In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4219

RICHARD TOMIC,

Plaintiff-Appellant,

v.

CATHOLIC DIOCESE OF PEORIA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 C 1184—Michael M. Mihm, Judge.

____________

ARGUED DECEMBER 5, 2005—DECIDED APRIL 4, 2006

____________

Before POSNER, KANNE, and SYKES, Circuit Judges.

POSNER, Circuit Judge. This age-discrimination suit by

the former music director and organist of a Catholic diocese,

dismissed on a motion to dismiss, requires us to consider

the scope of the rule that federal courts may not exercise

jurisdiction over the internal affairs of religious associations.

Richard Tomic was employed as the music director and

organist both of a Roman Catholic church in Peoria (St.

Mary’s Cathedral) and of the Peoria diocese itself. The job

description for the diocesan position required him “to assist

the Office of Divine Worship in preparing and celebrating
2 No. 04-4219

various diocesan liturgies” and “in planning and celebrating

liturgical events as requested.” The description of his church

job required him to play the organ for masses and other

events, including weddings and funerals, and, in his

capacity as music director, to “prepare music for all Parish

masses and liturgies . . . in consultation with the Rector/Pastor where necessary,” as well as to recruit, train,

direct, and rehearse the members of the chorus.

A dispute with the bishop’s assistant concerning the

scheduling of Easter music culminated in Tomic’s dismissal

from both positions; he was 50 years old and was replaced

by a much younger person. The diocesan employment

handbook describes the diocese as “an Equal Opportunity

Employer” that does not discriminate on account of race,

sex, etc.—including age—with certain exceptions (such as

that employees “shall conform to the moral standards of the

Catholic faith”) that are not claimed to be applicable to

Tomic. In dismissing the suit, the district judge did not

explore the dispute between Tomic and the bishop’s

assistant or decide whether age had played any role in

Tomic’s dismissal.

Federal courts are secular agencies. They therefore do

not exercise jurisdiction over the internal affairs of religious

organizations. E.g., Jones v. Wolf, 443 U.S. 595, 602 (1979);

Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696,

709-10, 713-15 (1976); Presbyterian Church in the United

States v. Mary Elizabeth Blue Hull Memorial Presbyterian

Church, 393 U.S. 440, 449-50 (1969); Commack Self-Service

Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 427-28 (2d Cir.

2002); Dixon v. Edwards, 290 F.3d 699, 714-15 (4th Cir. 2002);

Note, “Judicial Intervention in Disputes over the Use of

Church Property,” 75 Harv. L. Rev. 1142 (1962). When Article

III of the Constitution created the federal judicial power,
No. 04-4219 3

England had, as part of its established church, ecclesiastical

courts (with curious names, such as the “Court of Arches”

and the “Court of Peculiars”). 3 William Blackstone, Commentaries on the Laws of England, ch. 5 (1768). Since the

United States was not to have a national church, the federal

judicial power was not envisaged as extending to the

resolution of ecclesiastical controversies. In contrasting our

situation with that of England, the Supreme Court remarked:

In this country the full and free right to entertain any

religious belief, to practice any religious principle,

and to teach any religious doctrine which does not

violate the laws of morality and property, and which

does not infringe personal rights, is conceded to all. The

law knows no heresy, and is committed to the support

of no dogma, the establishment of no sect. 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. It is of the essence of these religious

unions, and of their right to establish tribunals for the

decision of questions arising among themselves, that

those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the

organism itself provides for.
4 No. 04-4219

Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871); see also

Note, supra, at 1155-56.

A suit to remove a priest on the ground that he is a

heretic, or to reinstate a parishioner who has been excommunicated, thus has never been justiciable in the federal courts. E.g., Serbian Eastern Orthodox Diocese v.

Milivojevich, supra, 426 U.S. at 698; Bouldin v. Alexander, 82

U.S. (15 Wall.) 131, 139-40 (1872); cf. Montano v. Hedgepeth,

120 F.3d 844, 850-51 (8th Cir. 1997). Even if the suit does not

involve an issue of religious doctrine, but concerns merely

the governance structure of the church, the courts will not

assume jurisdiction if doing so would interfere with the

church’s management. Kedroff v. St. Nicholas Cathedral, 344

U.S. 94, 116 (1952); Young v. Northern Illinois Conference of

United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994);

Combs v. Central Texas Annual Conference of United Methodist

Church, 173 F.3d 343, 350 (5th Cir. 1999); EEOC v. Catholic

University of America, 83 F.3d 455, 462-63 (D.C. Cir. 1996).

