He Who Hires a Piper May Fire a Piper

Posted: Apr 20, 2006 3:37 PM

The opinions of some appellate judges are so much fun to read that court buffs regard them in a class with fine wines. There is vintage Scalia, of course, from the Supreme Court, and vintage Wilkinson from the 4th Circuit. Today a toast is in order for Judge Richard Posner of the 7th Circuit. His opinion two weeks ago in Tomic v. Catholic Diocese of Peoria ranks with the better pressing of judicial grapes. This was a sippin' opinion.

The case was of no particular significance. Until a big blow-up led the parties into court, Richard Tomic was organist and music director for the Catholic Diocese of Peoria, Ill. For reasons not explained in Posner's opinion, the bishop fired him three years ago. Tomic was then 50 years old. He sued for violation of his rights under the Age Discrimination in Employment Act. He lost before Judge Michael L. Mihm (cq) in U.S. District Court and lost again before a three-judge panel at the circuit level. Judges Michael S. Kanne and Diane S. Sykes joined Judge Posner in dismissing his case.

Posner crept up cautiously on this one. Federal courts are secular agencies; therefore, "they do not exercise jurisdiction over the internal affairs of religious organizations."

This fairly pedestrian observation prompted a typically Posnerian aside: "When the United States Constitution was written, England had ecclesiastical courts with curious names, such as the Court of Arches and the Court of Peculiars. Since the United States was not to have a national church, the federal judicial power was not envisaged as extending to the resolution of ecclesiastical controversies."

(The jurisdiction of a Court of Peculiars extended to cases outside the usual jurisdiction of the bishop of a diocese. You may explain this to your next dinner partner when conversation lags. It had nothing to do with the case of Richard Tomic.)

Posner was in his loquacious mode: "The right to form self-governing congregations is unquestioned. All who unite themselves to such a body do so with an implied consent to its government and are bound to submit to it." At least since the 1870s, American courts have upheld "a fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

To be sure, Posner explained, the state's hands-off approach to ecclesiastical matters has its limits. "Federal courts cannot always avoid taking a stand on religious questions."

"If a local congregation of a hierarchical sect seized the local church, changed the locks, and declared itself an independent religious organization, a court would ... enjoin the seizure. Or if, to avoid having to pay the minimum wage to its janitors, a church designated all its employees 'ministers,' the court would treat the designation as a subterfuge."

In the case at hand, Posner saw pitfalls of jurisprudence. If Tomic's suit were kept alive, the diocese plausibly could argue that he was fired for a religious reason, e.g., that the organist wanted to play certain music for Easter and the bishop wanted him to play something else. Such an argument "would propel the court into a controversy, quintessentially religious, over what is suitable music for an Easter service."

There is no "one way" to play music, the court remarked. If Tomic played hymns with a rock 'n' roll beat, or played excerpts from "Jesus Christ Superstar" at an Easter Mass, he would be altering the religious experience of the parishioners. Posner found it "astonishing" that Tomic's counsel could argue that an organist's choice of music could not affect his employment, as if the words of the Gospel could be set with equal congruity to Handel's Messiah or to "Three Blind Mice."

"The religious music played at a wedding is not necessarily suitable for a funeral, and religious music suitable for Christmas is not necessarily suitable for Easter. Even Mozart had to struggle over what was suitable church music with his first patron, Archbishop Colloredo, whom the Mozart family called 'the archbooby.'"

In sum, said Posner, turning at last to the case of this particular petitioner and his supporters, Tomic had no right to a job dependent upon the bishop's discretion. "A federal court will not allow itself to get dragged into a religious controversy even if a religious organization wants it dragged in." In brief, who pays a church organist gets to pick the piper. Judge Posner, 67, doesn't fiddle around.

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