### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-51151

PHILIP CANNATA Plaintiff-Appellant
v. CATHOLIC DIOCESE OF AUSTIN; ST. JOHN NEUMANN CATHOLIC CHURCH Defendants-Appellees

Appeal from the United States District Court for the Western District of Texas

Before DAVIS, DENNIS, and HAYNES, Circuit Judges. DENNIS, Circuit Judge: Philip E. Cannata brought suit against the Catholic Diocese of Austin and St. John Neumann Catholic Church (“Appellees” or “the church”), alleging that the church terminated h i m in violation of the Age Discrimination in Employment Act (“ADEA”) and the Americans w ith Disabilities Act (“ADA”). The district court dismissed the suit based on the ministerial exception, which bars employment-discrimination suits by ministers against their churches. See Hosanna-Tabor Evangelical L utheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702-09 (2012) (affirming the existence of the ministerial exception). U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 24 , 20 12 Lyle W . Cayce Clerk Case: 11-51151 Document: 00512031721 Page: 1 Date Filed: 10/24/2012No. 11-51151

This appeal presents the first o p p o r t u n ity for this court to address the

mini s t e ri al exception in light of Hosanna-Tabor

. Because we conclude that there is no genuine issue of material fact that the ministerial exception applies, and therefore bars Cannata’s suit, we AFFIRM the judgment of the district court. BACKGROUND A. In 1998, C a n n a t a became the Music Director at St. John Neumann Catholic Church. I n this position, Cannata oversaw the Music Department’s budget and expenditures, managed the sound systems at the church and maintained the sound equipment, music room, and music area in the sanctuary, and rehearsed with members of the choir and cantors and accompanied them on the piano during services while running the soundboard. Cannata only worked during the evening and on weekends, so the church hired his wife to perform the day-to-day responsibilities of the music program, Leonard Johnson as Choir Director, and Ca n nata’s daughter to work with the children’s choir. Furthermore, a l l of the liturgical responsibilities belonging to Cannata’s predecessor were given to Judy Gesch, St. John Neumann’s Business Manager, b e c ause Cannata lacked the requisite education, training, and experience. I n August 2007, the parish pastor, Father Kirby Garner, fired Cannata. 1 B. Cannata, proceeding pro se, brought suit against Appellees, alleging that his termination was in violation of the ADEA and the ADA. Appe l l e e s t w ice

Cannata mak e s a num ber of fac tual allegat ions regar ding the cir cum st ance s of his 1 ter mi na t i o n , os tens ibly in sup por t of his em plo ymen t- dis cri mi natio n clai ms . Ho we ver, this app eal pr es ents the ques tio n of wh ethe r the mi nis ter ial excep tio n bars Cannata ’s sui t. Becaus e the dis tri ct cour t dis mi ss ed his sui t on pr oce dur al ground s, it wo uld be inap pr opr iate t o evaluat e the me rit s of Cannata ’s clai ms . Mo reo ver, beca use we conc lude that ther e is no genuine iss ue of mat eria l fac t that the mi nis ter ial excep tio n app lies , we are pr eclu ded fr om sc rut inizing the chur ch’s mo tives for ter mi natin g Cannata

. See Ho sa nna- Tab or , 132 S. Ct. at 709. 2 Case: 11-51151 Document: 00512031721 Page: 2 Date Filed: 10/24/2012No. 11-51151

moved to dismiss on the basis that the ministerial exception barred Cannata’s suit. Their first m o t i o n was denied by the district court because it concluded that not enou gh e vidence had been developed to determine whether the ministerial exception applied. After further discovery, Appellees refiled their motion to dismiss and also moved for summary judgment. The district court granted Appellees’ second motion to dismiss for lack o f s ubject matter jurisdiction. Cannata timely appealed. STANDARD OF REVIEW Th e district court granted Appellees’ motion to dismiss under F e d e r al Rul e of Civil Procedure 12(b)(1), which was considered appropriate under the law at the time. See McClure v. Salvation Army , 460 F.2d 553, 556 (5th Cir. 1 9 7 2). However, in Hosanna-Tabor , the Supreme Court ruled th at “the [ministerial] exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” 132 S. Ct. at 709 n.4. Thus, although unclear at the 2 time, the district court should have analyzed Appellees’ motion to dismiss under Rule 12(b)(6). Nonetheless, our review requires us to scrutinize the same materials we would have considered were the case properly before us on a 12(b)(1) motion. This case has been amply briefed and was disposed of after extensive discovery. Because the m i n i s t e r ial exception is not a jurisdictional bar and “because the court considered material outside th e p l eadings in deciding the motion, ‘it should have converted the

