PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
v.
No. 99-1860
THE ROMAN CATHOLIC DIOCESE OF
RALEIGH, NORTH CAROLINA; SACRED
HEART CATHEDRAL,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-98-978-5-H)
Argued: April 7, 2000
Decided: May 22, 2000
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Senior Judge Hamilton joined.
_________________________________________________________________
COUNSEL
ARGUED: Robert John Gregory, Senior Attorney, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Appellant. Cecil Webster Harrison, Jr., POYNER and
SPRUILL, L.L.P., Raleigh, North Carolina, for Appellees. ON
BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover,
Associate General Counsel, Lorraine C. Davis, Assistant General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Appellant. Robin Tatum Morris,
POYNER and SPRUILL, L.L.P., Raleigh, North Carolina; Charles F.
Powers, III, SINK, POWERS, SINK and POTTER, L.L.P., Raleigh,
North Carolina, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
The Equal Employment Opportunity Commission (EEOC) brought
an enforcement action under Title VII against the Roman Catholic
Diocese of Raleigh, North Carolina, and Sacred Heart Cathedral. The
EEOC alleged that the church discriminated against Joyce Austin on
the basis of her sex through a series of adverse employment actions
relating to her positions as the Cathedral's Director of Music Ministry
and a part-time music teacher at the Cathedral elementary school. The
district court dismissed the action as barred by the First Amendment,
holding that the well-recognized ministerial exception to Title VII
prohibited the application of the statute to the employment decisions
at issue. See EEOC v. Roman Catholic Diocese of Raleigh, 48 F.
Supp. 2d 505 (E.D.N.C. 1999). Because Austin's primary duties at the
Cathedral and its school consisted of the selection, presentation, and
teaching of music, which is integral to the spiritual and pastoral mis-
sion of the Catholic Church and many other religious traditions, we
affirm the judgment of the district court.
I.
Joyce Austin was hired by Sacred Heart Cathedral in 1983 to be
Director of the Cathedral Folk Choir. Austin is a practicing lay
Roman Catholic. She holds a Bachelor of Music Education degree
from Morningside College in Iowa and a Master of Arts degree in
humanities from Hofstra University in New York. She also has vocal
and instrumental teaching certificates from the states of New York
2
and North Carolina. Sacred Heart Cathedral is a Roman Catholic
church and a constituent part of the Roman Catholic Diocese of
Raleigh, which governs the Roman Catholic churches in Eastern
North Carolina.
In 1984, Austin began to teach music at the Cathedral elementary
school. Her duties as a music teacher included conducting the music
program for students in kindergarten through eighth grade, overseeing
two extracurricular musical performances each year, assisting in the
music preparation for school liturgies, and playing the piano at Mass.
In addition, she was responsible for the school choir and the school
handbell choir. Her job also required her to serve as a resource person
for all musical activities at the school.
In 1990, Father G. L. Lewis, the Rector of the Cathedral at the
time, promoted Austin to the newly created position of Director of
Music Ministry. This position encompassed both responsibility for
music at the Cathedral and teaching music at the Cathedral school.
The proposed job description provided that the Director would be,
along with the Rector, fully responsible for the Music Ministry of the
Cathedral. It stated that the major duties of the position included: "[t]o
assist in the planning of all Parish Liturgies; to direct the parish
choirs; to teach the congregation to actively and vocally participate in
the music of the Parish; to recruit and train cantors." Austin's actual
duties were then summarized in a handwritten document agreed to by
her and Father Lewis. This document, like the proposed job descrip-
tion, assigned responsibility to Austin for the music program of the
Cathedral and the Cathedral school. Among the duties listed were:
teaching at the school; supervising and directing choirs; training can-
tors; and playing for holidays, weddings, and funerals. Austin was
also required to approve music for weddings even if she was not
available for the ceremonies. She was also made part of the Worship
Committee and was required to attend the committee's monthly meet-
ings and participate in seasonal liturgy planning.
In May 1992, Father John Francis O'Connor became Rector of the
Cathedral. Austin claims that between September 1992 and February
1995, Father O'Connor reassigned some of Austin's duties to men,
two of whom were not Catholic. In February 1995, Austin filed a sex
3
discrimination charge with the EEOC based on the reassignment of
these duties to men.
