. The trial court, how ever, granted summary judgment to the parish on the ground that, as a nonsecular (religious) employee, id., his claims were barred by the Free Exercise C lause of the First Ame ndment. 434 N.W.2d at 234. The Supreme Court of Mich igan af firmed . Id. The court rejected the appellant s argument that his role was merely secular because, although he was engaged in a religious activity, he was not promoting the church s faith or doctrine. 434 N.W.2d at 238. It explained: Plaintiff was requ ired to have a working knowledge of the Catholic religion and liturgy. He was responsible for the selection and teaching of all liturgical music in the parish. His p rimary respon sibility was to ena ble and encourage the Gesu choir and congregation to participate in the Catholic liturgy through song. Plaintiff assumed a pastoral-liturgical leadership role in the parish. On the basis of the facts of this case , we conc lude that, w hile employed at Gesu, plaintiff was more than just an organist. He was the head of the musical branch of the Catholic liturgy there. Plaintif f was intim ately involved in the propagation of Catholic doctrine and the observance and conduct of Catholic liturgy by the Gesu congregation. On the basis of the function of his position, plaintiff was, thus, clergy . . . His Title VII discrimination claim is therefore barred by the free exercise clause of the First Ame ndme nt of the United States C onstitutio n. Id. Contrasting Assemany and the case sub judice, the Court of Special Appeals opined: The difference between the case before us and Assemany, is that [Moersen] merely played the organ at various services, whereas in Assemany, the plaintiff assumed a far more significant role in religion and liturgy. As the Assemany Court stated, the plaintif f was m ore than just an o rganist. [Moersen], in the case at hand, was just an org anist. Beyond playing the organ and occasiona lly selecting which songs to play, there was no evidence that [Moersen] participated in services beyond that of playing the organ or that he 15 was part of the ministry to spread the Catholic religion . He was not, for example, a choir director; nor was his position similar to that of the organist in Assemany. Again, the meager evidence before us to support the decision of the circuit court is the language of the contract, not the nature of the duties [Moersen] actually performed. *** Although [Moe rsen] s duties were to support the Gospel message through music and to encourage the congre gation to ass ume an a ctive part in the ir musical participation at mass and other religious functions, there is no additional evidence that he did anything more than play the organ and occasiona lly sing during services. Aside from the broad language of the contract, there was no evidence that his primary duties consisted of spreading the Catholic faith; his role as organist did not play an integral or important role in religious ritual or worship. Co nsequen tly, [Moersen ] s position is distinguisha ble from that of Assemany and of choir d irectors. His basic duties were s imply to p lay the org an at relig ious ser vices. Thus, the Court of Special Appeals held that Moersen s Title VII discrimination claim was not bar red by the Free E xercise Clause of the F irst Am endm ent. We agree with the Court of Special Appeals assessme nt. Under the primary duties test, see Rayburn, 772 F.2d at 1169, to be deemed non-secular, the respondent s role must consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision in religious ritual and worship. Id. Cognizant that the function of the position is of greater im portance th an ordina tion, we simply are not convinced that the respondent s role was su pervisory in any respect, involved any form of church governance, or directly required the teaching or the spreading of the religious faith. The petitioners acknowledge the respondent s denials which contradicted the terms of his contract, n amely that he d id not discha rge certain of the enumerated duties and further 16 that he did not support the Gospel of the chu rch that em ployed him a nd, indeed , was ope nly critical of the Catholic faith. Nevertheless, they maintain that the respondent did not merely play the organ. Fo r this Court to make such a ch aracterization , they submit, is to subjectively determine what the respondent s responsibilities were, something the Free Exercise Clause was designed to protect. Moreover, the petitioners point out that, as the Cou rt of Special A ppeals acknowledged, music pla ys a vital role in a number of religious faiths, including in the Catholic faith, where music has deep religious significance. Therefore, they caution, a ruling in the respondent s favor on the issue sub judice would endorse governmental interference with religion, something constitutionally prohibited. Whatever the role of m usic in the C atholic faith, this case involv es the minis terial exception. That, in turn, implicates and requires examination of the role the resp ondent p lays in the church. Its application, notwithstanding the undesirability of judicial intrusio n in church governance and decision making, requires an examination of a complainant s duties and the place of that position in the Church hierarchy; some level of review of the disputed employee s role in the church must be conducted in order to determine whether the ministerial exception applies. It is not enough to say that Moersen s music is central to the church s method of worship; it would be just as easy to say that the manufacturer of the organ contributes to the church s worship, or that the people involved in the upkeep of the organ and worship place contribute to the church s ability to maximize the p articipation in religious ritual. Where 17 does one draw the line?, that is the question. As stated in a case cited by the petitioners, Musan te v. Notre Dame of Easton Church, No. 301-C V-2352, 2004 WL 721774, *6 (D. Conn. Mar. 30, 2004 ), the religious nature of the employer is not dispositive of the inqu iry, since it is unlikely that a church custodian would ever be considered a ministerial emplo yee. The petitioners urge that, contrary to the reasoning of the Court of Special Appeals, the Rayburn primary duties test does not mean that, participation alon e [is] no t enoug h. We do not agree. In Rayburn, the court considered whether the position o f associate in pastoral care was important to the spiritual mission of the Seventh-day Adventist Church. 