Archdiocese of Washington v. Moersen

BELL, Chief Judge. The central issue in this case involves whether an organist for a Catholic church falls 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 organizations. We shall hold that, under the facts of this case, an organist holding a position similar to that occupied by the respondent does not ⁶⁴⁰ 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. Const., Am. I. These religious prohibitions are applied to the states through the Fourteenth Amendment. Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 876-77 , 110 S.Ct. 1595, 1599 , 108 L.Ed.2d 876, 884 (1990).

See also Cantwell v. Connecticut, 310 U.S. 296, 303 , 60 S.Ct. 900, 903 , 84 L.Ed. 1213, 1217-18 (1940); Levitsky v. Levitsky, 231 Md. 388, 396-97 , 190 A.2d 621, 625 (1963); Craig v. State, 220 Md. 590, 599 , 155 A.2d 684, 690 (1959). The free exercise clause prohibits government regulation of religious beliefs. Wisconsin v. Yoder, 406 U.S. 205, 219 , 92 S.Ct. 1526, 1535 , 32 L.Ed.2d 15, 27 (1972). Legitimate claims to free exercise, however, can be outweighed by government interests, albeit only those of the highest importance.

Yoder, 406 U.S. at 214-15 , 92 S.Ct. at 1532-33 , 32 L.Ed.2d at 23-25 . The free exercise protection is also present in Article 36 of the Declaration of Rights of the Maryland Constitution. It provides, as relevant, that: “... all persons are equally entitled to protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry ...” 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 ⁶⁴¹ neutral laws of general applicability,” even when such laws have, as an incidental effect, the burdening of a particular religious activity, however. City of Boerne v. Flores, 521 U.S. 507, 513 , 117 S.Ct. 2157, 2161 , 138 L.Ed.2d 624, 634 (1997).

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 at 894 ; Levitsky, 231 Md. at 396-397 , 190 A.2d at 625 ; 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 religious belief, on conduct. Church of the Lukumi Babalu Aye, 508 U.S. at 531-32, 113 S.Ct. at 2226 , 124 L.Ed.2d at 489 .

Moreover, the Supreme Court has noted that: “[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 interference.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 , 73 S.Ct. 143, 154-155 , 97 L.Ed. 120, 136-137 (1952). The Supreme Court has made clear that the church can self-govern beyond the reach of judicial power. 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 schools).

Federal courts have reinforced that message. See, e.g., Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299, 1304 (11th Cir.2000) (holding that, in matters of church governance and administration, the govern ⁶⁴² ment 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 interfere with a church’s governance of its own affairs”); Combs v. Central Texas Annual Conference United Methodist Church, 173 F.3d 343, 348 (5th Cir.1999) (noting that the Free Exercise Clause protects a church from government interference with church management); E.E.O.C. v. Catholic University of America, 83 F.3d 455, 463 (D.C.Cir.1996) (holding that the Free Exercise Clause “guarantees a church’s freedom to decide how it will govern itself’). 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 discriminates on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-l (a) carves out a statutory exception, however. 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 religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” (Emphasis added). This “exception” for religious organizations also is embodied in 42 U.S.C. § 2000e-2 (e), which provides: “(2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other edu ⁶⁴³ eational institution or institution of learning is directed toward the propagation of a particular religion.” (Emphasis added). The exception for religious organizations and their employment relationships with persons performing religious duties was considered by the Supreme Court in Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336 , 107 S.Ct. 2862, 2868 , 97 L.Ed.2d 273, 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 consider religious. The line is hardly 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 organization carried out what it understood to be its religious mission.” See also Gellington, 203 F.3d at 1303-1304 (holding that government interference with clergy employment matters violates the Free Exercise Clause); Combs, 173 F.3d at 350 (holding that the judiciary could not rule on an employment decision concerning a minister without violating the Free Exercise Clause). This Court, in addition to recognizing the Title VII exception insulating religious organizations from sanction for discrimination when making employment decisions, based on religious beliefs, even with respect to the protected classes of race, color, sex, and national origin, the other protected classes, has recognized that under Title VII, “the Free Exercise Clause of the First Amendment precludes the application of these Title VII provisions 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 Md. 565, 590 , 770 A.2d 111, 126 (2001), quoting E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 797 (4th Cir.2000). ⁶⁴⁴ Other courts have done so as well.