These cases “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.’ ”

Id. at 462, citing Kedroff; see also Gellington v. Christian

Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th

Cir. 2000). Also pertinent is NLRB v. Catholic Bishop of

Chicago, 440 U.S. 490 (1979). The issue in that case was

whether the National Labor Relations Act applied to lay

teachers in Catholic schools. The Court held not, because

“the resolution of [unfair labor] charges by the [National

Labor Relations Board], in many instances, will necessarily

involve inquiry into the good faith of the position asserted

by the clergy-administrators and its relationship to the

school’s religious mission. It is not only the conclusions that

may be reached by the Board which may impinge on rights

guaranteed by the Religion Clauses, but also the very
No. 04-4219 5

process of inquiry leading to findings and conclusions.” Id.

at 502.

Thus “the First Amendment concerns [with assuming

jurisdiction in ecclesiastical cases] are two-fold. The first

concern is that secular authorities would be involved in

evaluating or interpreting religious doctrine. The second

quite independent concern is that in investigating employment discrimination claims by ministers against

their church, secular authorities would necessarily intrude into church governance in a manner that would

be inherently coercive, even if the alleged discrimination

were purely nondoctrinal.” Combs v. Central Texas Annual

Conference of United Methodist Church, supra, 173 F.3d at 350

(citations omitted). This second aspect of the internal-affairs

doctrine is called the “ministerial exception” to the exercise

of federal jurisdiction. E.g., Alicea-Hernandez v. Catholic

Bishop of Chicago, 320 F.3d 698, 702-03 (7th Cir. 2003).

Both aspects govern decision even when—in fact most

commonly when—the complaint is not based on and does

not refer to religious doctrine or church management (as

in most Title VII and other employment-discrimination

suits) but it is apparent that a controversy over either may

erupt in the course of adjudication. E.g., id.; EEOC v. Roman

Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000).

The ministerial exception, and the hands-off approach

more generally, do not place the internal affairs of religious

organizations wholly beyond secular jurisdiction. If a local

congregation of a hierarchical sect seized the local church,

changed the locks, and declared itself an independent

religious organization, a court would, upon suit by the

hierarchy, enjoin the seizure. Jones v. Wolf, supra, 443

U.S. at 602-03; Watson v. Jones, supra, 80 U.S. (13 Wall.) at

726-29; Maryland & Virginia Eldership of Churches of God
6 No. 04-4219

v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 367-68

(1970) (per curiam); Church of God in Christ, Inc. v. Graham,

54 F.3d 522, 525-26 (8th Cir. 1995); cf. Presbyterian Church in

the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. at 449-50. Or if to avoid having

to pay the minimum wage to its janitor a church designated

all its employees “ministers,” the court would treat the

designation as a subterfuge, see Dole v. Shenandoah Baptist

Church, 899 F.2d 1389, 1396-97 (4th Cir. 1990); cf. EEOC v.

Roman Catholic Diocese of Raleigh, supra, 213 F.3d at 801;

Bollard v. California Province of the Society of Jesus, 196 F.3d

940, 947 (9th Cir. 1999), just as the Internal Revenue Service

denies tax exemptions to religious associations that are not

bona fide. Living Faith, Inc. v. Commissioner, 950 F.2d 365,

372-73 (7th Cir. 1991); United States v. Jeffries, 854 F.2d 254,

257 (7th Cir. 1988); Spiritual Outreach Society v. Commissioner,

927 F.2d 335, 339 (8th Cir. 1991).

These examples show that federal courts cannot always

avoid taking a stand on a religious question. In the seizure case, there might be a dispute over whether, under

the internal law of the sect in question, local church property was owned by the congregation or by the sect. The

court would have to answer the question in order to determine whether to issue the injunction; and though

the tendency of the courts is simply to accept whatever

answer the highest church authority gives to the question of

ownership, at a minimum the court must determine what is

that highest authority. In the janitor’s case, the court would

have to determine whether under the actual law of the

church in question (and not as a subterfuge) janitors really

were ministers. The internal-affairs exception is limited in

other ways as well. A church could not subject its clergy to

corporal punishment or require them to commit criminal
No. 04-4219 7

acts. E.g., Employment Division v. Smith, 494 U.S. 872 (1990);

United States v. Indianapolis Baptist Temple, 224 F.3d 627,

629 (7th Cir. 2000). But it would not be constrained in its

dealings with them by employment laws that would

interfere with the church’s internal management, including

antidiscrimination laws. E.g., Alicea-Hernandez v. Catholic

Bishop of Chicago, supra, 320 F.3d at 702-04 (Title VII); EEOC

v. Roman Catholic Diocese of Raleigh, supra, 213 F.3d at 800-

01 (ditto); Minker v. Baltimore Annual Conference of United

Methodist Church, 894 F.2d 1354, 1356-57 (D.C. Cir. 1990)

(ADEA).