772 F.2d at 1169. Concluding that it was, the court stated: The role of an associate in pastoral care is so significant in the expression and realization of Seventh-day Adventist beliefs that state intervention in the appointment process w ould exce ssively inh ibit re ligio us lib erty. The asso ciate in pastoral care at Sligo Ch urch is, acco rding to undisputed evidence, pastoral advisor to the Sabbath School that introduces children to the life of the church. She also lea ds small congreg ational grou ps in Bible study. As counselor and as pastor to the singles group, the associate in pastoral care is once again a liaison between the church as an institution and those whom it would touch with its message. Such counseling requires sensitivity both to the human problems of the con gregation and to the church's message of comfort in the face of those problems . Never are people m ore in need of spiritual lead ership than when th ey turn to a pasto r for help in d ealing with their most dif ficult moments. Finally, the selectio n of the ass ociate in pastoral care to stand on the platform during services, to lead out the con greg ation during th e chu rch's solemn rites, and to preach occasionally from the pulpit places the imprimatur of the church upon that person as a wo rthy spiritual leader to whom me mbers may look for consultation, example, and guidance in their own lives and in the life of th e cong regation as a cor porate b ody. Id. 18 While we cannot, and will not, comment on the effect that the respondent s organ music had on the congregation or the members of the choir, we do note that the significance of the respondent s position and the level of his participation is far different than the position occupied by the appellant in Rayburn. The respondent was not in absolute control of the music played, and he did not lead any choirs, teach any hymns, or control any part of the church services in which he participated. He was neither required to have specialized knowledge of the Catholic faith, nor expected to have any particular religious training. All he nee ded w as kno wledg e of ho w to pla y an orga n. To be sure, as Rayburn recognize s, the ministeria l exception does not a pply only to those who have been ordained. Those persons who are not ordained and are untitled, but who, in essence, perf orm ministerial roles are also covere d. 772 F.2 d at 1168- 69. On th is point, the petitioners argue that the respondent s involvement with the church and in the services was essential, that we couldn t hav e done this with a C /D player. . . [h]e didn t function like a win d-up music box. . .The position called for a human being. That the responde nt, howev er, could ha ve been re placed eas ily by another qua lified organ player underscores the non-ministerial-like nature of his position. That the position requires a human being is not dispositive. It is significant that it does not require a specific human being with specific religious-based qualification. His contract to the contrary notwithstanding, the duties that the respondent actually performed, while they occurred during church services, were not ministerial in any sense. 19 D. The cases on which the petitioners rely, although supportive of the proposition that despite its name, it is w ell-recogniz ed that the m inisterial exception applies to lay employees in addition to ordained ministers and clergy members, do not mandate a different result in the case sub judice. They are distinguishable. In each, the subject job or position had a far greater significance to the religious mission than does the respondent s position and, thus, the ministerial exception was appropriately applied. In Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 700 (7th C ir. 2003), at issue was the ro le of Hispanic C ommunications M anager at a Catholic church, whose duties included: composing media releases for the Hispanic community; composing correspondence for the Cardinal; developing a working relationship with the Hispanic media and parishes in the Hispanic community to promote Church activities; developing a workin g relationship with the Hispa nic comm unity to enhance community involvement; composing articles for Church publications; and tran slating C hurch m aterials in to Span ish. Id. The incumbent holder of that position claimed that she had been discriminated against based o n her ge nder an d race. Id. Noting that [i]n dete rmining whether an employee is considered a minister for the purposes of applying this exception, we do not look to ordination but instead to the function of the position, 320 F.3d at 703, citing Roman Catholic Diocese of Raleigh, N.C., 213 F.3d at 801, and s tating the relev ant inquiry, w hether A licea-Hern andez's po sition as Hisp anic 20 Communications Manager can functionally be classified as ministerial, id. at 703, the court concluded that the appellant s position was covered by the exception. The court held: the parties cite numerous cases dealing with positions such as teachers, music directors, and youth counselors, the cases provide limited guidance in making the determination required here. Unlike those positions, a press secretary is responsible for c onveying the message of an organization to the public as a whole. A press secretary, as is evident from observing various pu blic officials and entities, is often the primary communications link to the general populace. The role of th e pre ss secreta ry is critical in message dissemination, and a church's message , of course, is o f singular im portance. A s the D.C . Circuit stated, [D]etermination of whose voice speaks for the church is per se a religious matter. Minke r v. Baltimo re Annu al Conference of the United Methodist Church, 894 F.2d 1354, 1356 (D.C. Cir.1990) (internal quotation marks omitted). Indeed, the rationale for the ministerial exception is founded upon the principle that perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message , and interpre t its doctrin es both to its ow n mem bership and to th e world at large. . . . **** . . . [The appellant] served as a liaison between the Church and the commu nity to whom it directed its message. As Hispanic Communications Manager, Alicea-Hernandez was integral in shaping the message that the Church presen ted to the Hispa nic com munity. We therefore conclude that Alicea-Hernandez served a ministerial function for the Church and her T itle VII cla ims are therefo re barre d by the F irst Am endm ent. 320 F.3d at 704 (f ootnotes and som e citations omitted). A teacher of English and religion at a Catholic school, who had been terminated by the Catholic school after she had publicly supported abortion, was held, in Curay-Cramer v. Ursiline Acad. of Wilmington, Del., Inc., 344 F. Supp. 2d 923, 925 (D . Del. 2 004), to be covered by the ministerial e xception. 3 44 F. Sup p. 2d at 932 . There, although no t owned by the church, relig ious princip les were tau ght at the sch ool so as to indoctrinate [] its 21 students according to those principles. 