See Little v. Wuerl, 929 F.2d 944, 951 (3rd Cir.1991) (holding that a parochial school teacher could not, because of the exception, file a Title VII claim even though she w as discharged because she remarried); Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360, 363 (8th Cir.1991) (holding that, in a gender discrimination action, a chaplain at a church hospital could not file a Title VII claim). In other words, 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 duties 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 Adventists, 772 F.2d 1164 , 1169 (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 Army officer fit within the scope of the “ministerial exception”).

More specifically, Rayburn, 772 F.2d at 1168, established what has become known as the “primary duties” test. Pursuant 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 Montgomery 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 religion,” holding that it was not violative of the Free Exercise Clause of the First 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. ⁶⁴⁵ B. The respondent, William Moersen (“Moersen”), was employed as an organist at St. Catherine Labouré Parish (“the Parish”) from 1958 to 1976 2 and again from 1991 to 2002. During these periods, he did not have a written employment contract.

On July 11, 2001, Moersen and Robert G. Amey, the Pastor of the Parish, entered into an employment contract for Moersen’s services as “Organist/Pianist/Keyboard Accompanist.” Being for a term of two years, from July 1, 2001 until June 30, 2003, the contract provided, with respect to the respondent’s responsibilities: “Job objectives: “To Support the Gospel message through the 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. Monday night weekly novena service. ⁶⁴⁶ “2. Responsibilities of the organist: “a.

To build and sustain congregational song at all liturgies. “b. To assist in selecting music associated with the worship 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 supervision of the choir directors of the Liturgical Choir and the Hispanic Choir. “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 organist must answer to regarding job related issues. “b.

The organist shall be an ex officio member of all committees concerning liturgy. “e. The organist will accept engagements to assist at weddings and funerals and when he is unable to accept such engagements he will recommend suitable substitutes 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. “d. The organist will 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 other benefits, including hospitalization insurance.

Also, “[b]y mutual agreement the parties to the contract may terminate the contract in writing with advance notice of 90 (ninety) calendar days.” ⁶⁴⁷ 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 sexual abuse, the respondent alleged that his employment situation began to deteriorate, as the pastor began to find fault with the respondent’s performance. Prior to 2001, the respondent’s performance record had been exemplary; he had never received a negative performance evaluation or warning during the some twenty-nine (29) years of employment with the Parish. 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, based on his “apparent inability 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 petitioners,”) in the Circuit Court for Prince George’s County.

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 determining whether the “ministerial exception” would apply. ⁶⁴⁸ In answers to interrogatories and answers to requests 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 summary judgment, the Archdiocese argued that, under Montrose, the respondent’s position was covered by the ministerial exception.

It emphasized that the respondent’s undisputed duty was to play music at religious services for the Catholic Church. The motion was granted, precipitating Moersen’s appeal to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals reversed the judgment of the Circuit Court. It held that the court erred in granting the petitioners’ motion for summary judgment.

We granted the petitioners’ petition to this Court for a writ of certiorari. Archdiocese v. Moersen, 389 Md. 124 , 883 A.2d 914 (2005). C. Central to determining whether the ministerial exception 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, did not, achieve or attempt to achieve 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. Catherine Laboure Church, to provide those services at the weekly Saturday 5:15 p.m. service, to provide musical accompaniment for the Tuesday and Friday evening weekly choir rehearsals, to provide ⁶⁴⁹ musical accompaniment at special services, when requested, and to provide musical accompaniment for the congregation at the 7:00 p.m.

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 done by either the Music Director or choir directors. In essence, the respondent claims that he was merely an organ player.

The respondent further contends that he supervised no one, and, 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 viewed, and continue to do so, Moersen’s role quite differently. 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 perspective,” “[t]o support the Gospel message through the music ministry of Saint Catherine Laboure Church and to encourage the congregation to assume an active part in their musical participation at all liturgical parish functions.” 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 services and church events. From that analysis, the intermediate appellate court held that “[although music is generally an important 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. Archdiocese of Detroit, 173 Mich.App. 752 , 434 N.W.2d 233 ⁶⁵⁰ (1988), whose facts were compared to the facts in the case sub judice.

