Case 5:98-cv-00978-H Document 1 Filed 12/31/1998 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

FILED
.Utl,;.) 'i 100Q .' ,,()

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

DAVID W. DANIEL CLERK

US DISTRICT COURT

E. DIST. N. CAROLINA

HC3\ CIVIL ACTIO~N:CNfOd. rCV-q7D-

.

v.

COMPLAINT

:;

THE ROMAN CATHOLIC DIOCESE OF RALEIGH, NORTH CAROLINA AND SACRED HEART CATHEDRAL

JURY TRIAL DEMAND

Defendants.

NATURE OF THE ACTION
This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and retaliation and to provide appropriate relief to Joyce M. Austin, who was adversely affected by such practices. The Catholic Diocese of Raleigh, North Carolina and Sacred Heart Cathedral reassigned the duties of Joyce M. Austin because of her sex, female, and later demoted and further retaliated against Joyce M. Austin when she opposed discriminatory employment practices.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f) (1) and (3)

SCANNED

\

Case 5:98-cv-00978-H Document 1 Filed 12/31/1998 Page 2 of 6
of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-5(f) (1) and (3) and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Eastern District of North Carolina, Western Division.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706 (f) (1) and (3) of Title VII, 42 U.S.C. § 2000e-5 (f) (1) and (3). 4. At all relevant times, Defendant, the Catholic Diocese of Raleigh, North Carolina which controls and operates Sacred Heart Cathedral (collectively referred to hereinafter as the "Employer"), has continuously been an employer within the meaning of the Act in the State of North Carolina and the City of Raleigh, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U. S . C. § § 2 0 0 0e (b), (g ) and (h)
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Case 5:98-cv-00978-H Document 1 Filed 12/31/1998 Page 3 of 6
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Joyce M. Austin filed a series of charges with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Between September 1992 and May 1997, Defendant Employer engaged in unlawful employment practices at its Raleigh, North Carolina institution, in violation of Section 703(a) (1) and 704(a) of Title VII, 42 U.S.C. § 2000e-2(a) (1) and 42 U.S.C. §2000e-3(a), respectively. The unlawful practices included:
a) reassigning some of Joyce M. Austin's duties as Director of Music Ministries to males because of her sex, female; b) demoting Joyce M. Austin from Director of Music Ministries and part-time school teacher to part-time school teacher, not selecting Joyce M. Austin for the position of Director of Music Ministries when it was advertised as vacant and requiring Joyce M. Austin to work additional hours to cover hours previously missed at work, due to her sex, female, and in retaliation for filing previous charges of discrimination; and, c) demoting Joyce M. Austin from her position as a regular part-time teacher to a part-time teacher, despite her satisfactory performance, in retaliation for filing previous charges of discrimination.
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8. The effect of the practices complained of in paragraph 7 above has been to deprive Joyce M. Austin of equal employment opportunities and otherwise adversely affect her status as an employee, because of her sex and in retaliation for opposing unlawful employment practices.
9. The unlawful employment practices complained of in paragraph 7 above were intentional.
10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Joyce M. Austin.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from reassigning the duties of any individual, 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. B. Order Defendant Employer 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. C. Order Defendant Employer to make whole Joyce M. Austin,
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by providing appropriate affirmative relief necessary to eradicate the effects of its unlawful employment practices, including appropriate back pay with prejudgement interest, in amounts to be determined at trial, and rightful place reinstatement.
D. Order Defendant Employer to make whole Joyce M. Austin by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7 through 10 above, including but not limited to medical expenses, in amounts to be determined at trial.
E. Order Defendant Employer to make whole Joyce M. Austin by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 7 through 10 above, including but not limited to emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Joyce M. Austin punitive damages for its malicious and reckless conduct, as described in paragraph 7 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action.
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JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
Dated this 30th day of December, 1998. C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W.
w~o,D~
MINDY: ~NSTEIN Regio Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
129 West Trade Street Suite 400 Charlotte, NC 28202 (704) 344-6886
6

 
 48 F.Supp.2d 505 (1999)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
The ROMAN CATHOLIC DIOCESE OF RALEIGH, NORTH CAROLINA and Sacred Heart Cathedral, Defendants.
No. 5:98-CV-978-H.
United States District Court, E.D. North Carolina, Western Division.
April 30, 1999.
506 *506 Mindy E. Weinstein, Regional Attorney, E.E.O.C., Charlotte District Office, Charlotte, NC, Rosemary J. Fox, Erania Ebron-Fubara, Sr., Trial Attorney, E.E.O.C., Charlotte, NC, for Equal Employment Opportunity Commission, plaintiff.
Cecil W. Harrison, Jr., Poyner & Spruill, Raleigh, NC, Charles F. Powers, III, Raleigh, NC, Robin T. Morris, Poyner & Spruill, Raleigh, NC, for The Roman Catholic Diocese of Raleigh, North Carolina, defendant.
ORDER
MALCOLM J. HOWARD, District Judge.
This matter is before the court on defendants' motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(1). Both parties 507 have filed *507 briefs of the highest caliber with the court on their respective positions; therefore, this matter is
ripe for ruling.
STATEMENT OF THE CASE
The court is confronted with the clash of two deeply held American convictions. One, embodied in the Civil Rights Acts of 1964 and 1991, is to prevent discrimination; the other, embodied in the First Amendment to the Constitution of the United States, is to protect the free exercise of religion.
This dispute arises out of complaints filed by Joyce M. Austin ("Austin") with the Equal Employment Opportunity Commission ("EEOC"). The EEOC investigated Austin's complaints and filed the present action alleging that defendants, The Roman Catholic Diocese of Raleigh, North Carolina (the "Diocese"), and Sacred Heart Cathedral (the "Cathedral"), discriminated against Austin on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The EEOC alleges that the defendants discriminated against Austin by (1) reassigning some of her duties to males; (2) retaliating against her for filing EEOC complaints by demoting her, failing to select her for a new position and requiring her to work additional hours in her teaching position; and, (3) retaliating against her by demoting her from a "regular" part-time teacher to a parttime teacher.
The Cathedral, a constituent part of the Diocese, is a Roman Catholic Church and part of the hierarchical form of government of the Catholic Church. The Diocese governs the Roman Catholic Church body in Eastern North Carolina.
Austin began her employment relationship with the Cathedral in June 1983, when she became the Director of the Cathedral Folk Choir. In 1984 she began teaching music at the Cathedral Elementary School (the "School"). Father G.L. Lewis ("Father Lewis"), the rector of the Cathedral, promoted Austin to the Director of Music Ministry in July 1990. Her duties at the School covered responsibility for the music program to include two extracurricular musical performances, serving as a resource person for all musical activities, playing piano for mass and assisting in the preparation for School liturgies. (See "Job Description" attached as Ex. A to Austin Aff.)

