Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.
A federal court in Texas ruled that the "ministerial exception" prevented it from resolving a church music director's claim that his church's decision to terminate his employment amounted to unlawful age and disability discrimination. An adult male (the "plaintiff") was terminated from his position as a church's music director. He sued the church and the governing diocese (the "defendants"), claiming that his dismissal violated federal laws prohibiting discrimination in employment on the basis of age and disability. The defendants asked the court to dismiss the case on the basis of the "ministerial exception" doctrine, which generally prohibits the civil courts from resolving employment disputes between churches and persons in ministerial positions.
In determining whether the ministerial exception applied to the plaintiff, the court noted the following facts:
- The plaintiff was responsible for the music at worship services, including the choir.
- He selected music for each Sunday.
- At each worship service he would direct the choir in four hymns, one octavo, one psalm, the Lord's Prayer, the Hallelujah, and the Kyrie.
- He practiced with the choir and taught them how to read music.
- He decided who would perform as cantors at the services.
- He printed and chose content for the worship aids handed out during services.
In 2007 the plaintiff had knee replacement surgery, and was terminated a few months later.
The court concluded that the plaintiff was a "minister" for purposes of the ministerial exception, and therefore it was barred by the First Amendment from resolving his claims. It acknowledged that the courts "have not adopted a uniform general test" for deciding who is a minister. Some courts utilize the "primary duties" test, which asks whether the employee's primary duties are religious in nature. Others use a version of the "primary duties" test, without adopting it. Others use a three-part test first announced in 1999 by a federal appeals court. Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The so-called Starkman test identified three factors to consider in deciding if a church employee is a "minister" for purposes of the ministerial exception:
(1) Are employment decisions regarding the position at issue made "largely on religious criteria"?
(2) Is the employee authorized to perform the ceremonies of the church?
(3) "Probably most important is whether [plaintiff] engaged in activities traditionally considered ecclesiastical or religious."
The Starkman court held that it is "sufficient" to deem an employee's function "ministerial" if only the third prong is satisfied. It concluded that a church's music director was a "minister" and therefore her lawsuit accusing her employing church of employment discrimination had to be dismissed.
The Texas court concluded that the plaintiff was a minister under the Starkman test. Its analysis of the three Starkman factors is summarized below.
1. employment decision made largely on religious criteria
The plaintiff insisted that he was merely a bookkeeper, sound person, custodian, and accompanist, and did not serve any ministerial or pastoral functions. He claimed that his position was entirely secular and that he did not have any special education or experience in liturgical music or liturgical norms.
The church defendants pointed to the plaintiff's job description for evidence of religious criteria. The job description includes a "Brief Job Summary" that reads: "This position reports to the Pastor and is responsible for leading, coordinating, evaluating and guiding the Choirs, Cantors, Orchestra and instrumental musicians that participate in [church] liturgies except for the 5:30 Sunday evening Mass. This position has wide authority to exercise independent judgment and discretion within the scope of the job." The "essential duties" described in the job description include producing high-quality liturgical music, and leadership for the church's choirs and instrumental musicians, including rehearsals, preparation, and music selection. The job description further states that the job requires "knowledge of" liturgical procedures, a wide range of liturgically appropriate music, including Gregorian chant, and documents and teachings of the Catholic Church related to music ministry.
The court concluded that the evidence was too tenuous and conflicting to say that this factor supported ministerial status.
The court concluded that while the plaintiff "tries to downplay his liturgical responsibilities," in fact "all of this evidence shows that he was qualified and authorized to perform ceremonies in the church."