In Assemany , the appellant, a white male 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 Parish Worship Committee, completely responsible for all liturgical music in the parish, and all music connected with paraliturgical services, such as bible vigils, vespers, penance services, etc.” 434 N.W.2d at 234 . In addition, it required the appellant to: “select, prepare, and teach suitable and appropriate music to the congregation, prepare music fitting to the theme of each Sunday and holy day liturgy, provide music for the daily masses, select music for and direct the parish choir, aid in the musical participation of Gesu students in their liturgies, assist with and participate in liturgies or musical events on a vicariate level and provide music for weddings and funerals[, and ... ] to be present fifteen minutes in advance of any liturgy or parish activity in which he was to participate.” 434 N.W.2d at 234-35 .

The appellant subsequently 4 “assumed the duties of teaching the school children at [the parish] to participate in daily mass and conducting 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 appellant’s second term as music director, the parish received a new pastor, and the appellant’s relationship with the church began to deteriorate. Id. The new management criticized the appellant’s abilities and the ⁶⁵¹ choices he made as musical director.

Id. Although the appellant was re-signed to a one-year contract, that contract detailed areas that “needed improvement,” 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 services. Id. Before the expiration of the contract term, the appellant was informed by the pastor that “[the parish] needed a younger and black organist,” and that his contract would not be renewed.

Id. From the expiration of his contract 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 his responsibilities to teach music to children in the Gesu school and to direct the children’s choir.

He was in charge of the liturgical music of the parish and its performance. In addition, plaintiff was to develop a cantor program at Gesu in accordance with the guidelines of the archdiocesan program for cantors.” 434 N.W.2d at 235-36 . The parish, meanwhile, hired a younger white man to teach the parish students, direct the children’s choir, and play the music for daily mass. When this man resigned later, the appellant unsuccessfully sought to resume those responsibilities.

The parish hired a young black man instead. 434 N.W.2d at 236 . The appellant filed a discrimination claim against the parish. The trial court, however, granted summary judgment to the parish on the ground that, as a “nonsecular (religious)” employee, id., his claims were barred by the Free Exercise Clause of the First Amendment. 434 N.W.2d at 234 . The Supreme Court of Michigan affirmed.

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: ⁶⁵² “Plaintiff was required 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 primary responsibility was to enable 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 conclude that, while employed at Gesu, plaintiff was more than just an organist. He was the head of the musical branch of the Catholic liturgy there. Plaintiff was intimately 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 Amendment of the United States Constitution.” 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 ‘plaintiff was more than just an organist.’ [Moersen], in the case at hand, was ‘just an organist.’ Beyond playing the organ and occasionally selecting which songs to play, there was no evidence that [Moersen] participated in services beyond that of playing the organ or that he 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. * * * ⁶⁵³ “Although [Moersenj’s duties were to ‘support the Gospel message’ through music and to ‘encourage the congregation to assume an active part in their musical participation’ at mass and other religious functions, there is no additional evidence that he did anything more than play the organ and occasionally 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. Consequently, [Moersen]’s position is distinguishable from that of Assemany and of choir directors.

His basic duties were simply to play the organ at religious services.” Thus, the Court of Special Appeals held that Moersen’s Title VII discrimination claim was not barred by the Free Exercise Clause of the First Amendment. We agree with the Court of Special Appeals’ assessment. 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 importance than “ordination,” we simply are not convinced that the respondent’s role was supervisory 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, namely that he did not discharge certain of the enumerated duties and further that he did not support the Gospel of the church that employed him and, indeed, was openly critical of the Catholic faith. Nevertheless, they maintain that the respondent did not “merely” play the organ. For this Court to make such a characterization, 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 Court of Special Appeals acknowledged, ⁶⁵⁴ “music plays 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 subjudice would endorse governmental interference with religion, something constitutionally prohibited. Whatever the role of music in the Catholic faith, this case involves the ministerial exception. That, in turn, implicates and requires examination of the role the respondent plays in the church. Its application, notwithstanding the undesirability of judicial intrusion 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 participation in religious ritual. Where does one draw the line?, that is the question. As stated in a case cited by the petitioners, Musante v. Notre Dame of Easton Church, No. 301-CV-2352, 2004 WL 721774 , ⁶ (D.Conn. Mar. 30, 2004), “the religious nature of the employer is not dispositive of the inquiry, since it is unlikely that a church custodian would ever be considered a ministerial employee.” The petitioners urge that, contrary to the reasoning of the Court of Special Appeals, the Rayburn primary duties test does not mean that, “participation alone [is] not enough.” We do not agree.

