He who hires a piper may fire a piper

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					COURT REPORTER                                                                                                                    1. 800. 973.1177

He who hires a piper may fire a piper
[James Kilpatrick]
The opinions of some appellate judges are so much fun to read that court buffs regard them in a class with fine wines. There is vintage Scalia, of course,
from the Supreme Court, and vintage Wilkinson from the 4th Circuit. Today a toast is in order for Judge Richard Posner of the 7th Circuit. His opinion
two weeks ago in Tomic v. Catholic Diocese of Peoria ranks with the better pressing of judicial grapes. This was a sippin’ opinion.

The case was of no particular significance.          is unquestioned. All who unite themselves            from “Jesus Christ Superstar” at an Easter
Until a big blow-up led the parties into             to such a body do so with an implied consent         Mass, he would be altering the religious
court, Richard Tomic was organist and                to its government and are bound to submit            experience of the parishioners. Posner found
music director for the Catholic Diocese of           to it.” At least since the 870s, American           it “astonishing” that Tomic’s counsel could
Peoria, Ill. For reasons not explained in            courts have upheld “a fundamental right              argue that an organist’s choice of music
Posner’s opinion, the bishop fired him three         of churches to decide for themselves, free           could not affect his employment, as if the
years ago. Tomic was then 50 years old. He           from state interference, matters of church           words of the Gospel could be set with equal
sued for violation of his rights under the           government as well as those of faith and             congruity to Handel’s Messiah or to “Three
Age Discrimination in Employment Act. He             doctrine.”                                           Blind Mice.”
lost before Judge Michael L. Mihm (cq) in
U.S. District Court and lost again before a          To be sure, Posner explained, the state’s            “The religious music played at a wedding is
three-judge panel at the circuit level. Judges       hands-off approach to ecclesiastical matters         not necessarily suitable for a funeral, and
Michael S. Kanne and Diane S. Sykes joined           has its limits. “Federal courts cannot always        religious music suitable for Christmas is
Judge Posner in dismissing his case.                 avoid taking a stand on religious questions.”        not necessarily suitable for Easter. Even
                                                                                                          Mozart had to struggle over what was
Posner crept up cautiously on this one.              “If a local congregation of a hierarchical sect      suitable church music with his first patron,
Federal courts are secular agencies;                 seized the local church, changed the locks,          Archbishop Colloredo, whom the Mozart
therefore, “they do not exercise jurisdiction        and declared itself an independent religious         family called ‘the archbooby.’”
over the internal affairs of religious               organization, a court would ... enjoin the
organizations.”                                      seizure. Or if, to avoid having to pay the           In sum, said Posner, turning at last to the
                                                     minimum wage to its janitors, a church               case of this particular petitioner and his
This fairly pedestrian observation prompted                                                               supporters, Tomic had no right to a job
                                                     designated all its employees ‘ministers,’
a typically Posnerian aside: “When the United                                                             dependent upon the bishop’s discretion.
                                                     the court would treat the designation as a
States Constitution was written, England had                                                              “A federal court will not allow itself to get
ecclesiastical courts with curious names,                                                                 dragged into a religious controversy even
such as the Court of Arches and the Court of                                                              if a religious organization wants it dragged
                                                     In the case at hand, Posner saw pitfalls of
Peculiars. Since the United States was not to                                                             in.” In brief, who pays a church organist gets
                                                     jurisprudence. If Tomic’s suit were kept
have a national church, the federal judicial                                                              to pick the piper. Judge Posner, 67, doesn’t
                                                     alive, the diocese plausibly could argue that
power was not envisaged as extending to the                                                               fiddle around.
                                                     he was fired for a religious reason, e.g., that
resolution of ecclesiastical controversies.”
                                                     the organist wanted to play certain music
                                                     for Easter and the bishop wanted him to              (Letters to Mr. Kilpatrick should be sent by
(The jurisdiction of a Court of Peculiars
                                                     play something else. Such an argument                e-mail to kilpatjj@aol.com.)
extended to cases outside the usual
                                                     “would propel the court into a controversy,
jurisdiction of the bishop of a diocese. You                                                              COPYRIGHT 2005 UNIVERSAL PRESS
                                                     quintessentially religious, over what is
may explain this to your next dinner partner                                                              SYNDICATE
                                                     suitable music for an Easter service.”
when conversation lags. It had nothing to do
with the case of Richard Tomic.)                                                                          This feature may not be reproduced or
                                                     There is no “one way” to play music, the
                                                                                                          distributed electronically, in print or otherwise
                                                     court remarked. If Tomic played hymns
Posner was in his loquacious mode: “The                                                                   without the written permission of uclick and
                                                     with a rock ‘n’ roll beat, or played excerpts
right to form self-governing congregations                                                                Universal Press Syndicate.


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Description: A toast is in order for Judge Richard Posner of the 7th Circuit. He sued for violation of his rights under the Age Discrimination in Employment Act.
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