Upon being promoted to Music Minister, Austin's duties at the Cathedral increased. The Cathedral described the duties in detail as follows:

PARISH NEED: The Cathedral Parish has grown to the point where there is the need of a full time music person; a person who would be part of the Parish Ministry Team, available for on-going Liturgy planning, Ministry team meetings and for consultation in the day to day matters of the parish.

MAJOR DUTIES OF THE PARISH DIRECTOR OF MUSIC WILL BE:

1. To 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.

2. WEDDINGS AND FUNERALS:

To Plan and accompany all weddings. When the Parish Music Minister is away he/she will obtain fitting substitutes for the rite but will retain supervision of musical planning for the wedding ceremony. To plan and accompany all funerals. With the Parish Priests to visit the family of the deceased and assist said family and priest in planning the funeral liturgy.

3. To assist in the planning and to be present for ALL SPECIAL LITURGIES i.e. Holy Days, Holy Week, Penancy Services, First Eucharist, Ash Wednesday, All Souls Day, Thanksgiving Day, 4th of July, Cathedral School Liturgies and all Liturgies when the Bishop is present.

508

*508 4. To TEACH IN THE CATHEDRAL SCHOOL under the supervision of the principal

(See Ex. B "Proposed Job Description," attached to Austin Aff.) (emphasis in the original). The proposed job description called for a total of 17 ½ work hours per week at the Cathedral consisting of five and one-half hours each Sunday, six hours for choir rehearsals, one hour for handbell choir rehearsal, four hours planning for masses and one hour for training cantors. (See id.) Austin's average work week at the School consisted of 21 hours. (See id.)

Father Lewis and Austin summarized these duties in a one page handwritten document which included teaching in the School; directing folk and traditional choirs and training cantors; supervising the spiritual and Hispanic choirs; approving music for weddings, even if unavailable, and playing the organ for weddings; calling or visiting families who are planning funerals; and, attending monthly worship committee meetings and planning seasonal liturgy. (See Ex. C attached to Austin Aff.). Austin was to choose "music that reflected and enhanced the theme of the Scriptures of the day and that would assist the assembly in their individual journeys of faith." (See O'Conner Aff. ¶ 7)

Father Lewis was replaced by Father John Francis O'Conner ("Father Tim") in May 1992. Austin alleges that she began to suffer discrimination in September 1992, when some of her duties were reassigned to males. The duties Austin alleges Father Tim reassigned consist of choirs, other then the Cathedral choir, being brought in to sing at mass, and organists, other than Austin, being used for events at the Cathedral.[1] In February 1995, Austin filed her first claim with the EEOC alleging discrimination based on sex.

Also in 1995, the Cathedral conducted a parish survey on all aspects of the church. The survey indicated a dissatisfaction among members of the parish with the music ministry at the Cathedral. As a result of these concerns, the Cathedral formed a Search Committee to develop a job description for a full-time position to be titled "Director of Music Ministries and Organist." The Search Committee developed a more detailed job description than the one under which Austin performed her duties. The new job description continued to place the responsibility for all music associated with worship on the Director of Music, continued to require the Director of Music to participate on certain parish committees and continued to place responsibility for choir and cantor training on the Director of Music. (See Ex. B attached to O'Conner Aff. and Ex. B attached to Austin Aff.) The revised job description clarified matters that seemed implied in the previous job description. For example, the

new job description explicitly required the Director of Music Ministries to be a practicing Catholic, to have a degree in music or equivalent experience and to "support the Gospel message through song and challenge the assembly to live it more fully." (See Ex. B attached to O'Conner Aff.)
Father Tim informed Austin that her contract covering her duties as Minister of Music at the Cathedral would not be renewed and would expire on June 30, 1995. Austin retained her duties as a part-time teacher at the School. On June 30, 1995, Austin filed her second complaint with the EEOC alleging she had been demoted from Minister of Music to part-time music teacher at the School in retaliation for her February 1995 EEOC filing.
The Search Committee advertised the new position in "The North Carolina Catholic" and other publications. These solicitations garnered approximately 43 applications. The Search Committee considered the applicants 509 and recommended one, Paul *509 Monachino, to Father Tim. After "prayerful reflection" Father Tim selected Paul Monachino as the person who "could best accomplish the spiritual and pastoral functions of [the Music Minister] and who, through leading the musical praise, could challenge and promote the spiritual good of the assembly." ( See O'Conner Aff. ¶ 11). On February 1, 1996, Austin filed a third complaint with the EEOC alleging sex discrimination and retaliation for previous EEOC filings which resulted in not being chosen for the full-time position of Director of Music Ministry.
Austin continued her part-time teaching job at the School. In the Spring of 1997, the principal informed her that she would not be given a teaching contract due to her "part-time" rather than "regular part-time" status. The principal explained that she was considered "part-time" rather than "regular part-time" because the actual number of hours she worked were not enough to be considered "regular part-time." (See Austin Aff. ¶ 23). As a result of this change, Austin filed a fourth charge of discrimination with the EEOC.
The EEOC filed this complaint on Austin's behalf and the defendants have moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Defendants contend that adjudication of the plaintiff's claim constitutes a violation of both the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution. More specifically, defendants contend that the ministerial exception of the Free Exercise Clause requires dismissal as does the Establishment Clause's prohibition against excessive government entanglement in religious affairs. Plaintiff counters that the ministerial exception no longer exists under current Supreme Court precedent and that, even if it does, it does not apply in this case. Plaintiff additionally asserts that this case raises no excessive entanglement problems.
COURT'S DISCUSSION
I. Motion to Dismiss Standard of Review
The plaintiff must carry the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 646 (4th Cir.1999) "When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), `the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'" Id. (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991)). If the material jurisdictional facts are not in dispute, and the moving party is entitled to judgment as a matter of law, then the court should grant the Rule 12(b)(1) motion to dismiss. See id. These principles will guide the court's analysis which follows.
II. The Ministerial Exception
The genesis of the ministerial exception is found in the United States Court of Appeals for the Fifth Circuit's decision in McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972). The Fifth Circuit held that "the application of the provisions of Title VII to the employment relationship existing between ... a church and its minister ... would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by principles of the free exercise clause." Id. at 560.

