Jefferson Starship’s 1985 tribute to rock’s influence on the “city by the bay” even today transports us to a part of our cultural history.  If music can do that in a secular setting, can there be any doubt it can do so in a worship service?  Indeed, would not a church seek catharsis wistful or inspired during worship services and use music to obtain it?

In Demikovich v St. Andrew the Apostle Parish, Memorandum and Order, (USDC, ND Ill. ED. September 29, 2017), the federal court dismissed the Plaintiff’s employment discrimination case based on the First Amendment Ministerial Exception.  Plaintiff was a part-time employee that self-described his role as “music director, choir director and organist.”  In those roles, Plaintiff explained that he selected music played during mass.  His selections were not final and were subject to approval.  Plaintiff alleged he was fired for entering into a same sex marriage and because of disability arising from overweight and diabetes.

The Court listed the extant “music director” cases and explained that the church “held out [Plaintiff] as a minister, with a role distinct from that of most of its members.”  Thus, counsel faced with such a case may want to explore fully the authority the church employee had that a lay member did not.  The Court declined to consider final decision-making authority, or its absence, as determinative of whether the church employee was a “minister.”  The Court sanely recognized that everyone answers to somebody.  The Court held that the fundamental right to marry does not guarantee freedom from private discrimination but only governmental discrimination.  The Court did not reach the inquiry of whether “interference with the fundamental right to marry” included discrimination when the decision to marry or the marriage process was not affected by the adverse employment action but only penalized after the fact.

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