A 1995 parish survey revealed general dissatisfaction with the
music program, and the parishioners voiced the need for improvement
in the Cathedral's music ministry. On June 2, 1995, Father O'Connor
informed Austin that the Director of Music Ministry position was
being redesigned and that she would no longer serve in the position
as of June 30, 1995. Upon her removal, Austin filed a second charge
with the EEOC, alleging that she was terminated because of her sex
and in retaliation for her prior charge. Austin continued, however, to
serve as a part-time music teacher at the elementary school.
The Cathedral advertised the redesigned music ministry position,
which was the full-time position of Director of Music Ministries and
Organist. Austin applied for this position, along with forty-two other
applicants. The Search Committee reviewed the applications and rec-
ommended that Paul Monachino be hired. Father O'Connor ulti-
mately hired Monachino for the position. The church states that
Monachino, like Austin, is a practicing Catholic. According to the
EEOC, Harry Taylor, a non-Catholic male who assumed Austin's
duties in the interim period, was made head of the spiritual choir
under Monachino's supervision.
The Cathedral adopted a job description for the Director of Music
Ministries and Organist position, who would be "responsible for all
music associated with worship" and directly accountable to the Rec-
tor. The job description underscored the relationship of music to the
spiritual mission of the church. For example, the qualifications for
this "liturgical minister" included not only musical experience and
skill, but also "an ability to teach, to lead, and to evoke active partici-
pation of the people in all liturgical celebrations with their varied and
differing musical styles." Underlying all the qualifications was the
need for "a thorough understanding of and love for the Liturgy of the
Church and the relationship of music to the liturgical life of the
Church." The job description also listed two plainly spiritual objec-
tives for the new Director: (1) "To assist in developing a prayerful,
singing assembly through preparation, celebration, and evaluation,
through education and personal ministry;" and (2)"With the coopera-
tion and assistance of all the parish ministers, the Director of Music
4
Ministries will support the Gospel message through song and chal-
lenge the assembly to live it more fully." The Director was to carry
out these religious objectives through specific duties such as: recruit-
ing and training parish choirs, cantors, and musicians; implementing
new repertoire for the assembly; communicating musical selections to
each presider; preparing a weekly worship plan in conjunction with
the Parish Liturgy Committee; and incorporating handbells into the
work of the choirs.
The EEOC claims that the job description for the new Director's
position was quite similar to that for Austin's old Director's position.
Further, it states that the new job was defined in practice no differ-
ently from the role formerly occupied by Austin. According to the
EEOC, the parish priest planned the liturgies, chose the scripture
readings without input from Austin, and had the authority to make
final decisions concerning the music to be used for religious worship.
The EEOC also asserts that despite the written requirement that the
new Director be a practicing Catholic, Father O'Connor stated that
the position did not have to be filled by a Catholic.
In February 1996, Austin filed a third charge of discrimination and
retaliation, challenging the church's decision not to hire her for the
new Director's position. In the spring of 1997, Austin was demoted
from a "regular part-time" teacher at the school to a "part-time"
teacher. According to Austin, she lost sick day and personal day bene-
fits, as well as a tuition reduction for her children at the elementary
school, as a result of this decision. In September 1997, Austin filed
a fourth EEOC charge, alleging that she was demoted in retaliation
for her previous charges.
In December 1998, the EEOC filed suit on Austin's behalf against
the Diocese and the Cathedral in the United States District Court for
the Eastern District of North Carolina. The EEOC asserted claims of
sex discrimination and retaliation under Title VII and 42 U.S.C.
§ 1981a. These claims encompassed the adverse employment actions
about which Austin had complained in her EEOC charges.
The EEOC requested that Austin be awarded compensatory and
punitive damages and sought costs for itself. The EEOC also
requested far-ranging injunctive relief. It sought a permanent injunc-
5
tion prohibiting the church "from reassigning the duties of any indi-
vidual, demoting or failing to rehire any individual due to sex, or any
other employment practice which discriminates on the basis of sex,
and from retaliating against individuals who oppose discriminatory
practices." The EEOC further asked the court to order the church "to
institute and carry out policies, practices, and programs which provide
equal employment opportunities for women, and which eradicate the
effects of its past and present unlawful employment practices."
The church moved to dismiss the complaint for lack of subject mat-
ter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). In April 1999, the
district court granted this motion. The district court held that the min-
isterial exception to Title VII applied to the employment positions at
issue and, accordingly, the First Amendment barred the court from
entertaining the EEOC's claims. The EEOC now appeals.