In Rayburn, the court considered whether the position of 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 ⁶⁵⁵ beliefs that state intervention in the appointment process would excessively inhibit religious liberty. The associate in pastoral care at Sligo Church is, according to undisputed evidence, pastoral advisor to the Sabbath School that introduces children to the life of the church. She also leads small congregational groups 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 congregation and to the church’s message of comfort in the face of those problems. Never are people more in need of spiritual leadership than when they turn to a pastor for help in dealing with their most difficult moments. Finally, the selection of the associate in pastoral care to stand on the platform during services, to lead out the congregation during the church’s solemn rites, and to preach occasionally from the pulpit places the imprimatur of the church upon that person as a worthy spiritual leader to whom members may look for consultation, example, and guidance in their own lives and in the life of the congregation as a corporate body.” Id.

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 Ray-bum. 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 needed was knowledge of how to play an organ.

To be sure, as Rayburn recognizes, the ministerial exception does not apply only to those who have been ordained. Those persons who are not ordained and are untitled, ⁶⁵⁶ but who, in essence, perform ministerial roles are also covered. 772 F.2d at 1168-69. On this point, the petitioners argue that the respondent’s involvement with the church and in the services was essential, that “we couldn’t have done this with a C/D player ... [h]e didn’t function like a wind-up music box ... The position called for a human being.” That the respondent, however, could have been replaced easily by another qualified 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. D. The cases on which the petitioners rely, although supportive of the proposition that “despite its name, it is well-recognized that the ‘ministerial’ 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 Cir.2003), at issue was the role of “Hispanic Communications Manager” 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 working relationship with the Hispanic community to enhance community involvement; composing articles for Church publications; and translating Church materials into Spanish.” ⁶⁵⁷ Id. The incumbent holder of that position claimed that she had been discriminated against based on her gender and race.

Id. Noting that “[i]n determining 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 stating the relevant inquiry, “whether Alicea-Hernandez’s position as Hispanic 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 conveying the message of an organization to the public as a whole.

A press secretary, as is evident from observing various public officials and entities, is often the primary communications link to the general populace. The role of the press secretary is critical in message dissemination, and a church’s message, of course, is of singular importance. As the D.C. Circuit stated, ‘[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). 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 interpret its doctrines both to its own membership and to the world at large.’... * * * * “... [The appellant] served as a liaison between the Church and the community to whom it directed its message.

As Hispanic Communications Manager, Alicea-Hernandez was integral in shaping the message that the Church presented ⁶⁵⁸ to the Hispanic community. We therefore conclude that Alicea-Hernandez served a ministerial function for the Church and her Title VII claims are therefore barred by the First Amendment.” 320 F.3d at 704 (footnotes and some 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. Ursuline Acad, of Wilmington, Del, Inc., 344 F.Supp.2d 923, 925 (D.Del.2004), to be covered by the ministerial exception. 344 F.Supp.2d at 932 . There, although not owned by the church, religious principles were taught at the school so as to “indoctrinate[ ] its students according to those principles.” 344 F.Supp.2d at 926 .

The appellant acknowledged that her role was to “teach those religious principles and inculcate them in [her] students.” Id. The court decided that the ministerial exception 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 exception, 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 acknowledge----Those religious implications are particularly 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 doctrinal opposition to abortion.” 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: ⁶⁵⁹ “The proposed job description provided that the Director would be ... 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 description, 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 cantors; 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 meetings and participate in seasonal liturgy planning.” 213 F.3d at 798 . She claimed that the church discriminated against her on the basis of sex. 213 F.3d at 797 . 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 the church,’ ” id., citing Rayburn, 772 F.2d at 1169 (internal quotation marks 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, which is an integral part of Catholic worship and belief... .To hold otherwise would require us to say that music is substantially devoid of spiritual significance in the life of the church.... “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 different religious