344 F. Supp. 2d at 926. The appellant acknowledged that her role w as to teach those religiou s principles an d inculcate th em in [her] students. Id. The court decid ed that the m inisterial excep tion applied to the school employee. It reasoned: I am inclined to believe that a religion teacher at a parochial school does indeed fall within the ministerial exc eption, but I need not conclusively answer that question because, regardless of the answer, the deep respect for free exercise rights upon which the exception is based still requires extraordinary judicial caution when addressing claims by lay employees whose duties have religious significance. . . . Here, the alleged victim of gender discrimination was a parochial school teacher of religion and of English, the latter subject, as well as the former, giving rise to frequent discussion of moral issues, as both sides acknow ledge. . . . Thos e religious implica tions are partic ularly clear in the circumstances of this case, in which the Plaintiff was fired during a controversy she helped create over the Catholic Church's long-established doctrin al oppo sition to a bortion . 344 F. Supp. 2d at 932-33. The employee in E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 797 (4th Cir. 2000) was the Director of the Music Ministry, whose duties included: The proposed job description provided that the Director would be. . . fully responsible for the M usic Min istry of the Cath edral. It stated that the major duties of the pos ition included: [t]o assist in the planning of all Parish Liturgies; to direct the par ish choirs; to tea ch the con gregation to actively and vocally participate in the music of the Parish; to recruit and train cantors . Aus tin's actual duties were then summarized in a handwritten document agreed to by her and Father Lewis. This document, like the proposed job description, assigned responsibility to Austin f or the mus ic program of the Cathedral and the Cathedral school. Among the duties listed were: te aching at th e school; supervising and directing choirs; training cantors; and playing for holidays, weddings, and funerals. Austin was also required to approve music for 22 weddings even if she was not available for the ceremonies. She was also made part of the W orsh ip Comm ittee and was requ ired to att end the c omm ittee's month ly meeting s and p articipate in seaso nal liturg y plannin g. 213 F.3d at 798. She claimed that the church discriminated against her on the basis of sex. 213 F .3d at 79 7. Focusing its analysis on the function of the position at issue and not on categorical notions of who is or is not a minister, 213 F.3d at 801, and characterizing the proper inquiry as whether a position is important to the spiritual and pastoral mission of th e church, id., citing Rayburn, 772 F.2d at 1169 (internal quotation m arks omitted), the court concluded that the ministerial exception applied. It explained: The functions of the positions are bound up in the selection, presentation, and teaching of music, w hich is an integ ral part o f Cath olic wo rship an d belief . . . .To hold otherwise would re quire us to sa y that music is su bstantially devoid of spiritu al signif icance in the life of the c hurch. . . . At the he art of this case is the undeniable fact that music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. M usic is an integral part of many different religiou s tradition s. . . . It serves a unique function in worship by virtue of its capacity to uplift the spirit and manifest the relationship between the individual or congregation and the Alm ighty. . . . **** Thus, inasmuch as Austin's duties involve the expression of the church's musical tradition, it is a fallacy to denominate them as merely secular. . . . The efforts of a music minister o r teacher can thus influence the spiritual and pastoral mission of the church as much as one who would lead the congreg ation in prayer, pr each from the pulpit, or tea ch theolog y in school. Austin was clearly a pivotal figu re in most, if not all, aspects of the musical life of the Cathedral and school. The various job descriptions for the music 23 ministry positions, though not dispositive, unmistakably evince the religious significance of her music ministry. Austin was required to assist in the planning of liturgies and was in charge of the parish choirs-functions at the very heart of the church's musical life. The positions also entailed responsibility for recruiting choir members, cantors, and special musicians. . .. The significance of Austin's role in the selection and presentation of religious music is highlighted by the interplay between music and other liturgical forms. The music at religious worship services is often tied to the seasons of the church year or the day's scripture re adings. Ind eed, Fathe r O'Conn or stated in his affidavit tha t Austin's role a t the three w eekly worsh ip services w as to choose music that re flected and enhance d the them e of the Sc riptures of th e day and that would assist the asse mbly of believ ers in their individu al jou rneys of faith. Father O'Connor also stated that Austin was involved in planning music for the special seasons of the year, such as Christmas and Easter, and for special feast days such as the Feast of Christ the King an d the Feast of Pentecos t. And ev en whe re Austin did not select the music herself, the subtle judgmen ts that accomp any the presen tation and in terpretation o f sacred m usic contribute to its spiritual effec t. Austin also served as a representative of the church to the congregation. She played a prominent role in worship services and helped to lead the congregation in song. The significance of her role was reinforced by the fact that Austin was listed on the front page of the Parish bulletin under Parish Staff, along w ith the parish p riests and a P astoral Ass ociate/Director of Religious Educatio n. Austin w as thus a visible (and audible) sign of the church's work through music, as well as a leader of the congregation in the church 's musica l, and the refore s piritual, lif e. **** Indeed, Austin's duties at the Cathedral school appear to have gone far beyond the teaching of music classes. As Austin he rself points o ut in exhibits attached to her affidavit, she was responsible for the music program of the school and served as a resource person for all musical ac tivities in the schoo l. She also assisted in the music preparation for school liturgies and played the piano at Mass. Austin w as respons ible for the sc hool choir a nd schoo l handbell choir. These du ties, coupled with the sp iritual significan ce of her te aching role, 24 render her position at the Cathedra l school ministerial for purposes of the excep tion. 213 F.3d at 802-05. In Musante v. Notre Dame of Easton Church, No. 301-CV-2352, 2004 WL 721774 (D. Conn. Mar. 30 , 2004), the Director of Religious E ducation a t the Catho lic church f ell within the ministerial exception. 