II.
The ministerial exception to Title VII was first articulated in
McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972), and first
recognized by this court in Rayburn v. General Conference of
Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985). The ministe-
rial exception operates to exempt from the coverage of various
employment laws the employment relationships between religious
institutions and their "ministers." See, e.g., Bell v. Presbyterian
Church (U.S.A.), 126 F.3d 328, 332-33 (4th Cir. 1997); Dole v. Shen-
andoah Baptist Church, 899 F.2d 1389, 1396-97 (4th Cir. 1990); Ray-
burn, 772 F.2d at 1167-69. This constitutionally compelled limitation
on civil authority ensures that no branch of secular government tres-
passes on the most spiritually intimate grounds of a religious commu-
nity's existence.
Not only is the ministerial exception the well-settled law of this cir-
cuit, but it is widely recognized by other courts of appeals. See, e.g.,
Gellington v. Christian Methodist Episcopal Church , 203 F.3d 1299
(11th Cir. 2000); Bollard v. California Province of the Soc'y of Jesus,
196 F.3d 940 (9th Cir. 1999); Combs v. Central Tex. Annual Confer-
ence of the United Methodist Church, 173 F.3d 343 (5th Cir. 1999);
EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Young
v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184
6
(7th Cir. 1994); Scharon v. St. Luke's Episcopal Presbyterian Hosps.,
929 F.2d 360 (8th Cir. 1991).* These courts have repeatedly empha-
sized the constitutional imperative of governmental non-interference
with the ministerial employment decisions of churches.
Moreover, the ministerial exception is rooted in the independence
of the spiritual lives of religious bodies in accordance with the dic-
tates of the First Amendment. Indeed, "civil courts have long taken
care not to intermeddle in internal ecclesiastical disputes." Bell, 126
F.3d at 330. The Supreme Court has always safeguarded the "unques-
tioned" prerogative of religious organizations to tend to "the ecclesi-
astical government of all the individual members, congregations, and
officers within the general association." Watson v. Jones, 80 U.S. 679,
728-29 (1871); see also Gonzalez v. Roman Catholic Archbishop of
Manila, 280 U.S. 1 (1929). For "religious freedom encompasses the
`power [of religious bodies] to decide for themselves, free from state
interference, matters of church government as well as those of faith
and doctrine."' Serbian Eastern Orthodox Diocese for the United
_________________________________________________________________
*All circuits to have addressed the question have recognized the con-
tinuing vitality of the exception after the Supreme Court's decision in
Employment Div., Dep't of Human Resources of Oregon v. Smith, 494
U.S. 872 (1990). See Gellington v. Christian Methodist Episcopal
Church, 203 F.3d 1299, 1302-04 (11th Cir. 2000); Combs v. Central Tex.
Annual Conference of the United Methodist Church, 173 F.3d 343, 347-
50 (5th Cir. 1999); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461-63
(D.C. Cir. 1996). The D.C. Circuit in Catholic Univ. found that the min-
isterial exception survived Smith principally for two reasons: "First, the
burden on free exercise that is addressed by the ministerial exception is
of a fundamentally different character from that at issue in Smith and in
the cases cited by the Court in support of its holding. . . . Second, [cases
invoking the ministerial exception] rely on a long line of Supreme Court
cases that affirm the fundamental right of churches to `decide for them-
selves, free from state interference, matters of church government as well
as those of faith and doctrine' . . . [and] we cannot believe that the
Supreme Court in Smith intended to qualify th[e] century-old affirmation
of a church's sovereignty over its own affairs." 83 F.3d at 462, 463
(quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952)). We
agree with this view, and indeed our own circuit has invoked the ministe-
rial exception after Smith. See Bell, 126 F.3d 328. In fact, the EEOC does
not advance any abrogation argument on this appeal.
7
States of America and Canada v. Milivojevich, 426 U.S. 696, 721-22
(1976) (alteration in original) (quoting Kedroff v. St. Nicholas Cathe-
dral, 344 U.S. 94, 116 (1952)). "In short, the First and Fourteenth
Amendments permit hierarchical religious organizations to establish
their own rules and regulations for internal discipline and government
. . . ." Serbian Eastern Orthodox Diocese, 426 U.S. at 724.