. . . motion for dismissal into a Rule 56 motion for summary

Prior to Ho sa nna- Tab or , the Firs t, Third , Tenth, and Nint h Circ uits had tre ated the 2 mi nis ter ial excep tio n as an aff irm ative def

ens e unde r Fede ral Rule of Civil Proc edur e 12(b )( 6), the Sixth and Sevent h Circ uits h a d t reat ed it as a juris dic tio nal def ect unde r Rule 12(b )( 1), and this cir cuit as we ll as the Elevent h Circ uit had tre ated it as per mi tti ng cour ts to cons tru e anti- dis cri mi natio n l a ws so as not to app ly to clai ms betw een mi nis ter s and thei r chur ches

. See EEOC v. Ho sa nna- Tab or Eva ngel ic al Luthera n Churc h & Sch. , 597 F.3d 769, 775 (6t h Cir. 2010) , rev ’d132 S

. Ct. 694( 2012) (coll ect ing c ase s)

. 3 Case: 11-51151 Document: 00512031721 Page: 3 Date Filed: 10/24/2012No. 11-51151

judgment.’” See Triplett v. Heckler , 767 F.2d 210, 212 (5th Cir. 1985) (applying

3 summary-judgment standard in reviewing th e di s trict court’s dismissal in which the lower cour t e r r oneously considered a limitations defense to be a jurisdic t i o n a l bar). Therefore, “we must scrutinize the record to determine whether it raises a ge n u ine issue of material fact regarding the [affirmative defense.]” Id. “We review a district court’s grant of summary judgment de novo .” Estate of Bradley ex rel. Sample v. Royal Surplus Lines Ins. Co. , 647 F.3d 524, 528 (5th Cir. 2011). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F E D

. R. C IV

. P. 56(a). Initially, the moving party bears the burden of demonstrating the ab s e n c e of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (198 6)

. I t i s th e n up to the nonmoving party, going beyond the pleadings, to point to “specific facts showing that there is a g e n u i n e i ssue for trial.” Id. at 324 (internal quotation marks omitted). We examine the evidence in the light most favorable to the nonmoving party, Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir. 2010), and draw any reasonable inferences in favor of that party, Gowesky v. Singing River Hosp. Sys. , 321 F.3d 503, 507 (5th Cir. 200 3). DISCUSSION A. 1. The First Amendment provides that “Congress s h a l l make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. C O N S T

. amend I. The Supreme Court has recognized the right of religious

Given the natur e of the mi n i s t e rial excep tio n, we sus pec t that only in the rar es t of 3 cir cum st ance s wo uld dis mi ss al unde r Rule 12 (b ) ( 6 )

—i n othe r wo rd s, bas ed so lely on the ple adin gs—be wa rra nted

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organizations to control their internal affairs. See Watson v. Jones , 80 U.S. 679, 727 (1872). This right includes the freedom “to decide for themselves, free from

s t a t e interference, matters of church government as well as those of faith a n d doctrine,” Kedroff v. St. Nicholas Ca t h e dral , 344 U.S. 94, 116 (1952), and the right of religious organizations to select their own leaders, Serbian E. Orthodox Diocese v. Milivojevich , 426 U.S. 696, 724-25 (1976). Pursuant to this case law, the courts of appe a l s “u n iformly recognized the existence of a ‘ministerial exception,’ grounded i n t h e First Amendment, that precludes application of [employment discrimination] le gislation to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor , 132 S. Ct. at 7 0 5 & n . 2 (collecting cases). In Hosanna-Tabor , a unanimous Supreme Court, addressing the issue for the first time, “agree[d] t h a t there is such a ministerial exception.” Id. at 706. 2. The Court held t h a t the “Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” Id. at 702. The Courts that: Requiring a c h urch to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, deprivin g t h e c hurch of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which p r o t e cts a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determi n e which individuals will minister to the faithful also violates the Establishment Clause, which prohibit s g overnment involvement in such ecclesiastical decisions. Id. at 706. Having c o n f

i rmed the existence of the ministerial exception, the Court determined that, under the circumstances of the case, it barred an employment5 Case: 11-51151 Document: 00512031721 Page: 5 Date Filed: 10/24/2012No. 11-51151