The ministerial exception is grounded in the First Amendment to the United States Constitution, which states that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof ..." U.S. Const. amend. I. While the Constitution mandates that the State may not establish a religion, the caution against the separation of the principles expounded by religion from the governance of the state was sounded by 510 numerous founding fathers *510 and is clearly evident in the farewell speech of President George Washington. Washington said,

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness 0907 these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity.

George Washington's Farewell Address, September 26, 1796.

While many founders recognized the need for the principles of religion to inform politics, they and the courts also have recognized the need for the church to be free from governmental intrusion into the management of its affairs and matters of faith. As early as 1871 the Supreme Court opined,

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.

Watson v. Jones, 80 U.S. 679, 728-29, 13 Wall. 679, 20 L.Ed. 666 (1871); see also Reynolds v. United States, 98 U.S. 145, 164, 8 Otto 145, 25 L.Ed. 244 (1878) ("Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (1929) (appointing a chaplain is a canonical act, and it is the function of church authorities to determine the chaplain's essential qualifications, and whether candidates possesses them, and, in absence of fraud, collusion, or arbitrariness, decisions of proper church tribunals on such matters, although affecting civil rights, are conclusive in litigation before secular courts); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (permitting civil courts to probe deeply enough into allocation of power within hierarchical church so as to decide religious law governing church polity violates First Amendment in much the same manner as civil determination of religious doctrine); City of Boerne v. Flores, 521 U.S. 507, ____, 117 S.Ct. 2157, 2184, 138 L.Ed.2d 624 (1997) (quoting Thomas Jefferson as considering "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises") (O'Conner, J., dissenting); Bell v. Presbyterian Church, 126 F.3d 328 (4th Cir.1997) (holding that ecclesiastical disputes are beyond the ken of civilian courts).

Not only must the church be free from the meddling of the state, but the government must be free from any overtures by a church to become the established religion of the state. The fear of the state endorsing one religious denomination over another was addressed in a letter by Thomas Jefferson to the Danbury Baptist Association and quoted by the Supreme Court in Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1878) Jefferson assured the Danbury Baptist Association that he

[b]eliev[ed] with you that religion is a matter which lies solely between man and his God; that he

owes account to none other for his faith or his worship; that the legislative powers of the

511

government *511 reach actions only, and not opinions, 0907 I contemplate with sovereign reverence

that act of the whole American people which declared that their legislature should `make no law

respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.
Reynolds, 98 U.S. at 164, 8 Otto 145; see also Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947) ("Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State.'")
While the Free Exercise Clause deepens courts' reluctance to become involved in the affairs of the church, some circumstances warrant intrusion. See Reynolds, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (punishment for bigamy not unconstitutional); Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (generally applicable criminal law not unconstitutional as applied to religious practice); Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (neutral principles of property law can be constitutionally applied to settle church property dispute). However, the ministerial exception will foreclose any intrusion 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 ..." Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir.1985) (quoting Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 Columbia L.Rev. 1514, 1545 (1979)). Rayburn and its progeny provide a framework within which to analyze this dispute. Before conducting the Rayburn's analysis, however, the court must first address plaintiff's contention that the ministerial exception was nullified by the Supreme Court's ruling in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876.
A. Smith and the Survival of the Ministerial Exception
Smith involved two members of the Native American Church, Alfred Smith ("Smith") and Galen Black ("Black"), who ingested peyote, a hallucinogenic drug, as part of a sacramental ritual of their church. The private drug rehabilitation organization for which Smith and Black worked fired them as a result of this behavior. Smith and Black then applied for unemployment compensation, but the State of Oregon denied their application under a state law disqualifying employees discharged for work-related misconduct. Work-related misconduct included violations of the state's controlled substance law which prohibited peyote use. Smith and Black contended that the state must show a compelling interest in order to burden their religious practices, but the Supreme Court rejected this strict scrutiny standard and held that
[t]he government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is `compelling' 0907 permitting him, by virtue of his beliefs, `to become a law unto himself,' contradicts both constitutional tradition and common sense."
Id. at 885, 110 S.Ct. 1595 (citations omitted). Plaintiff contends that the ministerial exception did not survive 512 Smith because *512 Title VII, as a neutral law of general applicability, pierces the Free Exercise Clause according
to Smith. The court agrees with plaintiff that Title VII is a neutral law of general applicability. However, the court disagrees with plaintiff's application of Smith to the ministerial exception.
As defendants point out, no court has rejected the ministerial exception based on Smith. In fact, the United States Court of Appeals for the Fourth Circuit has continued to apply the ministerial exception in the wake of the Smith decision, as have courts in other circuits. See Bell v. Presbyterian Church (U.S.A.), 126 F.3d 328, 331 (4th Cir.1997) ("It has thus become established that the decisions of religious entities about the appointment and removal of ministers and persons in other positions of similar theological significance are beyond the ken of civil courts."); Clapper v. Chesapeake Conference of Seventh-Day Adventists, 166 F.3d 1208, 1998 WL 904528 (4th Cir.1998) (applying ministerial exception to affirm district court's dismissal of plaintiff's complaint for lack of subject matter jurisdiction) (unpublished table decision); Equal Employment Opportunity Commission v. Catholic University of America, 83 F.3d 455 (D.C.Cir.1996) (ministerial exception was not abrogated by Smith); Starkman