2004 WL 721774, *6-7. There, the employee, who was the Director of Religious Education and Pastoral Assistant, claimed she had been the victim of age discrimination. Her duties were: 1) reading scripture and distribu ting Com munion during the d aily 7:30 a.m. Mass; 2) training eucharistic ministers and readers; 3) supervising the Lay Caring Minis try; and 4) visiting h ospitals and ho mebo und pa rishione rs. [U]ndertak[ing] a fact-spec ific inquiry...to determ ine wheth er her duties a t Notre Dame can be said to be important to the spiritual and pastoral mission of the church, citing Rayburn, 772 F.2d at 1168-69, and stressing that her duties included reading scriptures and training ministers, the court held that the employee s job fell easily under the rubric of teachin g or spr eading the faith . 2004 WL 7 21774 , at *6. Fina lly, the petitioners rely on Shaliehsabou v. Hebrew Home of Greater Wash., Inc, 363 F.3d 299, 307 (4th C ir. 2004). In Shaliehsabou, the employee, an Orthodox Jewish man, a mashgiach, or an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws, 363 F.3d at 301, sought to assert the Fair Labor Standards Act against his employer, a nursing home, the Hebrew House of Greater Washington. Significantly, it was established that there was no secular health or safety 25 rationale for the work performed by the [m]ashgichim, 363 F.3d at 302, who [is] qualified under Judaic law to supervise the preparation of food to ensure that it is kosher, must have a knowle dge of the basic laws of kashru th, genera lly have obtained their knowledge of the laws of kathruth through e xperience and study at yesh iva, and p ossess the a uthority to enforce the laws of kathruth and make on-the-spot decisions based on their knowledge and understanding of the situation at hand. Id. Citing the primary duties test established in Rayburn, the court opined: . . . Shaliehsabou's duties required him to perform religious ritual. He supervised and participated in religious ritual and worship. Shaliehsabou was responsible for starting and kosherizing the ovens and cleansing kitchen utensils in accordance with the rules of kashruth. He also oversaw the preparation of koshe r food, a ke y aspect of the Jewis h halak ha. . . . Importantly, it was his resp onsibility to consult with the Vaad for proper resolution of an y concerns. In sum, we cannot say, given the importance of dietary laws to the Jewish religion, that the duties of mashgichim do not involve relig ious wors hip and ritua l. In addition to performing religious ritual, Shaliehsabou occupied a position that is central to the spiritual and pastoral mission of Judaism. As a juridical religion, Judaism is d ependen t upon com pliance w ith its laws, including the kashruth, and Shaliehsabou was the vessel through whom compliance with the kashruth was ensured for residents at the Hebrew Home. . . . Shaliehsabou, through his mashgiach tasks, performed sacerdotal duties. As Shaliehsabou has admitted, in the Jewish faith, non-compliance with dietary laws is a sin. As explained above, Jews view their dietary laws as divine commandments, and compliance therewith is as important to the spiritual well-b eing of its ad herents as music and song are to the mission of the Catholic church. In sh ort, failure to apply the ministerial exception in this case would denigrate the importance of kee ping ko sher to O rthodo x Juda ism. 363 F.3d at 309. 26 Moersen was not required to have any specialized knowledge of the Catholic faith. Stated another w ay, his lack of k nowled ge of ma ny aspects of the Catho lic faith did not prevent him from doing his job. This is unlike the plaintiff in Shaliehsabou, who, without very specific training, would not have been permitted to hold the position of mashgiach, much less perform that role. Further comparisons with the cited cases display key differences. Unlike the employee in Alicea-Hernandez, Moersen was not the voice of the church. It was the Cantor that led the P arish an d choir in song , and M oersen merely ac comp anied h im. Not only did he not p reach or inc ulcate values, he did not decide how the message was expressed. He was not, as the employee in Curay-Cramer was, in a tea ching role, in a position w here his own b eliefs af fected his ability to perfor m his jo b. Roman Catholic Diocese of Raleigh, N.C. has similarities to the case sub judice, to be sure, but there are key differences as well. Moersen was not a music minister. He was not a pivotal figure at the church, did not plan any liturgies himself, and he was not i n charge of the chu rch s mu sical life. He did not teach the choir any music, and he was not listed as P arish Sta ff. The difference between the employee in Musan te and Moersen is also dramatic. Moersen was not asked to train any ministers, and he was not in charge of reading scripture. 27 Furthermore, the cases involving an employee in a musical position that the petitioner cites to highlight the application of the ministerial exception do not further the petitioner s position. Assemany v. Archdiocese of Detroit, 434 N.W.2d 233 (Mich. Ct. App. 1988) does not stand for the general p roposition that an organist position is covered by the ministerial exception. As the Court of Special Appeals explained, the court s holding that the organist was covered by the ministerial exception was based on reasons other than the employee s job title; the organist in Assemany, unlike the respondent, also was the head of the musical branch of the Catholic liturgy in the church, and had a leadership role in the parish. 434 N.W.2d at 238. Similarly, in Egan v. Hemline United Methodist Church, 679 N.W.2d 350 (Minn. C t. App. 2004), the employee was the music director, responsible for managing and rehearsing Hamline Methodist's choir, selecting and p reparing music for regular Sunday services and other special services, playing the organ, and supe rvising othe r church m usic groups, such as the ch ildren's c hoir an d the ha nd bell c hoir. 679 N.W.2d at 352. It was with reference to those duties that the court held that the ministerial exception applied: We recognize that music generally has a central and substantial role in expressing religious faith; it is often described as a ministry of m usic. Mu sic addresses the religious needs of church members and plays an integral part of the worship progr am. Egan states that his res ponsibilities inc lude selectin g and preparing music for religious services. Clearly, Egan had to be familiar with the corpus of church music and theology to select the proper music for such services. In performing this task, he is expected to consider the time in the church year, the scripture readings, the serm on topic, the church 's basic 28 faith princip les, and other religious matters. That Title VII cases have considered music directors exempt from the protections of that act argues in favor of our co ncluding th at a music d irector plays a religious role for [Minn esota Human Rights Act] purp oses . Accept ing the fa cts allege d in E gan's complaint as true, we cannot say the district court erred in finding as a matter of law that Eg an wa s a religio us emp loyee. 