discrimination suit by a “called” teacher, Cheryl Perich, against the church that had terminated her. Id. at 707. Although the Court agreed that the exception “is not limited to the head of a religious congregation,” it eschewed a “rigi d formula” in determining when an employee is a minister within the meaning of the ministerial exception. Id. In applying the ministerial exception to Perich’s suit, the Court first noted that the church had held out Perich as a minister, giving her a distinct role from that of most church m e m b ers and issuing her a “diploma of vocation” that accorded her the title of “Minister of Religion, Commissioned.” Id. Second, the Court observed that “Perich’s title as minister reflected a significant degr e e of religious training followed b y a formal process of commissioning.” Id. Perich took six years to fu l f

i l l t he training requirements and was elected by a vote of the congregation. Id. Third, the Court reasoned that Perich held herself out as

a minister. Id. She accept e d t h e formal call to religious service, claimed a special housing allowance ava i l able only to those “in the exercise of the ministry,” and, following h e r t ermination, wrote in a letter that she regarded herself a s a minister. Id. at 707-08. Finally, the Court underscored that “Perich’s job duties reflected a role in conveying t h e C h u r c h’s message and carrying out its mission.” Id. at 708. P e r i c h taught her students religion four times per week and led them in prayer three times per day, took students to the school chapel service once per week, led the service twice per year, and led her fourth graders in brief devotional exercises every morning. Id. Thus, “[i]n light of these considerations—the formal title given Peric h by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—[the Court] conclude[d] that Perich was a minister covered by the ministerial exception.” Id. The Court faulted the Sixth Circuit f or committing three errors in concluding that the ministerial exception did not bar Perich’s suit. Id. First, the

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Court criticized the lower court for failing to see any relevance in Perich’s status

as a commissioned minister. Id. “Although such a title, b y i t s e l f, does not automatically ensure coverage,” the Court wrote, “that an employ e e has been ordained or commissioned as a minist e r i s surely relevant, as is the fact that

s i gnificant religious training and a recognized religious mission underli e th e description of the employee’s position.” Id. Second, the Court explained that the lower court had placed too much weight on the fact that lay teachers perform the

same duties as called teachers. Id. “[T]hough relevant, it cannot be dispositive that others not formally recognized as ministers by the church perform the same functions—particularly when, as here, they did so only because commissio n ed ministers were unavailable.” Id. Third, the Court criticized the lower court for unduly emphasizing the secular duties Perich performed. Id. Although Perich only performed religious activities for roughly 45 minutes of each day, the Court rejected a rule wherein only those with exclusively religious functions fall under the ministerial exception. I d

. at 7 08-09. “The heads of congregations themselves often have a mix of duties,” the Court pointed out, “including secular ones such

as helping to manage the congregation’s finances, supervising purely secular
personn el, and overseeing the upkeep of facilities.” Id. at 709. Thus, “the relative amount of time [an employee] spen[ds] performing religious functions”
may not be “largely determinative” because t h e ministerial exception’s applicati o n “is not one that can be resolved by a stopwatch.” Id. Thus, “[t]he

a m o unt of time an employee spends on particular activities is relevant in assessing that employee’s status, but that facto r cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed.” Id. “Because Perich was a minister within the meaning of the exception,” the Court ruled that “the First Amendment requires dismissal of [her] employment discrimination suit against her religious employer.” Id. Neither an order of

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reinstatement, which would “require[] the Church to accept a minister it did not want,” nor damages, which “w o u l d o p e r ate as a penalty on the Church for terminating an unwanted minister,” could be tolerated und e r th e First Amendment. Id. The Court also rejected the argument that the church’s asserted reason for terminating Perich—that she violated the church’s commitment to resolving disputes internally—was mere pretext. Id. According to the Court, the decision to select and control ministers b e l o n g s t o the church alone. Id. Thus, it is immaterial if the reason for termination is not religious, but rather pretextual. I d. ; see also id. at 715 (Alito, J., concurring) (“[W]hatever the truth o f [th e pretext inquiry], the mere adjudication of such questions would pose grave problems for religious auton o m y : It would require calling witnesses to testify about the importance a n d priority of the religious doctrine in question, with a civil factfinder sitting in ultimate judgment of what t h e accused church really believes, and how important that belief is to the church’s overall mission.”). 3. The Supreme Court s p e c i f i cally declined to adopt a “rigid formula” for determining when an employee is a minister within the meaning of the

mini s t e ri al exc e p tio n , concluding instead “that the exceptio n c over s P e rich , give n all the circumstances of her employment.” Id