v. Evans, 18 F.Supp.2d 630 (E.D.La.1998) (ministerial exception applied to bar American's with Disabilities Act and retaliatory discharge claims); Bollard v. California Province of the Society of Jesus, No. C97-3006 SI, 1998 WL 273011 (N.D.Cal. May 15, 1998) (ministerial exception applied to defeat subject matter jurisdiction) (unpublished table decision). While these reasons alone do not warrant immediate rejection of plaintiff's assertion, they do require a careful analysis of Smith's application.
The Fourth Circuit has explained that "[a] subsequent decision cannot, by mere implication, be held to overrule a prior case unless the principle is directly involved and the inference clear and impelling." Kestler v. Board of Trustees of North Carolina Local Governmental Employees' Retirement System, 48 F.3d 800, 804 (4th Cir.), cert. denied, 516 U.S. 868, 116 S.Ct. 186, 133 L.Ed.2d 124 (1995) . It is uncontested that Smith did not directly involve, overrule or address the ministerial exception.[2] Two very different principles are addressed by the ministerial exception and the holding in Smith.
Smith proclaimed that "[t]he government's ability to enforce generally applicable prohibitions of socially harmful conduct ... `cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" Smith, 494 U.S. at 885, 110 S.Ct. 1595 (citations omitted). The court arrived at this conclusion after an extensive review, and ultimate rejection, of the Sherbert test, which required that governmental actions substantially burdening a religious practice be justified by a compelling government interest. See Smith, 494 U.S. at 883, 110 S.Ct. 1595.
The roots of the ministerial exception date back to the founding of this country. As discussed above, the fear of the establishment of a state church or state religion led to the support for the Establishment Clause. Likewise the fear of government directed religion, which many in America had fled, led to the enactment of the Free Exercise Clause. See generally City of Boerne, 521 U.S. at ____, 117 S.Ct. at 2176-86. The "wall of separation" which 513 keeps the civil government from directing *513 policies and governance of the church, "has become `a variable barrier.'" Rayburn, 772 F.2d at 1167 (quoting Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)).
As early as 1871, the Supreme Court recognized the impropriety of reviewing the decisions of ecclesiastical bodies, see Watson v. Jones, 80 U.S. 679, 13 Wall. 679, 20 L.Ed. 666 (1871), and the Court has recognized a distinction between reviewing actions by individuals as opposed to religious beliefs. See Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244. However, it is an established principle of law that the "appointment and removal of ministers and persons in other positions of similar theological significance are beyond the ken of civil courts ... `on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law.'" Bell, 126 F.3d at 331 (quoting Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. at 713, 96 S.Ct. 2372). One reason Smith does not apply is because the ministerial exception requires no balancing. The court does not engage in a balancing test to determine if the ministerial exception applies, but merely determines if the individual falls within the exception.
A second reason Smith did not destroy the ministerial exception is found in the Court of Appeals for the District of Columbia's ("D.C. Circuit") decision in Equal Employment Opportunity Commission v. Catholic University of America, 83 F.3d 455 (D.C.Cir.1996). The D.C. Circuit held that the ministerial exception survived Smith because, while an individual's religious beliefs cannot excuse him from compliance with an otherwise valid law of general applicability, a church's belief can provide an excuse for the church's actions. See Catholic University, 83 F.3d at 462. The D.C. Circuit provided two reasons for the distinction: first, "the burden on free exercise that is addressed by the ministerial exception is of a fundamentally different character than that at issue in Smith;" and second, "while it is true that some of the cases that have invoked the ministerial exception have cited the compelling interest test ... all of them rely on a long line of Supreme Court cases that affirm the fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as faith and doctrine." Id. (citations omitted). This court agrees with the D.C. Circuit's analysis.
Therefore, the ministerial exception does not depend on measuring the effects of a governmental action on a religious objector's spiritual development, like the analysis Smith rejected. Additionally, because of the historical grounding of the ministerial exception in the First Amendment, see Michael H. v. Gerald D., 491 U.S. 110, 109