While the ministerial exception promotes the most cherished prin-
ciples of religious liberty, its contours are not unlimited and its appli-
cation in a given case requires a fact-specific inquiry. The ministerial
exception does not insulate wholesale the religious employer from the
operation of federal anti-discrimination statutes. See Rayburn, 772
F.2d at 1171-72; see also Bollard, 196 F.3d at 947 ("[T]he scope of
the ministerial exception to Title VII is limited to what is necessary
to comply with the First Amendment."). For instance, the exception
would not apply to employment decisions concerning purely custodial
or administrative personnel. Rather, the exception shelters certain
employment decisions from the scrutiny of civil authorities so as to
preserve the independence of religious institutions in performing their
spiritual functions. Where no spiritual function is involved, the First
Amendment does not stay the application of a generally applicable
law such as Title VII to the religious employer unless Congress so
provides. See Rayburn, 772 F.2d at 1171.
Our inquiry thus focuses on "the function of the position" at issue
and not on categorical notions of who is or is not a"minister." Id. at
1168. For example, we have expressly rejected any view that ordina-
tion is a prerequisite to the application of the exception, see id. at
1168-69, and courts have routinely applied the exception in cases
involving persons other than ordained ministers. See, e.g., Starkman
v. Evans, 198 F.3d 173 (5th Cir. 1999) (lay choir director); Catholic
Univ., 83 F.3d 455 (member of university canon law faculty); Ray-
burn, 772 F.2d 1164 (non-ordained associate in pastoral care); EEOC
v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir.
1981) (faculty of seminary). The general rule is that "if the employ-
ee's primary duties consist of teaching, spreading the faith, church
governance, supervision of a religious order, or supervision or partici-
pation in religious ritual and worship, he or she should be considered
clergy." Rayburn, 772 F.2d at 1169 (internal quotation marks omit-
ted). A court must therefore "determine whether a position is impor-
8
tant to the spiritual and pastoral mission of the church" in order to
decide whether the ministerial exception applies. Id.
Though its range of application is limited to spiritual functions, the
ministerial exception to Title VII is robust where it applies. This pro-
tection is in keeping with the "spirit of freedom for religious organi-
zations [and] independence from secular control or manipulation"
reflected in the Supreme Court's free exercise jurisprudence. Kedroff,
344 U.S. at 116. The exception precludes any inquiry whatsoever into
the reasons behind a church's ministerial employment decision. The
church need not, for example, proffer any religious justification for its
decision, for the Free Exercise Clause "protects the act of a decision
rather than a motivation behind it." Rayburn , 772 F.2d at 1169.
Of course, the existence of the ministerial exception does not dero-
gate the profound state interest in "assuring equal employment oppor-
tunities for all, regardless of race, sex, or national origin." Id. at 1168.
Rather, the exception simply recognizes that the"introduction of gov-
ernment standards to the selection of spiritual leaders would signifi-
cantly, and perniciously, rearrange the relationship between church
and state." Id. at 1169. Application of the exception thus manifests no
more than the reality that a constitutional command cannot yield to
even the noblest and most exigent of statutory mandates.
III.
This appeal is characterized first by a broad stretch of agreement
between the parties. Both parties accept the validity of the ministerial
exception. The parties also agree that the exception has not been lim-
ited to cases involving ordained ministers or priests, but rather
requires a fact-specific examination of the function of the position.
The litigants part company, however, on the narrow question of
whether the particular employment positions at issue fall within the
ministerial exception. The EEOC argues that the positions were not
essentially religious in nature. It claims that Austin's job functions as
Director of Music Ministry and as a part-time music teacher were
instead "primarily secular." In its view, Austin's positions cannot be
considered ministerial because she was merely "a lay choir director
9
and teacher, charged with the responsibility of training people to sing
and perform music."
We disagree. The music ministry and teaching positions at issue
are ministerial because the positions are "important to the spiritual
and pastoral mission" of the church. Rayburn , 772 F.2d at 1169. The
functions of the positions are bound up in the selection, presentation,
and teaching of music, which is an integral part of Catholic worship
and belief. The Free Exercise Clause therefore bars consideration of
the instant employment discrimination claims. To hold otherwise
would require us to say that music is substantially devoid of spiritual
significance in the life of the church. Such a view cannot stand in
light of the role of religious music in worship and the record in this
case.