679 N.W.2d at 356. Unlike the employee in Egan, the respondent did not lead any choirs, did not teach any music, and, with rare exceptions, the music he played was chosen for him. In Miller v. Bay View United Methodist Church, 141 F. Supp. 2d 1174 (E.D. Wis. 2001), the church s Music Director and Choir Director alleged racial discrimination when he was fired by the church. 141 F. Supp. 2d at 1175. The duties of music Director and Choir Director included choos[ing] appropriate musical selections for the Sunday w orship services and . . . prepar[ing] a nd direct[in g] the choirs in leading th e congreg ation in song, research[ing] the religious themes of the upcoming service s in religio us boo ks. . . and . . . select[ing] music that coincided with the religious themes and meanings of that particular service s, 141 F. Supp. 2d at 1178, as well as [e]n courag[ing] and p romot[ing] M usic Ministry outreach. Id. Noting that [w]here an individual s employment responsibilities are sufficiently ecclesiastical, a court may determine that it is precluded from scrutinizing a religious institution s allegedly discriminatory action in the employment context, 141 F. Supp. 2d at 1181, the court decided that, in the case befo re it, more was required [of the employee] than mere musical ability. 141 F. Supp. 2d at 1182. The court held: 29 The policy sections of both job descriptions state that mu sic in worsh ip rests upon the following music ministry keys, -ministry, not performance, and members are more important than gorgeous music. Both job descriptions also contain a Responsibilities and Expectations section. The Director of Music job description in cludes tw o respons ibilities which are of particular significance with respect to religious criteria. The Director mus t ensure appropriate music for all regular services of the church and encourage and promo te [m]u sic [m] inistry outre ach. Ad ditio nally, one of the responsibilities of the Chancel Choir Director job is, where possible, to choose music to fit the liturgy and or the lectionary. The policies, responsibilities and expectations of the jobs demonstrate that the defendant expected that a music ministry role be fulfilled by the Director of Music and the Choir Director. **** Based on the foregoing, this court conclude s that the plain tiff engag ed in tradition ally eccles iastical o r religiou s activitie s. 141 F. Supp. 2d at 1182-83. In Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999), the Choirmaster and Director of Music, b rought an action again st the church a t which she was employed, alleging a violation of the Americans with Disabilities Act. 198 F.3d at 174. Concluding that the ministerial exception applied to that position, the court explained: Although Ms. Starkman argues that she was hired strictly on the basis of her qualifications as a choir director, it is clear that her job requirements went above and beyond mere musical issues. To be certified as a Director o f Music Min istry, she was not only required to have a masters in music, but also extensive course work in Church Music in Theory and Practice, Choral Conducting, Worship, Choral Vocal Methods, Hymnology, Bible, The olog y, Christian Education, and United Methodist History, Doctrine and Polity. The job description f or Director of Mu sic, states that the D irector of M usic is responsible for the planning, recruiting, impleme nting and e valuating o f music and congregational participation in all aspects of this ministry at Munholland 30 United Metho dist Churc h. Furtherm ore, there is no dispute that re ligious music plays a highly important role in the spiritual mission of the church. Thus, it seems clear that the job specifications required Ms. Starkman to be educated in religion and s erve as a spiritual leader. Second, to constitute a minister for purposes of the ministerial exception, the court must consider whether the plaintiff was qualified and authorized to perform the ceremonies of the Church. . . . Ms. Starkman had several religious duties and responsibilities. For example, she was required to p lan worsh ip liturg y, coordinate church an d worsh ip activities relating to the churc h's Music Min istry, rehearse with choirs and conduct those choirs, hire musicians and lower level music ministry dire ctors, and wr ite ar ticles abo ut the chu rch's Music Ministry for the weekly church bulletin, introducing liturgical seasons for wo rship se rvices. . . . **** Third, and prob ably m ost important, is w hether M s. Starkman engaged in activities traditionally considered ecclesiastical or religious, . . . including whether the plaintiff attends to the rel igious n eeds of the faith ful, . . . . While Ms. Starkman claims that attending to the religious needs of the faithful was not a primary duty, she admits that she was designated to be a ministerial presence to ailing parishioners on occasion. She also concedes that, for her and her cong regation, m usic constitutes a form of prayer that is an integral part of worship services and Scripture readings. The evidence , when ex amined in the light most favorable to the Plaintiff, indicates that Ms. S tarkman d id serve as a spiritual leader and thus p roperly falls un der the r ubric o f this co urt's min isterial ex ception . 198 F.3d at 176-7 7 (citations omitted). The respondent was not required to plan worship liturgy, coordinate church and worship activities relating to the churc h's Music M inistry, rehearse w ith choirs and conduct those choirs, hire m usicians an d lower lev el music ministry directors, and write articles about the chu rch's M usic M inistry for th e wee kly churc h bulleti n. . . . 31 Penultim ately, the petitioners cite Fassl v. Our L ady Perpetua l Help Roman Catholic Church, No. 05 -CV- 0404, 2 005 W L 245 5253 ( E.D. Pa. Oc t. 5, 2005). In that case, the employee was the Director of Music of the church that dismissed her, allegedly in violation of the American with Disabilities Act. Responding to the complaint, the church alleged: the necessary qualifications for its Director of Music go far beyond musical experience and skill. Rather, the qualifications for Director of Music include an ability to teach, to lead, a nd to evok e active partic ipation of th e people in all liturgical celeb rations and an ability to work with the v olunteers who fre ely give their time and talent to the group that the Church deems to be its music ministry. Thus, the position of Director of Music is significantly distinguished from that of purely cus todial, clerical or o ffice perso nnel. At this Church, the Director of Music reportedly requires a thorough understanding of and love for the Liturgy of the Church and the relationship of music to the liturgical life of th e Chu rch. In that case, the appellant herself admitted that her duties were