S.Ct. 2333, 105 L.Ed.2d 91 (1989) (analysis of society's historical protection of fundamental rights) (Scalia, J., plurality opinion), the court finds that Smith did not overrule the ministerial exception.
B. Application of the Ministerial Exception to Austin
Plaintiff argues alternatively that even if Smith did not extinguish the ministerial exception, the exception does not apply to Austin because her positions were not ministerial in nature.
Rayburn directs that "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, 772 F.2d at 1169. Consequently, whether the ministerial exception applies turns on the primary duties of the employee. Austin's duties involved music ministry in the Catholic Church, which governs over the Cathedral and the School; therefore, it is necessary to examine the role of music in the Catholic Church and whether Austin's position must be Committee on Liturgy of the National 514 Conference of Catholic Bishops *514 (USA) further describes the role in the following way:
63. The entire worshiping assembly exercises a ministry of music. Some members of the committee, however, are recognized for the special gifts they exhibit in leading the musical praise and thanksgiving of Christian assembles. These are the pastoral musicians, whose ministry is especially cherished by the Church.
64. What motivates the pastoral musician? Why does he or she give so much time and effort to the service of the church at prayer? The only answer can be that the church musician is first a disciple and then a minister. The musician belongs first of all to the assembly, the pastoral musician needs to be a believer, needs to experience conversion, needs to hear the Gospel and so proclaim the praise of God. Thus, the pastoral musician is not merely an employee or volunteer. He or she is a minister, someone who shares faith, serves the community, and expresses the love of God and neighbor through music.
(Clay Aff. ¶ 7) The role contemplated by the Catholic church for Ministers of Music is, as the title suggests, ministerial. Therefore, if Austin's primary duties conformed to the role of Minister of Music envisioned by the Church, she would fall within the ministerial exception.
2. Austin's Position as Minister of Music
While plaintiff does not dispute the purely religious role of music within the Catholic Church, it claims that the church's position on the role of music is merely a "lofty description" of the duties Austin performed. However, even the handwritten summation of Austin's duties provides grounds to apply the ministerial exception. Austin was a member of the worship committee at the Cathedral and was responsible for planning music to compliment the liturgy throughout the church season. The function of planning and playing a part in the performance of the liturgy, the public worship of the church, is facially ministerial. Austin's duty as a member of the worship committee also falls firmly within Rayburn's description of "teaching, spreading the faith ... and supervision or participation in religious ritual and worship ..." Rayburn, 772 F.2d at 1169, and requires application of the ministerial exception.
Austin asserts that even if her role at the Cathedral was ministerial, her role as a teacher in the School was not. The primary duties test is again the court's guide to determine if the ministerial exception applies.
Austin's duties at the School encompassed teaching music and "being responsible for the music program of Parish 0907 church and school." (Ex. C attached to Austin Aff.) While the mere teaching of music appreciation to students is not likely a ministerial function, the other elements of the School's music program are ministerial. The music program at the School encompasses School liturgies, prayer services and the School choirs. (See Ex. B attached to Austin Aff.) The Catholic Church considers the music leader "a minister, someone who shares faith, serves the community, and expresses the love of God and neighbor through music." (Clay Aff. ¶ 7 (quoting Liturgical Music Today)). Austin is no less a minister at the School in her role of as music minister than she was in

her role as music minister at the Cathedral. Given the undisputed significance of the role of music in the Catholic Church, and Austin's teaching and supervision of religious ritual and worship, her duties at the School also fall within the ministerial exception.
As Judge Wilkinson observed in Rayburn, "introduction of government standards to the selection of spiritual leaders would significantly and perniciously, rearrange the relationship between church and state. While an 515 unfettered church choice may create minimal infidelity to the objectives *515 of Title VII, it provides maximum protection of the First Amendment right to free exercise of religious beliefs." Id. at 1169.
Consequently, Austin's primary duties at both the Cathedral and the School place her within the ministerial exception and her claims must be dismissed.
III. Establishment Clause
The Lemon test remains the standard for determining whether a statute violates the Establishment Clause. If a statute as applied or in effect (1) serves a secular purpose; (2) has the primary effect of neither advancing nor inhibiting religion; and, (3) fosters no excessive government entanglement with religion, then it does not violate the Establishment Clause. See Lemon, 403 U.S. at 613, 91 S.Ct. 2105; Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (court must consider effect of statute). The only prong of the Lemon test in dispute is the third prong, whether the application of Title VII would foster excessive government entanglement.
Subjection of church employment decisions regarding persons in ministerial positions to Title VII scrutiny creates excessive government entanglement. See Rayburn, 772 F.2d at 1164. Professor G. Sidney Buchanan agrees that certain inner core activities of a religious organization, conducted by religious function employees such as clergy, organists, choirmasters and religious education teachers are protected by the First Amendment from government intrusion. See G. Sidney Buchanan, The Power of Government to Regulate Class Discrimination by Religious Entities: A Study of Conflicting Values, 43 Emory L.J. 1189, 1207-15 (1994). Professor Buchanan illuminates Professor Bruce N. Bangi's core religious beliefs framework. "[P]ure spiritual or integral facets of the actual practice of religion" fall within the core as do modes of worship, rituals and membership policies. See id. Bagni and Buchannan propose that as the church moves outside these core activities the constitutional protections of the First Amendment decrease. See id. The "core analysis" further highlights the unconstitutional entanglement that occurs when the state becomes involved in a church's core activities.
Austin filed three of her four EEOC complaints in response to employment decisions made by the Cathedral. Austin filed her final complaint for actions taken by the parish's parochial school. Because the court holds that the ministerial exception applies to Austin's duties at both the Cathedral and the School, the court's review of Austin's complaints would excessively entangle the state with the church's employment decisions. The EEOC's prayer for relief provides an example of the how intrusive the government's inquiry would be into the church's employment decisional processes. The EEOC requests relief in the form of a permanent injunction prohibiting the alleged unlawful behavior and the institution of "policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful discrimination." (Compl.¶¶ A, B).
As the Rayburn court noted, "[t]he application of Title VII to employment decisions of this nature would result in an intolerably close relationship between church and state both on a substantive and procedural level." Rayburn, 772 F.2d at 1170. The government's intrusion into a church's employment decision regarding the individual who is to be a minister by "shar[ing her] faith, serv[ing] the community, and express[ing] the love of God and neighbor through music," is no doubt an excessive entanglement when the government advocates instituting policies, practices and procedures for an ecclesiastical body.
Plaintiff's claim also fails to satisfy the third prong of the Lemon test and must be dismissed as posing the threat 516 of excessive *516 entanglement of the state with the affairs of the church.