. a t 7 0 7 (majority opinion). However, Justices Thoma s and Alito each concurred separately to attempt to elucidate the application of the ministerial exception. See id. at 710-11 (Thomas, J., concurring); 711-16 (Alito, J., concurring). In Justice Thomas’s view, the ministerial exception requires deference “to

a religious organization’s good-faith understanding of who qualifies as its minister.” Id. at 710 (Thomas, J., concurring). According to Justice Thomas: The question whether an employee is a minister is itself religious in nature, and the answer will vary widel y . Judicial attempts to

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fashion a civil definition of “minister” thr ough a bright-line test or multi-factor analysis risk d isadvantaging those religious groups whose beliefs, practices, and membership are outside of t h e ‘mainstream’ or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a cor r e s p o n ding fear of liability, may cause a religious group to conform its beliefs and practices regarding ‘ministers’ to the prevailing secular understanding. Id. a t 7 1 0

- 1 1

. Thus, for Justice Thomas, the critical question is whether the religious group sincerely considered the plaintiff a minister. Id. at 711. Just i c e Al i to, joined by Justice Kagan, wrote separately to highlight to what extent “formal ordination and designation as a ‘minister’ [should factor into] determining whether an ‘employee’ of a religious group falls within the

. .

. ‘ministerial’ exception.” Id. at 711 (Alito, J., concurring) (footnote o mitted). Because of the religious diversity in the United States, Justice Alito argued that “it would be a mistake if the term ‘minister’ or the concept of ordi n a t ion were viewed as central to the important issue of religious autonomy that is presented in” minis t e r i al exception cases. Id. Instead, Justice Alito reasoned, “courts 4 should focus on the function performed by p e r s o n s who work for religious bodies.” Id. He stated that:

The First Am e n d m e nt p rot e ct s th e f r e edom of religious groups to engage in certain k e y r eligious activities, including the conducting of worship services and other religious ceremonies and
r i t u a ls, as well as the critical process of communicating the faith

. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions. The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organiza t ion, conducts worship services or important religious ceremonies or rituals, or serves as a m e s s e n g er or teacher of its faith. If a religious group believes t h a t t h e ability of such an emplo y ee to perform these key functions has been compromised,

Jus tic e Alito reas oned that altho ugh the tit le “m inis ter” is rele vant to the analys is, 4 “s uch a t itleis ne ithe r nece ss ary nor suf fic ient .” Id. at713

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then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position. Id. at 711-12. The ministerial exception, Justice Alito wrote, requires reli gi o u s organizations be free “to determine w h o is qualified to serve in positions of substantial religious importance.” Id. at 712. Although this will vary from religion to religion, he r e a s o n e d that “it is nonetheless possible to identify a general category of ‘employees’ who se functions are essential to the independence of practically all religious groups”: those in leadership positions, those who perform important functions during worship s e rvices, religious ceremonies, and rituals, and those responsible for teaching or conveying religious tenets to the next generation. Id. Accordingly, because Perich “played

an important role as an instrument of her church’s religious message and as a leader of its worship activities,” the ministerial exception left it to the church to decide whether Perich should remain in her position. Id. at 715. B. Prior to Hosanna-Tabor , we had articulated a three-factor test for determining when an employee qualifies as a minister within the meaning of the ministerial exception: First, this court must co n sider whether employment decisions regard i n g t h e position at issue are made largely on religious criteria[.]

. . . Second, to consti t ute a minister for purposes of the “ministerial exception,” the court must consider whe t h e r the plaintiff was qualified and authorized to perform the ceremonies of the Church.

. . . Third, and probably m o s t important, is whether [the employee] engaged in activities tradi t i onally considered ecclesiastical or religious, including whether the plaintiff attends to the religious needs of the faithful. Starkman v. Evans , 198 F.3d 173, 176 (5th Cir. 1999) (internal quotation marks and citations omitted).