ministerial in nature, she played, sang and/or directed three to five masses per weekend, planned music for liturgies, scheduled and trained the cantors, directed multiple Church choirs, chaired the Renew 2000' liturgy team, and prepared and played for penance services, all school liturgies, all other Holy Days, and contem porary and tee n musi c group s amon g her en umera ted dutie s. The employee did not refute or attempt to refute the allegations describing her role in the musical ministry of the church, leading the court to the conclusion that they were true. 2005 W L 245 5253, a t *9. Th at was, t he cou rt held, d ispositiv e. Id. In Hope In t l Univ. v. Superior Court of Orange County, 14 Cal. Rptr. 3d 643, 655 (Cal. Ct. App. 2004), the court op ined that ind ividuals w hose fun ction is essen tially liturgical, that is, connected to the religious or worship service of the organization are a relatively easy case of when th e exception applies, and listed amon g the exam ples, music 32 and choir directors. That court also noted, ho wever, that purely secular w ork for a religious institution has been h eld not to co me within the ministerial e xception. 1 4 Cal. Rptr. 3d at 65 6, citing Smith v. Raleigh Dist. of N.C. Methodist Church, 63 F. Supp. 2d 694 (E.D.N.C. 1999) (ministerial exception did not apply to church receptionist or pastor s secretary); Lukaszewski v. Nazareth Hosp., 764 F. Supp. 57 (E.D.Pa. 1991) (ministerial exception did not apply to director of plant operations at a religiously affiliated hospital). Here, Moersen was not a music director, he was not a choir director, and did not have any ministerial duties. It is clear to this Court that the respondent did not perform any ministerial duties. As such, the ministerial exception does not apply to him, an d he is free to pursue his employment discrimination claim. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH CO STS. 33 34 IN THE COURT OF APPEALS OF MARYLAND No. 69 September Term, 2005 ______________________________________ ARCHDIOCESE OF WASHINGTON, ET AL. v. WILLIAM T. MOERSEN ______________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Dissen ting Op inion b y Harrell, J ., which Raker and Cathell, JJ., Join. ______________________________________ Filed: June 14, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. I respectfully disse nt. The M ajority opinion, in the process of minimizing the role played by Moersen as the o rganist for St. Catherine Labouré Parish ( the Parish ), as compared to more extensive musical ministry and other ecclesiastical positions examined by other courts, lost sigh t of the simple reality that because Moersen s primary duties consist[ed] of . . . participation in religious ritual and worship, he . . . should be considered clergy. Rayburn v. Gen. Conf. of Seventh-D ay Adve ntists, 772 F.2d 1164, 116 9 (4th Cir. 1985); accord Montrose Christian Sch. C orp. v. Walsh, 363 Md. 565, 590, 770 A.2d 111, 126 (2001). This is true regardless of whether one relies on the duties delineated in Moersen s employment contract, or the activities Moersen professes he actually performed as an emplo yee. Accord ingly, I believe tha t this Court should have accepted the Archdiocese of Washin gton s argu ment invo king the m inisterial exception to the prosecution of Moersen s Title VII cause of action, reversed the judgment of the Court of Special Appeals, and affirm ed the Circ uit Court s g rant of sum mary judgm ent. I. The Ministerial Exception As the Majo rity opinion nec essarily acknowledges, there exists a ministerial exception to the application of the employment anti-discrim ination me asures cod ified in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-1(a). The U.S. Supreme C ourt upheld, against Establishment Clause attack, this exception in Corpor ation of Pre siding Bishop v. Amos, 483 U.S. 327, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987), and this Court also adopted it in Montrose Christian School Corp. v. Walsh. The aim of the exception is to honor the promise of the Free Exercise Clause by placing sectarian matters outside of the subject matter ju risdiction of secu lar cour ts. Bourne v. Ctr. on Children, Inc., 154 Md. App. 42, 54-55, 838 A .2d 371, 379 (200 3). The U.S. Co urt of Ap peals for the Fourth C ircuit declared th at [a]s a general rule, if the employee s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy. Rayburn, 772 F.2d at 1169 (quoting Bruce N. Bagn i, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 C OLUM. L. R EV. 1514, 154 5 (1979)); accord Montrose, 363 Md. at 590, 770 A.2d at 126. Rather than applying just to ministers and ordained clergy, the exception covers an y employee of a religious org anization e ngaged in the ministerial activities delineated by the Fourth Circuit in Rayburn. Montrose, 363 Md. at 590, 770 A.2d at 126; see also Equal Employment Opportunity Comm n v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 802 (4th Cir. 2000) ( [T]he exception has not be en limited to cases involving ordained ministers or priests, but rather requires a fact-specific examination of the functio n of the po sition. ); see generally Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976). The Rayburn court opined tha t [t]his appro ach nece ssarily requires a c ourt to determine whether a position is important to the spiritual and pastoral mission of the church. 772 F.2d at 1169. II. Moersen s Employment Contract Indicates C learly that His Po sition is M inisterial In order to dete rmine w hether a giv en emplo yee s position w ithin a sectarian 2 organization shou ld be deem ed m inisterial , ma ny courts h ave b een g uide d eith er by the language contained in the emp loyment con tract binding the religious organization and the employee, or by the job description created by the religious organization in summarizing the duties o f the em ployee. In Diocese of Raleigh, the Fourth Circuit reviewed [t]he various job descriptions for the music min istry positions, thou gh not disp ositive, in ruling that a music director and music teacher at a Catholi c church and elementary school fulfilled a ministerial role. 213 F.3d at 803. In Tomic v . Catholic D iocese of P eoria, 442 F.3d 1036 (7th Cir. 2006 ), Richard Tomic, a music director and o rganist for th e Dioces e of Peor ia and St. M ary s Cathedr al, sued both entities for discrimination when he was dismissed from employment. Judge Posner, writing for the U.S. Court of Appeals for the Seventh Circuit, turned to the job descriptions developed by the diocese and the church for guidance in determining that Tomic s positio n was truly minis terial. Tomic, 442 F .3d at 10 37. In Scharon v. St. Luke s Episcopal Presbyter ian Hosp itals, 929 F.2d 360 (8th C ir. 1991), a fe deral appellate court was persuaded by the job description of a hospital chaplain in designating that employee s position as minis terial. 