CONCLUSION
For the above stated reasons, the defendants' motion to dismiss for lack of subject matter jurisdiction is GRANTED. The clerk is directed to close this case.
[1] Two "reassignments" occurred in 1992, three in 1993, six in 1994 and three in 1995. (See Ex. D, attached to Austin Aff.).
[2] The EEOC, in Policy Statement No. N-915.049, 2/1/90, recognizes the ministerial exception may exist for clergy, or individuals functioning as clergy. The EEOC reissued the Policy Statement in 1998 and restated: "The Commission will carefully examine the nature of the relationship between the individual and the church on a case by case basis to determine whether to apply the ministerial exception or whether the individual should be considered clergy." Plaintiff, who has the burden of establishing subject matter jurisdiction, has not provided the court with any indication that this policy statement has changed in light of Smith.
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 CM/ECF - NCED - Docket Report

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CLOSED, USMJ_Dixon
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:98-cv-00978-H

Equal Employment Opp v. Roman Catholic Dioce, et al Assigned to: Judge Malcolm J. Howard Demand: $0 Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 12/31/1998 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Erania Ebron-Fubara E.E.O.C. 129 W. Trade St. Suite 400 Charlotte, NC 28202 704-344-6682 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mindy E. Weinstein E. E. O. C. Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202-2799 704-344-6886 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rosemary J. Fox E.E.O.C. 129 W. Trade St. Suite 400 Charlotte, NC 28202 704-344-6878 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant The Roman Catholic Diocese of Raleigh, North Carolina

represented by Cecil W. Harrison, Jr. Poyner & Spruill P. O. Box 10096 Raleigh, NC 27605-0096 919-783-6400 Fax: 919-783-2814

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Defendant Sacred Heart Catheral

Email: cwharrison@poyners.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Powers, III Poyner & Spruill cpowers@poynerspruill.com P. O. Box 10096 Raleigh, NC 27605 919-783-1008 Fax: 783-1075 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Tatum Currin Poyner & Spruill P.O. Box 10096 Raleigh, NC 27605-0096 919-783-6400 Fax: 919-783-1075 Email: rcurrin@poyners.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/31/1998
12/31/1998 12/31/1998 12/31/1998 02/08/1999
02/26/1999 02/26/1999

#

Docket Text

1 Complaint filed - Employment discrimination, to wit, reassignment of duties, due to sex and demotion, inter alia, due to sex. JURY DEMAND. (ll) (Entered: 01/05/1999)
(ll) (Entered: 01/05/1999)
2 Waiver of Service Returned Unexecuted as to Roman Catholic Dioce, Sacred Heart Cathedral. (ll) (Entered: 01/05/1999)
3 Request for Waiver of Service as to Roman Catholic Dioce, Sacred Heart Cathedr (ll) (Entered: 01/05/1999)
4 Waiver of Service Returned Executed as to Roman Catholic Dioce, Sacred Heart Cathedr 1/8/99 Answer due on 3/9/99 for Sacred Heart Cathedr, for Roman Catholic Dioce (dh) (Entered: 02/10/1999)
5 Motion by Roman Catholic Dioce, Sacred Heart Cathedr to dismiss , cs. (response due 3/21/99) (dh) (Entered: 03/03/1999)
6 Memorandum by Roman Catholic Dioce, Sacred Heart Cathedr in support of [5-1] motion to dismiss, cs. (dh) (Entered: 03/03/1999)

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02/26/1999 02/26/1999 03/22/1999 03/22/1999 03/22/1999 04/01/1999 04/06/1999 04/20/1999
04/30/1999
04/30/1999
04/30/1999 06/23/1999 06/25/1999
06/25/1999 07/06/1999
08/11/1999
05/24/2000 06/27/2000

7 Affidavit of Very Reverand John Francis O'Connor (dh) (Entered: 03/03/1999)
8 Affidavit of Reverand Michael G. Clay, D.MIN. (dh) (Entered: 03/03/1999)
9 Memorandum by Equal Employment Opp in opposition to [5-1] motion to dismiss. w/cs. Reply due on 4/8/99. (ll) (Entered: 03/30/1999)
10 Affidavit of Joyce M. Austin by Equal Employment Opp Re: [9-1] opposition memorandum. (ll) (Entered: 03/30/1999)
11 Affidavit of Thomas Colclough by Equal Employment Opp Re: [9-1] opposition memorandum. (ll) (Entered: 03/30/1999)
12 Reply by Roman Catholic Dioce, Sacred Heart Cathedr to response to [5-1] motion to dismiss, cs. (dh) (Entered: 04/06/1999)
Motion(s) submitted: [5-1] motion to dismiss submitted. CASE FILE TO JUDGE HOWARD FOR CONSIDERATION. (dh) (Entered: 04/06/1999)
Plaintiff submitted an administrative substitution of page 12 of their Memorandum in Opposition to Defendant's Motion to Dismiss. (This corrects an error in footnote number 4 on page 12). (ll) (Entered: 04/20/1999)
13 Order granting [5-1] motion to dismiss. The Clerk is directed to close this case. cys served. signed by Malcolm J. Howard, US Judge. OB Ref: CIV OB# 60, P-43 (dh) (Entered: 04/30/1999)
14 Judgment for Roman Catholic Dioce, Sacred Heart Cathedr against Equal Employment Opp. IT IS ORDERED AND ADJUDGED defendants' motion to dismiss is granted and this case is closed. cys served. signed by David W. Daniel, Clerk. OB Ref: CIV OB# 60, P-44 (dh) (Entered: 04/30/1999)
Case closed. Non-Permanent. (dh) (Entered: 04/30/1999)
15 Notice of appeal by Equal Employment Opp (rp) (Entered: 06/25/1999)
Notice of Appellate Action to USCA and counsel re: [15-1] appeal by Equal Employment Opp Appeal Pkg. mailed consisting of Dkting Statement, Transm. Sheet and Index (rp) (Entered: 06/25/1999)
Case submitted to: Appeal Clerk [15-1] appeal submitted. (ll) (Entered: 06/25/1999)
Notice of Docketing ROA from USCA Re: [15-1] appeal by Equal Employment Opp USCA NUMBER: 99-1860 Case Manager: Merlene Smith-Taylor (rp) (Entered: 07/06/1999)
Certificate to USCA and counsel re: [15-1] appeal certifying that the record in this case is complete for purposes of the appeal. Cy. to Judge (rp) (Entered: 08/11/1999)
16 Opinion from USCA Re: [15-1] appeal - AFFIRMED (rp) (Entered: 05/30/2000)
THE MANDATE IN THIS CASE WILL NOT ISSUE AT THE SCHEDULED TIME BECAUSE A TIMELY PETITION FOR REHEARING AND REHEARING EN BANC HAS BEEN FILED (rp) (Entered: 06/27/2000)