It might seem that unless a church had a doctrine placing limitations of age, race, ethnic origin, disability, or

sex on ministers, the application of laws forbidding employment discrimination would not involve the court in

theological controversy. But this is not correct, because

the church would be likely to defend its employment action on grounds related to church needs rooted in church

doctrine. See Scharon v. St. Luke’s Episcopal Presbyterian

Hospitals, 929 F.2d 360, 363 (8th Cir. 1991). The reference

in the complaint in this case to the dispute between

Tomic and the bishop’s assistant suggests that if the suit

were permitted to go forward, the diocese would argue that

he was dismissed for a religious reason—his opinion

concerning the suitability of particular music for Easter

services—and the argument could propel the court into

a controversy, quintessentially religious, over what

is suitable music for Easter services. Tomic would

argue that the church’s criticism of his musical choices was a

pretext for firing him, that the real reason was his age. The

church would rebut with evidence of what the liturgically

proper music is for an Easter Mass and Tomic might in turn

dispute the church’s claim. The court would be asked to
8 No. 04-4219

resolve a theological dispute. DeMarco v. Holy Cross High

School, 4 F.3d 166, 171 (2d Cir. 1993).

This assumes, however, that as organist and music

director, Tomic, unlike the janitor of St. Mary’s Cathedral,

really did have religious duties. See id. at 171-72. So far as

his role as organist is concerned, his lawyer says that

all Tomic did was play music. But there is no one way

to play music. If Tomic played the organ with a rock and

roll beat, or played excerpts from Jesus Christ Superstar, at an

Easter Mass he would be altering the religious experience of

the parishioners. Among his duties as music director was

that of selecting the music to be played at the various

masses. That duty required him to make a discretionary

religious judgment because the Catholic Church does not

have rules specifying what piece of music is to be played at

each type of mass. Raymond F. Glover, “Liturgical Music:

Its Forms and Functions,” in Liturgy and Music: Lifetime

Learning 231, 247-48 (Robin A. Leaver & Joyce Ann

Zimmerman, eds. 1998).

At argument Tomic’s lawyer astonished us by arguing that music has in itself no religious significance—its

only religious significance is in its words. The implication is

that it is a matter of indifference to the Church and its flock

whether the words of the Gospel are set to Handel’s Messiah

or to “Three Blind Mice.” That obviously is false. The

religious music played at a wedding is not necessarily

suitable for a funeral; and religious music written for

Christmas is not necessarily suitable for Easter. Even Mozart

had to struggle over what was suitable church music with

his first patron, Archbishop Colloredo, whom the Mozart

family called the “arch-booby.” “[M]usic is a vital means of

expressing and celebrating those beliefs which a religious

community holds most sacred. Music is an integral part of
No. 04-4219 9

many different religious traditions,” including the Catholic

tradition. EEOC v. Roman Catholic Diocese of Raleigh, supra,

213 F.3d 795, 802-03; see also Starkman v. Evans, 198 F.3d

173, 176-77 (5th Cir. 1999). Like the plaintiff in the Starkman

case, Tomic “performed tasks that were ‘traditionally

ecclesiastical or religious.’ ” Id. at 177.

The rector or bishop could override Tomic’s choices

of what music to play. But it is easy to see how disagreement with his choices could convince the ecclesiastical

authorities that they would be better off with someone

else in the job. If as in this case the music director is at

least 40 years old and therefore within the class protected by

the Age Discrimination in Employment Act, the ability of

the church and the diocese to remove him will be inhibited

unless the ministerial exception is applicable. Since, as we

have just seen, Tomic’s duties, unlike those, say, of the

person who tunes the organ in St. Mary’s Cathedral, had a

significant religious dimension, Tomic forfeited his rights

under the Act.

DeMarco v. Holy Cross High School, supra, is a case just

across the line from this one. The plaintiff in an age-discrimination suit, DeMarco was a math teacher at a Catholic

school. He had minor religious duties—leading the students

in prayers and taking them to Mass—but the court thought

it unlikely that a trial of his age-discrimination claim would

entail an examination of religious doctrine. The key passage

in the court’s opinion is the following: “the references to

Holy Cross’s religious mission are linked to two very

specific allegations: that DeMarco failed to attend Mass and

to lead his students in prayers. Given that the religious

duties that DeMarco allegedly failed to carry out are easily

isolated and defined, we are confident that the able district

judge will be able to focus the trial upon whether DeMarco
10 No. 04-4219

was fired because of his age or because of failure to perform

religious duties, and that this can be done without putting

into issue the validity or truthfulness of Catholic religious

teaching.” 4 F.3d at 172. DeMarco either did or did not lead

his students in prayer and attend mass. These were simple

questions of fact, no different from whether he correctly

added 2 plus 2, and could be answered without reference to

church doctrine. That is not true with respect to the wisdom

or propriety of Tomic’s choice of music to play at an Easter

Mass.