92 9 F.2d at 362- 63. In Starkman v. Evans, 198 F.3d 173 (5th C ir. 1999), another federal appellate court utilized the job description of an employee s position in its analysis of whether that position was ministerial. 198 F.3d at 176. In Shirkey v. Eastwind Community Development Corp., 941 F. Supp. 567 (1996), the U.S. District Court for the District of Maryland conclude d that, based solely on the job description approved by 3 the defendant religious organization, the position sought by a job applicant was not ministerial. 941 F. Su pp. at 577-7 8. Anoth er federal trial c ourt, in Miller v. Bay View United Methodist Church, Inc., 141 F. Supp. 2d 1174 (E.D. Wis. 2001), relied on the job description provided by the church in ruling that an employee s role was ministerial. 141 F. Supp. 2d at 1181-82. Even in Assema ny v. Arch diocese of D etroit, 434 N.W.2d 233 (Mich. App. 1988), a case relied upon by the Majority opinion, the court took great pains to detail the contractual duties assigned to the organist, Asse many. 434 N .W.2d at 2 35-36. It w as to those duties that the Assemany court looked in concluding that the organist position in that case was ministerial. 434 N.W.2d at 238. A similar analytical approach is appropriate here. The case was disposed of in the Circuit Court on summary judgment. There was no genuine dispute between the parties as to Moerse n s contractual duties. The Majority opinion quotes Moersen s employment contract with the Parish with resp ect to his duties as Organ ist/Pianist/Keyboard Accom panist: Job objectives: To Support th e Gospe l message through the mus ic ministry of Saint C atherine Laboure Church and to encourage the congregation to assume as active part in their musical participation at all liturgical parish functions. Job description: To provide Organ/Piano/Keyboard Music and/or musical accompaniment to both the congregation and the choirs of Saint Catherine Laboure Church at the 10:30 a.m., 12:00 noon and 1:15 p.m. Sunday services; to provide the same at the week ly Saturday 5:15 p.m. service; to provide same at special liturgical 4 celebrations as listed below; to provide musical accompaniment for the congre gation at the 7 :00 p.m. M onday night w eekly novena service. 2. Responsibilities of the organist: a. To build and sustain congre gational son g at all liturgies. b. To assist in selecting music asso ciated with the worship at all liturgies in which he/she participates. c. To assist in plann ing the mu sic associated with the above mentioned liturgies. d. To participate in special liturgical celebrations when reques ted, esp ecially Ch ristmas, Lenten and Easter liturgies, Confirmation, First Communion, and Reconciliation liturgies. e. To work under the very general supervision of the choir directors of the Liturgical choir and the Hispanic Cho ir. f. To attend parish staff meetings when appropriate. 3. Related job requireme nts: a. The organist reports to the d irector of the choir concerning music and also has, as needed, access to the pastor w ho is ultimate ly the person to whom the organist must answer to regarding job related issues. b. The organist sha ll be an ex o fficio member of all com mitte es co ncer ning liturg y. c. The organist w ill accept engagements to assist at weddings and funerals and when he is unable to accept such engagements he will recommend suitable substitu tes if he is asked to do so . The fees for these services will be a matter between the organist and the party requesting his services. Maj. slip op. at 7-9. As to these duties and r esponsibilities, it is clear to me that Moersen s position was 5 of a ministerial nature. The objective of his position was [t]o Su pport the Gospel message through the music ministry of Saint Ca therine Laboure C hurch and to enc ourage congregational participation in the liturgies though music. A position entailing the performance of religious music, for a church during its religious services, to a religious end cannot possibly be pe rceived as a nything but relig ious. Mo ersen s con tract tasked h im with planning and playing music as an accompaniment to the religious hymns sung by the choir and the congregation. He was required to attend Parish staff meetings and was considered an ex officio member of all committees relating to the liturgies in which he performed. Under these circumstances, the contractual relationship between the Parish and Moersen steeped Moerse n in duties an d respons ibilities tha t primar [il]y . . . cons ist of . . . participation in religious ritual and worship . . . . Rayburn, 772 F.2d at 1169. The Majority opinion, how ever, ignore d the overtly religio us duties ass igned to Moersen and instead accepted Moersen s characterization of his role at the Parish. Cur ious ly, the Majo rity opinion, like the misguided intermediate appellate court here, neglected to consider the number of cases catalogued above where courts looked to the terms of an employee s contract or the job description applicable to the employee s position for guidance. The M ajority opinion should not be allowed to escape the relevance of the employee s job description being a stronge r consid eration. In surveying analogous cases, the Majority opinion itself recites from at least four cases where an employee s job description was weighed explicitly by courts in making an assessment of whether a position was 6 ministerial. Maj. slip op. at 13-15, 22, 29-30, 30-31 (citing Assemany, Diocese of Raleigh, Miller, and Starkman). Indeed, the Majority opinion is forced to acknowledge the religious nature of Moersen s job descrip tion, yet sidesteps it unsatisfactorily by relying on Moersen s incomple te job per forma nce as r eason, f or purp oses of its analysis, to ignore the religious duties the Parish entrusted to Moersen. Maj. slip op. at 20 ( His contract to the contrary notwithstanding, the duties that the respondent actually performed, while they occurred during church service s, were not min isterial in any sens e. ). III. Moersen s Role Solely as an Organist was Ministerial Even with the C ourt majority confining its consideration to Moersen s averment that he only played the organ, I nonetheless conclude that his position was a ministe rial one. M y opinion is compelle d by nothing less than the simple reality that playing the organ for religious services at a Catholic church is an important facilitation of the liturgies in which Moersen participated, o bviously an activity important to the spiritual and pastoral mission of the church. Rayburn, 772 F.2d at 1169. Many jurisdictions have opined on the obvious sectarian significance of music as played during religio us services. T he Fourth Circuit, in Diocese of Raleigh, stated that it is an undeniable fact that music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. 