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07/26/2000 07/31/2000 07/31/2000

17 Order IT IS ORDERED THAT THE PETITION FOR REHEARING AND REHEARING EN BANC IS DENIED signed by Patricia S. Connor. (rp) (Entered: 07/26/2000)
18 Certified copy of judgment of USCA Re: [15-1] appeal - affirmed (rp) (Entered: 07/31/2000)
**Remove appeal flag - no further appeals pending (rp) (Entered: 07/31/2000)

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 USCA4 Docket Sheet for 99-1860

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General Docket
US Court of Appeals for the Fourth Circuit

Court of Appeals Docket #: 99-1860 Nsuit: 1442 Civil Rights: Jobs EEOC v. Roman Catholic Dio, et al Appeal from: Eastern District of North Carolina at Raleigh

Filed: 6/30/99

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0417-5 : CA-98-978-5-H Presiding Judge: Malcolm J. Howard, District Judge Date Filed: 12/31/98 Date order/judgment: 4/30/99 Date NOA filed: 6/23/99 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: United States Appeal

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None

Docket as of August 26, 2001 11:25 pm

Page 1

99-1860 EEOC v. Roman Catholic Dio, et al

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant

Robert John Gregory 202-663-4059 [COR NTC GVT] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, DC 20507

v.

THE ROMAN CATHOLIC DIOCESE OF RALEIGH, NORTH CAROLINA
Defendant - Appellee

Cecil Webster Harrison, Jr. 919-783-6400 [COR NTC RET] Robin Tatum Morris 919-783-6400 [COR NTC RET] POYNER & SPRUILL 3600 Glenwood Avenue P. O. Box 10096 Raleigh, NC 27605-0096

Charles Francis Powers, III 919-828-0684 [COR NTC RET] SINK, POWERS, SINK & POTTER, LLP P. O. Box 1471 Raleigh, NC 27602

SACRED HEART CATHEDRAL Defendant - Appellee

Cecil Webster Harrison, Jr. (See above) [COR NTC RET]

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Robin Tatum Morris (See above) [COR NTC RET]

Charles Francis Powers, III (See above) [COR NTC RET]

Docket as of August 26, 2001 11:25 pm

Page 2

99-1860 EEOC v. Roman Catholic Dio, et al

6/30/99

Civil case docketed. (mst)

6/30/99

Docketing notice issued. [99-1860] (mst)

7/1/99

Counsel of record form filed by Robert John Gregory for Appellant EEOC. (mst)

7/1/99

Docketing statement filed by Appellant EEOC [3014592-1] T/S needed [Y/N]: n T/S already on file?: n/a. [99-1860] (mst)

7/1/99

Briefing order filed. [99-1860] Appellant(s) brief/joint appendix due 8/10/99 for EEOC. (mst)

7/8/99

Negative disclosure statement filed by Appellee Roman Catholic Dio, Appellee Sacred Heart [99-1860] (mst)

7/8/99

Counsel of record form filed by Cecil Webster Harrison for Appellee Roman Catholic Dio, Appellee Sacred Heart. (mst)

7/9/99

Counsel of record form filed by Robin Tatum Morris for Appellee Roman Catholic Dio, Appellee Sacred Heart. (mst)

7/12/99

Counsel of record form filed by Charles F. Powers for Appellee Roman Catholic Dio, Appellee Sacred Heart. (mst)

8/6/99

Brief joint appendix filed by Appellant EEOC. Type of Service: PM Copies of brief: 8 # brf pages: 34 Copies of apx: 6 # apx pages: 143 Sufficient?[Y/N]: Y [99-1860] Appellee brief due 9/7/99 for Sacred Heart, for Roman Catholic Dio. (aww)

8/20/99

Certification of ROA complete and retained in the District Court. [99-1860] (mst)

9/7/99

Brief filed by Appellee Roman Catholic Dio, Appellee Sacred Heart. Type of Service: CD Copies: 8 # brf pages: 52. Sufficient [Y/N]: y. .. [99-1860] (wtc)

9/24/99

Reply brief filed by Appellant EEOC. Type of Service: PM Copies of brief: 8 # brf pages: 24. Sufficient [Y/N]: Y. .. [99-1860] (aww)

11/5/99

Case tentatively calendared for oral argument Term: 02/00 Place: Ric/Bal. SUBMISSION DEADLINE: 11/15/99. (jle)

11/19/99

Case calendared for oral argument. [99-1860] (jc)

12/10/99

Supplemental authorities (FRAP 28(j)) filed by Appellant EEOC [3102246-1] . [99-1860] (aww)

1/11/00

Supplemental authorities (FRAP 28(j)) filed by Appellant EEOC [3116883-1] . [99-1860] (aww)

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99-1860 EEOC v. Roman Catholic Dio, et al

1/26/00

Motion filed by Appellee Roman Catholic Dio, Appellee Sacred Heart to continue oral argument. [3123852-1]. [99-1860] (mst)

1/26/00

COURT ORDER filed granting motion to continue oral argument [3123852-1] Copies to all counsel. [99-1860] (mst)

1/31/00

Case tentatively calendared for oral argument Term: April Place: Richmond. SUBMISSION DEADLINE: February 7, 2000. (jle)

2/16/00

Case calendared for oral argument. [99-1860] (jc)