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This appeal presents the first occasion for this circuit to determine when

a n e m p l o y ee is a minister within the meaning of the ministerial exception i n l i gh t of Hosanna-Tabor

. Recognizing this, the court asked Professor Leslie C

. Griffin, a professor of constitut i o n al law at the University of Houston Law Center who specializes in the First Amendment’s R e ligion Clauses, to address the continued validity of the Starkman test. Several religious organizations also submitte d a n a m icus brief addressing this issue, and both Cannata and the church responded. R e viewing the arguments advanced by the parties and their amici , w e conclude that the Supreme Court’s decision in Hosanna-Ta b o r at most invalidates and at least modifies Starkma n ’ s t hree-part test. As Professor Griffin correctly observes, the Hosanna-Tabor Court engaged in a fact-intensive inquiry and explicitly rejected the adoption of a “rigi d f ormula” or bright-line t e s t

. See 132 S. Ct. at 707. In light of this, Starkman ’s three-part test ca n n o t survive in its p r e c i s e form. First, given the totality-of-the-circumstances analysis in which the Hosanna-Tabor Court engaged, limiting the inquiry in ministerial exception cases to a three-part test is invalid. As Professor Griffin correctly notes, some of the facts the Hosanna-Tabor Court underscored may not be able to b e considered under Starkman ’s three prongs, which would not be permissible. Second, because the Supreme Court eschewed a “rigid formula” in favor of an all-things-considered approach, courts may not emphasize any one fa c t o r a t t he expense of other factors. Thus, Starkman ’s “most important” factor—whether the plaintiff “engaged in activitie s t raditionally considered ecclesiastical or religious,” 1 9 8 F

. 3d at 176—may no longer serve as the gravamen of a ministerial exception case. However, this is not to place too great

an emphasis on Hosanna-Tabor

. Any attempt to calcify the p a rticular considerations that motivated the Court in Hosanna-Tab o r into a “ri gi d f o rmula” would not be appropriate. See Hosanna-Tabor , 132 S. Ct. at 707.

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We are mindful of the benefit that clear standards provide to lower courts and religious employers seeking to structure their actions in accordance with the law. Cf. id. at 711 (Thomas, J., concurring) (“[U]ncer t a i nty about whether its ministerial designation will be rejected, and a corresponding fear o f l iability, may cause a religious group t o c o n f o r m its beliefs and practices regarding ‘m i n i sters’ to the prevailing secular understanding.”). However, HosannaTabor’s rejection of a bright-l i n e t e s t likely reflects the diversity of religious practice in this country; given the pluralism of religious thought for which America is known and celebrated, it may not be possible to develop a one-sizefits-all approach to the minister i a l e x ception. See id. (Alito, J., concurring) (“Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term ‘minister’ or the concept of ordinatio n w e r e viewed as central to the important issue of religious autonomy t h a t i s p r e sented in cases like this one.”). Following the example of th e Hosanna-Tabor Court, it is eno u gh for us to conclude that, under the circumstances, Cannata falls within the ministerial exception. C. T h e c ru x of Cannata’s argument is that he merely played the piano a t Mass and that hi s o n l y responsibilities were keeping the books, running the sound system, and doing custodial work, none of which was religious in nature. However, the performance of secular duties, the Supreme Court has said, may not be overemphasized in the context of the ministerial exception. See HosannaTabor , 132 S. Ct. at 709. Appellees’ argument, mean w h i l e , centers on the important role music plays in the celebration of Mass. Appellees introduced evidence that all 5

For exam ple , the chur ch, poi nting to mat eria ls pr epa red by the Unit ed St ates 5 Confe renc e of Catholic Bish ops and intende d to aid in the prep arat ion and celebra tio n of the litu rgy as w e l l as the aff idavit s of Cheryl Maxw ell, Di rec tor of the Of fic e of Wor shi p of the 12 Case: 11-51151 Document: 00512031721 Page: 12 Date Filed: 10/24/2012No. 11-51151

musicians, regardless of whether they are professional or volunteer or work fullor part-time, “exercise a genuine liturgical ministry,” meaning that they “work[] in collaboration with the parish pastor in carrying out the Church’s mission by participating in the threefold ministry of Christ.” In pa r t i c u lar, Appellees produced evidence that the Mus i c Director provides a major service by overseeing the planni n g a nd coordination of the church’s music program, fostering the active participation of t h e “liturgical assembly” in singing, and promoting the variou s m usicians—choir members, psalmists, cantors, and organists—all of whom play instruments in service of the litur gy. Thus, the
person who leads the music during Mass is an integral part of Mass and “a lay liturgical minister actively participating in the sacrament of the Eucharist.” As previously noted, the Hosanna-Tabor Court eschewed a “rigid formula” and the application of a bright-line test in ministerial exception cases. See 132 S. Ct. at 707. App l i c a t i o n o f the exception, however, does not depend on a finding that Cannata satisfies the same considerations that motivated the Court to find that Perich was a minister within the meaning of the exception. Rather, it is enough to n o te that there is no genuine dispute that Cannata played an i n t egral role in the celebration of Mass and that by playing the piano duri n g services, Ca n nata furthered the mission of the church and helped convey its message to the congregants. See id. at 708; id. at 712 (Alito, J., concurring) (reasoning that “ [ e m ployees] who perform important functions in worship services and in the performance of religious ceremonies and rituals” fall within