213 F.3d at 802 ; see also Starkman, 198 F.3d at 176 ( [T ]here is no dispute that religious music plays a highly important role in the spiritual mission of the church . ); Tomic, 442 F.3d at 1041. Th ere is also no sho rtage of fa cts 7 adduced by the Archdiocese of Washin gton that m usic occup ies a scared p osition in Ca tholic worship. In particular, the Archdiocese asserted that the pipe organ is to be held in high esteem, for it is the traditional musical instrument that adds a wonderful splendor to the Church s ceremon ies and po werfully lifts up the spirit to God and to high er thing s. Constitution on the Liturgy, Sacrosanctum Councilium, 4 December 1963. D espite this convincing evidence,1 both the Court of S pecial Appeals and the Majority in this Court downplay unsatisfactorily Moersen s role. The fact remain s that becau se music in heres a vital liturgical significance, the perform ance of th at music is equally as significan t. Although Moerse n contend s that he is just an organ player, his apt perform ance of sacred and reverent m usic during worship services belies a secular characterization of his role. Moersen, as the organist, was an active participant in liturgies in a way that an organ manufacturer or a person who merely tunes the organ i s not. See Tom ic, 442 F.3d at 1041. Despite Moersen s arguments, I am persuaded that there is no such thing as just an organ player in religious rituals and ceremonies such as those in which Moersen performed. I am not alone in this view. In Tomic, Richard Tomic, a music director and organist, portrayed his involvement with his church employer in much the same manner as does Moersen here: [s]o far as his role as orga nist is concern ed, his lawyer s ays that all Tom ic did was p lay music . But the re is no o ne wa y to play mu sic. If Tomic played the 1 The Co urt of Spe cial Appe als also acce pted this and acknow ledged tha t music is genera lly an imp ortant p art of th e Cath olic faith . . . . 8 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. 442 F.3d at 1040. In view of this reality, the Seventh Circuit held that Tomic performed tasks that were traditionally ecclesiastical or religious. Tomic, 442 F .3d at 1041. In Diocese of Raleigh, the Fourth C ircuit noted o f a music d irector tasked with selecting and playing music for worship services that even when Austin did not select the music herself, the subtle judgments that accompany the presentation and interpretation of sacred m usic contribute to its spiritual effect. 213 F.3d at 803. The Diocese of Raleigh court then struck the same note as did the Tomic court in addressing the difficulty of accepting an argument such as Moersen s that simply playing the organ has no religious importance: Indeed, it is not easy to divo rce even th e more tec hnical aspe cts of music from its significance in religious worship. Whether a selection is played adagio or andante can have a profound effect on the religious worship and vocal participation of the con gregation. And different performances of the same musical piece can evoke different responses. 213 F.3d at 804. Even though Moersen did not also fulfill the role of music director, he nonetheless served, for all intents and purposes, as the primary human vessel through whom the church chose to spread its message in song. Id. The role of church orga nist almost certainly would b e included at the epicen ter of religiou s activity as described by Professor Bagni, whom the Fourth Circuit quoted in Rayburn in setting out the primary duties test. 2 2 Raybur n v. Gen. C onf. of Seven th-Day A dventists, 772 F.2d 1164 , 1169 (4th Cir. 1985) (quoting Bruce N. Ba gni, Discrimination in the Name of the Lord: A Critical (contin ued...) 9 G. Sidney B uchan an, The Power of Government t o Regulate Class Discrimination by Religious Entities: A Study in Conflicting Values, 43 EMORY L.J. 1189, 1210 (1994) (discus sing B agni, supra, 79 C OLUM. L. R EV. at 1539). Rela tedly, I perceive that the Majo rity opinion ma kes too m uch of the leadership ro le and more extensive responsibilities of music directors and other ecclesiastical figures as contrasted to a mere organist in deciding whether either position is ministerial. As I have pointed out already, at least two federal appellate courts have noted that the manner in which religious music is played is, by itself, a matter o f religious sig nificance w ithout regard to whether the performer selected that music. Further, the Diocese of Raleigh court opined that simply because an employee is answerable to a superior on spiritual matters, that fact does not de jure relegate that employee to any less of a religiously significant role; rather, it is just one factor to consid er. 213 F.3d at 803. What is more important is whether the emp loyee s primary duties consist of . . . participation in religious ritual an d wor ship. Rayburn, 772 F.2d at 1169. It is telling that the primary duties inquiry was dispositive in one of the cases relied upon by the Majority opinion and the Court of Special Appeals. In Assemany, George Assemany served as music director an d organist for Gesu Parish in the Detroit area. In finding that Assemany s position was ministerial, the Court of Appeals of Michigan held that 2 (...continued) Evaluation of Discrimination by Religious Organizations, 79 C OLUM. L. R EV. 1514, 1545 (1979)). 10 he was more than just an orga nist. 434 N.W .2d at 238. T he Majo rity opinion inco rrectly seizes upon this language as proof positive that all church employees, including Moersen, who only play the organ, are not ministerial employees. To do so ignores the real test to be applied; the primary duties test, which was utilized in Assemany. In the paragraph preceding the more than just an organist language, the Assemany court found that the employee s primary responsibility was to enable and encourage the Gesu choir and congreg ation to participate in the Catholic liturgy through song. 434 N.W.2d at 238. Sure ly, this same evaluation must be made of Moersen in his role as th e organist at S t. Catherine Labouré Parish. Although he alleges that he did not select the music to be played at liturgy, he nonetheless enabled and encouraged both the choir and the congregation to worship through music. Again, Moersen did not have to be in a position of leadership to impact the Parish s liturgies through his exercise of his primary responsibilities. Diocese of Raleigh, 213 F.3d at 803. For the reasons expressed above, I would hold that Moe rsen s role w as ministerial, thus placing his e mploymen t discriminatio n claim outside of our secular jurisdiction. Acc ordingly, the judgment of the Court of Special Appeals should be reversed and the matter remanded to that Court with directions to af firm the judgmen t of the Circuit Court for Prince Geo rge s Co unty. Judges Raker and Cathell authorized me to state that they join the views expressed in this dissent. 11
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