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COURT REPORTER
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 1870s, 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.”
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
lost before Judge Michael L. Mihm (cq) in
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
designated all its employees ‘ministers,’
supporters, Tomic had no right to a job
the court would treat the designation as a
dependent upon the bishop’s discretion.
subterfuge.”
“A federal court will not allow itself to get
This fairly pedestrian observation prompted a typically Posnerian aside: “When the United States Constitution was written, England had ecclesiastical courts with curious names, such as the Court of Arches and the Court of Peculiars. 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.” (The jurisdiction of a Court of Peculiars extended to cases outside the usual jurisdiction of the bishop of a diocese. You may explain this to your next dinner partner when conversation lags. It had nothing to do with the case of Richard Tomic.) Posner was in his loquacious mode: “The right to form self-governing congregations
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dragged into a religious controversy even In the case at hand, Posner saw pitfalls of
if a religious organization wants it dragged
jurisprudence. If Tomic’s suit were kept
in.” In brief, who pays a church organist gets
alive, the diocese plausibly could argue that
to pick the piper. Judge Posner, 67, doesn’t
he was fired for a religious reason, e.g., that
fiddle around.
the organist wanted to play certain music for Easter and the bishop wanted him to
(Letters to Mr. Kilpatrick should be sent by
play something else. Such an argument
e-mail to kilpatjj@aol.com.)
“would propel the court into a controversy, quintessentially religious, over what is suitable music for an Easter service.” There is no “one way” to play music, the court remarked. If Tomic played hymns with a rock ‘n’ roll beat, or played excerpts
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