Di oce se of Aust in, and Fathe r Wahl, an ord ained Cath o l i c p r i es t and expe rt on Canon law , st ates that : “The Churc h belie ves that mus ic in the litu rgy is sac red and has rit ual and sp irit ual dim ens ions

. Mus ic enhanc es t h e p r a yer that occ urs in the Cathol ic Mas s by enri ching its elem ents

. It als o d r a w s t h e c ongregat ion clos er to Chris t, and allow s the congr egatio n t o a ct toget her in celebrat ion by s inging pr ais es and hymns t o t he Lord , wh ich in tur n st rengt hens the fai th that is in them

. Mus ic is a par t of the cele brat ion and p rayer thatis oc cur ring at the Mas s and enhanc es t he litu rgy.” 13 Case: 11-51151 Document: 00512031721 Page: 13 Date Filed: 10/24/2012No. 11-51151

the ministerial exception). Accordingly, we conclude that Cannata falls within the ministerial exception and that the exception therefore bars his suit. 1. Cannata disputes the Magistrat e Judge’s determination, based on the affidavit of Father Richard Wahl that the Music Director is a worship leader in the church. Cannata disagrees, arguing that he had no training, education, or experience necessary to be considered a worship leader, h a d no direct interaction with the congregation, and was not at the church during the day. Moreover, Cannata argues that he never led the music at Mass, led the congregation in song, or sang himself. Instead, Cannata insists that he sat at the piano, facing away from the congregation and out of sight of the cantors. Appellees disagree and point to evidence in su p p o r t o f their arguments. Relying on Cannata’s own de p osition, Appellees introduced evidence that Cannata performed the music at Mass on Saturday nights and Sunday m o rnings and that he and his wife selected the hymns to be played at Mass each Sunday. By his own admission, Cannata did not coordinate h i s m u s ical selections with the priest. Appellees also pointed to evidence (from the complaint) that Cannata boasted of his role in building one of the best music programs in the diocese and training a “large number” of cantors. Furthermore, accor d i n g to his own deposition testimony, Cannata also led and accompanied the choir at practice, going over the music with them and teaching them every Tuesday. Because h e made unilateral, important decisions regarding the musical direction at Mass, the church considered him a minister. Even if this were not

enou gh , C a n n ata played the piano at Mass. As previously noted, undisputed evidence indicates that music is an integr a l p art of the celebration of Mass. Consequently, Cannata played an important role in furthering the service and therefore helped convey the church’s message and carry out its mission. 2.

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According to Cannata, he was not ordained and he did not conduct Mass, d e l iv e r a sermon, or write the music or lyrics for the ceremony. Rather, h e lacked the education, training, and experience to be considered a m i nister. Therefore, Cannata argues, the district court erred because it failed to find any relevance in his lack of religious training and his ostensibly purely-secular duties. Appellees counter by noting that Cannata’s responsibilities were specifically oriented toward helping the church carry out th e c el eb r ation of Mass. By C a n n a t a’s own admission, these duties included working on the music d e p art m e nt b u d ge t , m an a gin g th e s o u n d system, running the soundboar d durin g Mass, maintaining the music room, rehearsing with choir members and cantors, and p l a yi n g piano during services. Furthermore, Cannata and his wife “arranged for all the music” while he was on vacation, and he was asked for a list of hymns from the “liturgy planning guide” appropriate for weekend masses on his return. Consequently, Appellees looked to him for guidance in coordinating Mass. Appellees also corre c t ly note that Cannata’s lack of formal training in Catholic doctrine is immaterial; this is because the ministerial exception does not apply only to those who are ordained. See Hosana-Tabor , 132 S. Ct. at 711 (Alito , J

. , c o ncurrin g)

