Employment Law Daily Ministerial exception nixes married gay music director’s discriminatory discharge claims
Wednesday, October 4, 2017

Ministerial exception nixes married gay music director’s discriminatory discharge claims

By Joy P. Waltemath, J.D.

The ministerial exception was evident on the face of a gay music director’s Title VII, ADA, and state and local law discrimination complaint, a federal district court in Illinois ruled, dismissing claims alleging he was unlawfully fired four days after he married his male partner. The employee also asserted he was fired because of his diabetes and metabolic syndrome, as evidenced by complaints made by his pastor about the cost of keeping him on the parish’s health and dental insurance. But because he admittedly selected and played music for worship during masses at the church—even if the pastor could override his musical choices—he performed important religious functions distinct from the role of most other church members to qualify for the religious exemption (Demkovich v. St. Andrew the Apostle Parish, September 29, 2017, Chang, E.).

Get married, get fired. Two years after he began working for the parish and four days after the music director—whom the pastor knew was gay and engaged to another man—married his partner, he was asked to resign “because of his marriage.” Allegedly the pastor had already told his staff that the music director had been fired and, when he refused to resign, he was fired. The music director’s complaint also alleged statements reflecting animus by the pastor based on the director’s sexual orientation; he also claimed that the pastor had told him he “should marry his partner and that [the pastor] would like to attend their wedding.” In addition, the music director alleged that his disabilities (diabetes and metabolic syndrome) were a contributing factor, purportedly because the pastor repeatedly urged him to lose weight and complained about the cost of keeping him on the parish’s health insurance.

Ministerial exception. Although the ministerial exception is actually an affirmative defense, not typically a reason for dismissing a claim for failure to state a claim, here the court found that the face of the complaint established that the ministerial exception, which is expressly grounded in the First Amendment’s religion clauses, applied. To determine whether a plaintiff qualifies as a minister, the court engaged in a fact- and case-specific analysis, considering his job title (music director, choir director, and organist), job duties, and whether he “reflected a role in conveying the Church’s message and carrying out its mission” or held himself out as a minister.

Selecting worship music. Looking at his job title and his self-described function at St. Andrew of selecting the music played during masses,” the court found the exception’s applicability is inescapable. By selecting music for mass, he engaged in the important religious function of worship music, and the church itself held him out as a minister. That meant, stressed the court, that the reason for his firing was irrelevant; rather, what the ministerial exception protects is the “authority to select and control who will minister to the faithful” without government interference, period.

The music director made several arguments against the application of the exception, all of which failed. First, he said he was not a minister because the pastor could override his musical choices, but a minister need not have final decisionmaking power; many ministers are subordinate to others in the church hierarchy. The fact that he was part-time also did not disqualify him from ministerial status.

Neither did the fact that the pastor knew he was gay, and allegedly encouraged him to marry his partner. The employee reasoned that the pastor would not have encouraged the marriage if the pastor actually believed that the employee was a “minister” of the church, since a person in a same-sex marriage cannot be ordained in the Catholic Church. However, ordination is not necessary for ministerial status, the court noted.

Even at the pleading stage. And while courts often wait to resolve affirmative defenses until after fact discovery, here the exception was apparent from the face of the complaint: by pleading that he selected the music for each mass, he had presented all the facts necessary to decide the ministerial exception without discovery.

Constitutional right to marry. As for the music director’s argument based on his constitutional right to marry, the court pointed out that was a right to be free from government discrimination, not a right to be free from private discrimination, and, as based on the 14th Amendment, it had no application to an employment action by a private religious organization directed against one of its ministers. Consequently, the ministerial exception did apply despite the fundamental right to marry.

State and local law claims also dismissed. The court found dismissal of all of the music director’s claims—federal, Illinois, and Cook County—appropriate on the basis of the ministerial exception. The Supreme Court firmly grounded the ministerial exception in the First Amendment, which the 14th Amendment incorporated against the states, and thus it disposed of his state law claims as well.

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