2. qualified and authorized to perform the ceremonies of the Church
The second Starkman factor addresses whether the plaintiff was qualified and authorized to perform ceremonies of the church. The court concluded that he was, despite his claim that he was merely an accompanist, sound man, and bookkeeper. The court noted that his own deposition "revealed that he was much more." He testified that as music director he was responsible for the music at the Saturday night Mass, Sunday morning Masses, and for the choir … that at a typical Mass he would direct the choir in four hymns, one octavo, one psalm, the Lord's Prayer, the Hallelujah, and the Kyrie; he picked the music for each Sunday from a list of prescribed hymns contained in certain books, id. at 126-129; picked the octavos performed by the choir during the Mass; determined who could perform at the Masses and what music they could perform; practiced with the choirs every Tuesday and taught them how to read music; hired various outside coaches to help with the choirs; organized who would perform as cantors at the services; hired replacement cantors and piano players for the times he went on vacation; and printed and chose content for the worship aids handed out at Masses.
The court concluded that while the plaintiff "tries to downplay his liturgical responsibilities," in fact "all of this evidence shows that he was qualified and authorized to perform ceremonies in the church, and the second factor of the Starkman test is met here."
3. engaged in activities traditionally considered ecclesiastical or religious
The third Starkman factor, most determinative in this case, is whether the plaintiff "engaged in activities traditionally considered ecclesiastical or religious." The court concluded that they were. It quoted from the testimony of an expert in Canon Law:
Music enhances the liturgy and is not considered a performance …. In the Catholic Church, sacred music supports the church's prayer by enriching its elements. A music director is integral to the Catholic Mass, including the celebration of the Liturgy of the Word and Liturgy of the Eucharist. The music director is also integral to the celebration of the other important religious ceremonies and sacraments of the Catholic Church …. A music director also serves the Church's spiritual and pastoral missions by designing and implementing a music program through which the faithful are able to more appropriately worship God in the Mass, other liturgies, and prayerful events. Additionally, through music, the Music Director is to develop fellowship among the faithful. As such, the Music Director at the Church leads an important spiritual and religious fellowship for the Church that is essentially religious in nature. In conclusion, the Music Director, including [the plaintiff] is a worship leader of the Church.
The court concluded:
As Music Director, plaintiff's responsibility was to lead and provide music for the Mass, including liturgical portions such as the Psalm and Kyrie. Plaintiff was not merely an accompanist and the evidence does not support that he believed this. He stated in a letter to a [deacon] that, "we rightly thought that by our labor we were helping to unfold the Creator's work and contributing, by our personal industry, to the realization in history of the divine plan." Plaintiff has presented no evidence that somebody else led the Choir at the Masses. Plaintiff's claims that the choir led itself is without merit …. Moreover, even assuming he delegated some of his duties to others, Plaintiff was responsible for the final product presented to the congregation. His role as Music Director was ecclesiastical and spiritual.
The court concluded: "As music director, the plaintiff performed functions that are considered ecclesiastical or religious. He participated in religious rituals and played a spiritual leadership role at [the church]. His dismissal from his position as music director was painful for him and his family (who were also highly involved in the church), expressly because of the relationship between his position at the church and his spiritual beliefs. Accordingly, the ministerial exception applies and the plaintiff's age and disability discrimination claims are barred."
What This Means for Churches:
This case provides helpful guidance in the definition of the term "minister" for purposes of the ministerial exception. In 2012, the United States Supreme Court unanimously affirmed the ministerial exception, but declined to define the term "minister." That is understandable, since it would be difficult to fashion a definition that would apply in all cases. The Supreme Court left the definition of this essential term to other courts in other cases.
The court in this case chose to apply the Starkman test. A minority of courts that have applied the ministerial exception have used this test. Many more courts have applied a definition that focuses on a person's primary duties: "As 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 v. General Conference of Seventh-day Adventists772 F.2d 1164 (4th Cir. 1985).
In many cases, both tests will produce similar results.
One other aspect of this case merits attention. The court placed great weight on the plaintiff's job description. The importance of job descriptions in ministerial exception cases cannot be understated. Churches should review job descriptions, especially for non-ordained staff, to see if employees who might meet the definition of "minister" for purposes of the ministerial exception have job descriptions that highlight and stress their religious functions. Catholic Diocese, 2011 WL 4352771 (W.D. Tex. 2011).
This Recent Development first appeared in Church Law and Tax Report, May/June 2012.