. Moreover, Appellees introduced evidence, prepared by the United States Conference of Catholic Bishops and intended to aid in the preparation and cel e b r a t ion of the liturgy, that “as a matter of both religious belief and canon law, the Church conside r s m u s i c i n the liturgy to be sacred, wi t h r i tual and spiritual dimensions; and a church musician to be a minister who shares faith, serves the community, and expresses the l o v e o f G od and neighbor t h r o u gh music.” For Appellees, the argument is simple: Mass is the center of the Catholic faith, and Cannata was at the center of Mass. According to Father Wahl, Cannata “drew the congregation closer to Christ, and allowed

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the congregation to act together in celebration by singing praises and hymns to the Lord, which in turn strengthens the faith that is in them.” The Hosanna-Tabor Court observed that “ [t]he heads of congregations themselves often have a mix of dutie s , i n c l uding secular ones, such as helping to manage the congregatio n’ s f in anc e s , s up e rvi s in g p ur ely s e cul ar personnel, and overseeing the upkeep of facilities.” 132 S. Ct. at 709

. Accordingly, that Cannata lacked the religious training p r e s e nt in H os an na-Tabor is insufficient to insulate him from the application of the ministerial exception, particularly in light of the important part his ostensibly secular duties—working on the music department budget, managing the sound system, running the soundboard duri n g Mass, maintaining the music room, rehearsing with choir members and cantors, and playing piano during services—played in furthering the mission and message of the church at Mass. 3. Finally, Cannata disputes—and attempts to discredit—the expert testimony of Father Wahl and the testimony of Cheryl Maxwell. In particular, Cannata argues that he could not have been a minister according to canon law,

a s F a t h e r Wahl testified, because he failed to satisfy the three requirements necessary to become a lay ecclesial minister. He makes the same argument with respect to Maxwell—who stated that the church considers the person who leads t h e music to be an integral part of the celebration of Mass and a lay liturgical minister—because the church, according to Cannata, previously hired an openly gay Music Director and Music Director s a t o t h e r churches within the Diocese who were not Catholic. We find Can n a t a ’ s attempts to impeach, and therefore discredit, the testimony given by Father Wahl and Maxwell unpersuasive. First, Cannata did not supply any expert testimony of his own (apart from his interpretations of a text that allegedly details the criteria for becoming a lay ecclesial minister) and,

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as he himsel f has acknowledged, he lacks expertise in canon law. Second, Cannata concedes that “the intent of th e m i n i s t erial exception is to allow religious organizations to

. . . a dh e re to their own religious interpretations.” Therefore, it is not for a court to say whom the Catholic Church may consider a lay ecclesia l m inister notwithstanding Cannata’s attempts to impeach the church’s own doctrine. Rather, the ministerial exception permits the church to pick its own ministers and do so using its ow n c r i t e r i a . Third, Cannata’s argument, in essence, is a challenge to Catholic Church doctrine and precisely the kind of challe n g e t he Supreme Court concluded that government is foreclosed from deciding by the Religion Clauses. See 132 S. Ct. at 710 (Thomas, J., concurring) (reasoning that because “[t]he question whether an employee is

a minister is itself religious in nature, and the answer will vary widely,” courts must “defer to a religious organization’s good-faith understanding of wh o qualifies as its minister”). The Hosanna-Tabor Court refused to scrutinize the church’s decision, in that case, to te r m i n a t e Perich because she failed to abide by her church’s teachings regarding internal disput e r e solution because that would impermissibly permit the state to second-guess church doctrine. See id. at 709 (majority opinion); id. at 7 1 5 (Al i to, J., concurring) (“[T]he mere adjudication of such questions would pose grave problem s for religious autonomy: It would require calling witness to testify about the importance and priority of the religious doctrine i n q u e s t i o n, with a civil factfinder sitting in ultimate judg m e n t of what the accused church really believes, and how important that belief is to the church’s overall mission.”). Likewise, we may not second-guess whom the Catholic Church may consider a lay liturgical minister under canon law. Accordingly, Cannata’s disputes with the testimony of Father Wahl and Maxwell are without merit. * * *

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As Appellees correctly observe, the church has the right to determine who will pa r t i c i p a te in its religious ceremonies. Even assuming Cannata was “merely” an accompanist, Appellees have established the importance of music to the celebration of Mass and Can nata’s role in the service. Because Cannata performed an important function during the service, there is no genuine dispute that he played a role in furthering the mission of the chur ch and conveying its

messa g e to its congregants. Accordingly, we conclude that Appellees have established that the ministerial exception applies and therefore bars Cannata’s suit from proceeding further. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court.

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