At the heart 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. Music is an integral part of many dif-
ferent religious traditions. See generally Enchanting Powers: Music
in the World's Religions (Lawrence E. Sullivan ed., 1997). It serves
a unique function in worship by virtue of its capacity to uplift the
spirit and manifest the relationship between the individual or congre-
gation and the Almighty. Indeed, the church has presented ample
undisputed evidence affirming the centrality of sacred music to the
Catholic faith and the importance of music ministry to the faith com-
munity. For example, Father Michael Clay, a Catholic priest who
holds graduate degrees in liturgical music and theology, stated in his
affidavit that music "helps the faithful to be more easily moved to
devotion and better disposed to receive grace from God."
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. We refuse to demote music below other liturgical
forms or to sever it from its spiritual moorings. We cannot say, for
example, that the reading of scripture or the reciting of prayers is any
more integral to religious worship than the singing of hymns or the
intonation of chants. Whether spoken or sung, psalms lift eyes unto
the hills. It is not for us to place the oratorios of Handel, the cantatas
of Bach, or the simplest of hymns beneath the reading of the sacred
texts from which they draw. The Songs of the Confucian Sacrificial
10
Ceremony, the gamelan music of Javanese mysticism, and the ballads
of Sephardic song can be every bit as spiritually intimate as spoken
prayers. We cannot deny free exercise protection to the former any
more than we can to the latter. Nor can we privilege modes of reli-
gious expression that draw principally from the rational faculties,
such as preaching or the teaching of theology, over those which sum-
mon the more lyrical elements of the human spirit. Indeed, "the inspi-
rational appeal of religion in the[ ] guises [of music, architecture, and
painting] is often stronger than in forthright sermon." Illinois ex rel.
McCollum v. Board of Educ., 333 U.S. 203, 236 (1948) (Jackson, J.,
concurring). The efforts of a music minister or teacher can thus influ-
ence the spiritual and pastoral mission of the church as much as one
who would lead the congregation in prayer, preach from the pulpit,
or teach theology in school.
Austin was clearly a pivotal figure in most, if not all, aspects of the
musical life of the Cathedral and school. The various job descriptions
for the music 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 job description for the
new music ministry position sought by Austin -- which Austin claims
was essentially the same as her own job description-- emphasized
that this "liturgical minister" must "assist in developing a prayerful,
singing assembly" and "support the Gospel message through song and
challenge the assembly to live it more fully." The description also
conferred upon the Director of Music Ministries responsibility "for all
music associated with worship" and detailed a number of duties relat-
ing to the selection and presentation of liturgical music.
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 readings.
Indeed, Father O'Connor stated in his affidavit that Austin's role at
the three weekly worship services was "to choose music that reflected
and enhanced the theme of the Scriptures of the day and that would
assist the assembly of believers in their individual journeys of faith."
11
Father O'Connor also stated that Austin was involved in planning
music for the special seasons of the year, such as Christmas and Eas-
ter, and for special feast days such as the Feast of Christ the King and
the Feast of Pentecost. And even where Austin did not select the
music herself, the subtle judgments that accompany the presentation
and interpretation of sacred music contribute to its spiritual effect.
Austin also served as a representative of the church to the congre-
gation. 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 with the parish priests and
a Pastoral Associate/Director of Religious Education. Austin was 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 musical, and
therefore spiritual, life.
The EEOC attempts, however, to downplay Austin's role in the lit-
urgy. It makes much of the fact that Austin was answerable to the
Rector of the Cathedral, who had the ultimate say over the music to
be played at worship. Yet the EEOC does not deny that Austin played
a major role in the presentation of music to the congregation. Further,
there is no requirement that an individual have the"final say" on spir-
itual matters before the ministerial exception can be applied. While
the exercise of "religious discretion" of this variety may be consid-
ered in determining whether a position is ministerial, it is not talis-
manic. Rather, it is enough that Austin's "primary duties consist of
teaching, spreading the faith, . . . or supervision or participation in
religious ritual and worship." Rayburn, 772 F.2d at 1169.