4/7/00

Oral argument heard. Courtroom Deputy: Ta. [99-1860] (ta)

5/22/00

Published, authored opinion filed. [99-1860] (mst)

5/22/00

Judgment order filed. Decision: AFFIRMED. EOD Date: 5/22/00. [99-1860] (mst)

6/22/00

Petition filed by Appellant EEOC for rehearing. Number copies filed: 20 [3207842-1]; for rehearing en banc. Number of copies filed: 20 [3207842-2] [99-1860] (mst)

7/18/00

COURT ORDER filed denying motion for rehearing [3207842-1] EOD Date: 7/18/00; denying motion for rehearing en banc [3207842-2] EOD Date: 7/18/00. Copies to all counsel. [99-1860] (mst)

7/26/00

Mandate issued. [99-1860] (mst)

10/26/00

Federal Reporter Citation: 213 F.3d 795. [99-1860] (vsl)

Docket as of August 26, 2001 11:25 pm

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 213 F.3d 795 (2000)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.
THE ROMAN CATHOLIC DIOCESE OF RALEIGH, NORTH CAROLINA; Sacred Heart Cathedral, Defendants-Appellees.
No. 99-1860.
United States Court of Appeals, Fourth Circuit.
Argued: April 7, 2000 Decided: May 22, 2000
7967 *796 *797 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, Philip B. Sklover, Associate General, Lorraine C. Davis, Assistant General, Equal Employment Opportunity Commission, 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.
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.
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 mission 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 798 practicing *798 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 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 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.
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 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 recommended that Paul Monachino be hired. Father O'Connor ultimately hired Monachino for the position. The church states that Monachino, like Austin, is a practicing Catholic. According to the EEOC, Harry Taylor, a nonCatholic 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 799 "responsible for all music associated with worship" *799 and directly accountable to the Rector. 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 participation 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 objectives 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 cooperation and assistance of all the parish ministers, the Director of Music Ministries will support the Gospel message through song and challenge the assembly to live it more fully." The Director was to carry out these religious objectives through specific duties such as: recruiting 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 differently 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 parttime" teacher at the school to a "part-time" teacher. According to Austin, she lost sick day and personal day benefits, 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 injunction prohibiting the church "from reassigning the duties of any individual, 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 matter 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 ministerial exception to Title 800 VII applied to the employment positions at issue and, *800 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 ministerial 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. Shenandoah Baptist Church, 899 F.2d 1389, 1396-97 (4th Cir.1990); Rayburn, 772 F.2d at 1167-69. This constitutionally compelled limitation on civil authority ensures that no branch of secular government trespasses on the most spiritually intimate grounds of a religious community's existence.
Not only is the ministerial exception the well-settled law of this circuit, 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 Conference 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 (7th Cir.1994); Scharon v. St. Luke's Episcopal Presbyterian Hosps., 929 F.2d 360 (8th Cir.1991).[*] These courts have repeatedly emphasized 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 dictates 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 "unquestioned" prerogative of religious organizations to tend to "the ecclesiastical government of all the individual members, congregations, and officers within the general association." Watson v. Jones, 13 Wall. 679, 80 U.S. 679, 728-29, 20 L.Ed. 666 (1871); see also Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (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 801 doctrine.'" Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426
*801 U.S. 696, 721-22, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (alteration in original) (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (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, 96 S.Ct. 2372.
While the ministerial exception promotes the most cherished principles of religious liberty, its contours are not unlimited and its application 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 ordination 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); Rayburn, 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 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 (internal quotation marks omitted). A court must therefore "determine whether a position is important 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 protection is in keeping with the "spirit of freedom for religious organizations [and] independence from secular control or manipulation" reflected in the Supreme Court's free exercise jurisprudence. Kedroff, 344 U.S. at 116, 73 S.Ct. 143. 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 derogate the profound state interest in "assuring equal employment opportunities for all, regardless of race, sex, or national origin." Id. at 1168. Rather, the exception simply recognizes that the "introduction of government standards to the selection of spiritual leaders would significantly, 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.
802 *802 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 limited 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 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 different 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 congregation 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 community. 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 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 religious 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 inspirational 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, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (Jackson, J., concurring). The efforts of a music minister or teacher can thus 803 influence the spiritual and pastoral mission of the church as much as one who *803 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 choirs0907functions 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 Austin0907which Austin claims was essentially the same as her own job description 0907emphasized 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 relating 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." 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 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 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 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 liturgy. 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 spiritual matters before the ministerial exception can be applied. While the exercise of "religious discretion" of this variety may be considered in determining whether a position is ministerial, it is not talismanic. 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 spiritual 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 804 musician . . . is a minister, someone who shares faith, serves the community, and expresses *804 the love of God and neighbor through music." Bishops' Committee on the Liturgy, Liturgical Music Today para. 64 (1982). And the job description for the new 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 himself 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 assembly."
The EEOC also suggests that the religious significance of the hiring decision is somehow diluted by Father O'Connor's statement that the individual selected "must have the knowledge and ability to function in the position." But the record is clear that the required "knowledge 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 concern for church autonomy" that is insufficient to trigger First Amendment 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 intervention 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 ministry thus relate to "how and by whom [churches] spread their message." 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 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 planning, 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. Further, 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 underlies 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, 99 S.Ct. 1313, 59 L.Ed.2d 533 (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 religious meaning of music in the life of the church in this case.
805 *805 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 and pastoral mission of Sacred Heart Cathedral. We are thus confronted 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 judgment of the district court.
AFFIRMED
[*] All circuits to have addressed the question have recognized the continuing 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (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 ministerial 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 themselves, 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, 73 S.Ct. 143, 97 L.Ed. 120 (1952)). We agree with this view, and indeed our own circuit has invoked the ministerial exception after Smith. See Bell, 126 F.3d 328. In fact, the EEOC does not advance any abrogation argument on this appeal.
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