The court in DeMarco distinguished the Supreme

Court’s decision in Catholic Bishop on the ground that

the National Labor Relations Act imposes more comprehensive duties on employers than the age-discrimination law.

4 F.3d at 169. Fair enough; but DeMarco also distinguished

cases in which the employee is a member of the clergy, id. at

171-72; and the music director of a Catholic church and

diocese is more like a clergyman than a math teacher. Also

distinguishable is Tony & Susan Alamo Foundation v. Secretary

of Labor, 471 U.S. 290, 303-06 (1985), a replay of Catholic

Bishop except that in Alamo the employees were not

parochial-school teachers but instead the employees of

commercial enterprises owned by the church. The Court

could not see how even the regulation of the enterprises’

labor practices by the Fair Labor Standards Act could inject

a reviewing court into a religious dispute.

But we must consider whether it makes a difference

that the diocese represents itself to be an “equal opportunity” employer, specifically with respect to age. Tomic

argues that this representation in the employee handbook,

though it disclaims creating a contractual obligation, should

estop the diocese to deny that it is subject to the age-discrimination law. Now it is very unlikely that
No. 04-4219 11

the representation should be interpreted to embrace religious functionaries, such as the music director. Among the

forms of discrimination that the handbook forbids is

discrimination on grounds of sex, though women of

course cannot be Catholic priests. But in any event the

ministerial exception, like the rest of the internal-affairs

doctrine, is not subject to waiver or estoppel. Minker v.

Baltimore Annual Conference of United Methodist Church, supra,

894 F.2d at 1356-57. A federal court will not allow itself to

get dragged into a religious controversy even if a religious

organization wants it dragged in. There is an analogy to the

refusal of the courts to honor certain choice of law provisions in contracts. Generally, such a provision is honored. If

a contract between citizens of Illinois specifies that the law

of New York shall govern any dispute arising from the

contract, a court in Illinois will apply that law. But as we

said in Lloyd v. Loeffler, 694 F.2d 489, 495 (7th Cir. 1982), if

the parties stipulated that their dispute would be governed

by the Code of Hammurabi the court would refuse to honor

the stipulation. Judges have an interest independent of party

preference for not being asked to decide an issue that they

cannot resolve intelligently. Americans would, moreover, be

deeply offended at the thought of their secular courts taking

on the additional role of religious courts, as if the United

States were a theocracy.

After the oral argument in this case, the Second Circuit

held (over dissent) that the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (which in the wake of

City of Boerne v. Flores, 521 U.S. 507 (1997), is limited to

federal action, O’Bryan v. Bureau of Prisons, 349 F.3d 399,

401 (7th Cir. 2003)) amended the ADEA to wipe out the

ministerial exception and substitute RFRA’s standard,

which requires deciding whether a particular law imposes

a substantial burden on religious activity. Hankins v. Lyght,
12 No. 04-4219

438 F.3d 163, 169 (2d Cir. 2006). The decision would if sound

invalidate the many decisions in this and other circuits

recognizing the ministerial exception to federal employment

discrimination law. The decision is unsound. RFRA is

applicable only to suits to which the government is a party.

See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v.

Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th

Cir. 2000); Sutton v. Providence St. Joseph Medical Center, 192

F.3d 826, 834-35 (9th Cir. 1999). “A person whose religious

exercise has been burdened in violation of this section may

assert that violation as a claim or defense in a judicial

proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).

It is hardly to be imagined, moreover, that in seeking

to broaden the protection of religious rights, Congress,

dropping nary a hint, wiped out a long-established doctrine

that gives greater protection to religious autonomy than

RFRA does. Indeed a serious constitutional issue would be

presented if Congress by stripping away the ministerial

exception required federal courts to decide religious

questions. The exception is based on the establishment and

free-exercise clauses of the First Amendment, see, e.g.,

Combs v. Central Texas Annual Conference of United Methodist

Church, supra, 173 F.3d at 350; Rayburn v. General Conference

of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985),

which place tight limits on governmental authority to

regulate religion. In the Catholic Bishop case, the majority

adopted a strained interpretation of the National Labor

Relations Act in order to avoid confronting this constitutional issue. The dissent thought the strain too great, but did

not deny the existence of such an issue, or intimate a view

on how it should be resolved. 440 U.S. at 517-18.
No. 04-4219 13

It is no surprise that the appellant in Hankins did not even

argue RFRA; nor does Tomic.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-4-06