Nor does the EEOC's contention that the occupants of the music
ministry positions were not required to be Catholic diminish the spiri-
tual significance of the music ministry role. Church documents, the
relevant job descriptions, and Father O'Connor's affidavit reveal that
religious criteria were significant in the hiring decision apart from the
religious affiliation of the minister. For example, Church documents
state that "the pastoral musician . . . is a minister, someone who
shares faith, serves the community, and expresses the love of God and
neighbor through music." Bishops' Committee on the Liturgy, Liturgi-
cal Music Today para. 64 (1982). And the job description for the new
12
Director of Music Ministries position stated that the individual
selected "must bring to the position a thorough understanding of and
love for the Liturgy of the Church and the relationship of music to the
liturgical life of the Church." There is no reason to believe that such
criteria were not important in practice as well. Father O'Connor him-
self stated that he chose the new Director of Music Ministries based
on who he believed "could best accomplish the spiritual and pastoral
functions of that position and who, through leading the musical
praise, could challenge and promote the spiritual good of the assem-
bly."
The EEOC also suggests that the religious significance of the hir-
ing decision is somehow diluted by Father O'Connor's statement that
the individual selected "must have the knowledge and ability to func-
tion in the position." But the record is clear that the required "knowl-
edge and ability" transcended merely secular matters. For example,
Church documents speak of the act of music ministry as a "threefold
judgment": (1) musical, (2) liturgical, and (3) pastoral. See Bishops'
Committee on the Liturgy, Music in Catholic Worship 15-19 (2d ed.
1983). Indeed, it is not easy to divorce even the more technical
aspects 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 congregation. And
different performances of the same musical piece can evoke different
responses.
We are thus faced with more than the "generalized and diffuse con-
cern for church autonomy" that is insufficient to trigger First Amend-
ment protection from the operation of secular laws. Bollard, 196 F.3d
at 948. Rather, the role of the music minister "is so significant in the
expression and realization of [the church's] beliefs that state interven-
tion in the appointment process would excessively inhibit religious
liberty." Rayburn, 772 F.2d at 1168. Put another way, Austin was the
primary human vessel through whom the church chose to spread its
message in song. Employment decisions concerning her music minis-
try thus relate to "how and by whom [churches] spread their mes-
sage." Bell, 126 F.3d at 332. These decisions lie accordingly beyond
judicial competence. See id. at 332-33.
The Fifth Circuit's application of the ministerial exception to a
music ministry position in Starkman is instructive. 198 F.3d 173. The
13
Starkman court held that the First Amendment barred the employment
discrimination claims of a lay choir director. A number of factors
underlying the decision in that case are present here as well. For
instance, Starkman's job description entailed responsibility for plan-
ning, recruitment, and implementation in all aspects of the church's
music ministry. See id. at 176. Starkman was required to plan worship
liturgy, conduct choirs, and hire other musical personnel. See id. Fur-
ther, the court found it undisputed that "religious music plays a highly
important role in the spiritual mission of the church" and that "music
constitutes a form of prayer that is an integral part of worship services
and Scripture readings." Id. at 176, 177.
The integral role of music in the spiritual life of the church under-
lies the application of the ministerial exception to the music teaching
position as well. The Supreme Court has recognized generally the
"critical and unique role of the teacher in fulfilling the mission of a
church-operated school." NLRB v. Catholic Bishop of Chicago, 440
U.S. 490, 501 (1979). The particular teaching position in this case is
of especial significance to the school's religious mission because it
revolves around music. It is thereby bound up in the undeniable reli-
gious meaning of music in the life of the church in this case.
Indeed, Austin's duties at the Cathedral school appear to have gone
far beyond the teaching of music classes. As Austin herself points out
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
activities in the school. She also assisted in the music preparation for
school liturgies and played the piano at Mass. Austin was responsible
for the school choir and school handbell choir. These duties, coupled
with the spiritual significance of her teaching role, render her position
at the Cathedral school "ministerial" for purposes of the exception.
IV.
"[D]etermination of whose voice speaks for the church is per se a
religious matter." Minker v. Baltimore Annual Conference of the
United Methodist Church, 894 F.2d 1354, 1356 (D.C. Cir. 1990)
(internal quotation marks omitted). This is no less true when the voice
that speaks is the voice of song. The functions of the music ministry
and music teaching positions in this case are integral to the spiritual
14
and pastoral mission of Sacred Heart Cathedral. We are thus con-
fronted with a case involving ecclesiastical decisions that the Free
Exercise Clause of the First Amendment places "beyond the ken of
civil courts." Bell, 126 F.3d at 331. Accordingly, we affirm the judg-
ment of the district court.
AFFIRMED
15