                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 04-4219
RICHARD TOMIC,
                                               Plaintiff-Appellant,
                                v.

CATHOLIC DIOCESE OF PEORIA,
                                               Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
                 for the Central District of Illinois.
             No. 04 C 1184—Michael M. Mihm, Judge.
                         ____________
      ARGUED DECEMBER 5, 2005—DECIDED APRIL 4, 2006
                         ____________


  Before POSNER, KANNE, and SYKES, Circuit Judges.
  POSNER, Circuit Judge. This age-discrimination suit by
the former music director and organist of a Catholic diocese,
dismissed on a motion to dismiss, requires us to consider
the scope of the rule that federal courts may not exercise
jurisdiction over the internal affairs of religious associations.
  Richard Tomic was employed as the music director and
organist both of a Roman Catholic church in Peoria (St.
Mary’s Cathedral) and of the Peoria diocese itself. The job
description for the diocesan position required him “to assist
the Office of Divine Worship in preparing and celebrating
2                                                 No. 04-4219

various diocesan liturgies” and “in planning and celebrating
liturgical events as requested.” The description of his church
job required him to play the organ for masses and other
events, including weddings and funerals, and, in his
capacity as music director, to “prepare music for all Parish
masses and liturgies . . . in consultation with the Rec-
tor/Pastor where necessary,” as well as to recruit, train,
direct, and rehearse the members of the chorus.
  A dispute with the bishop’s assistant concerning the
scheduling of Easter music culminated in Tomic’s dismissal
from both positions; he was 50 years old and was replaced
by a much younger person. The diocesan employment
handbook describes the diocese as “an Equal Opportunity
Employer” that does not discriminate on account of race,
sex, etc.—including age—with certain exceptions (such as
that employees “shall conform to the moral standards of the
Catholic faith”) that are not claimed to be applicable to
Tomic. In dismissing the suit, the district judge did not
explore the dispute between Tomic and the bishop’s
assistant or decide whether age had played any role in
Tomic’s dismissal.
   Federal courts are secular agencies. They therefore do
not exercise jurisdiction over the internal affairs of religious
organizations. E.g., Jones v. Wolf, 443 U.S. 595, 602 (1979);
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696,
709-10, 713-15 (1976); Presbyterian Church in the United
States v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U.S. 440, 449-50 (1969); Commack Self-Service
Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 427-28 (2d Cir.
2002); Dixon v. Edwards, 290 F.3d 699, 714-15 (4th Cir. 2002);
Note, “Judicial Intervention in Disputes over the Use of
Church Property,” 75 Harv. L. Rev. 1142 (1962). When Article
III of the Constitution created the federal judicial power,
No. 04-4219                                                  3

England had, as part of its established church, ecclesiastical
courts (with curious names, such as the “Court of Arches”
and the “Court of Peculiars”). 3 William Blackstone, Com-
mentaries on the Laws of England, ch. 5 (1768). 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. In contrasting our
situation with that of England, the Supreme Court re-
marked:
    In this country the full and free right to entertain any
    religious belief, to practice any religious principle,
    and to teach any religious doctrine which does not
    violate the laws of morality and property, and which
    does not infringe personal rights, is conceded to all. The
    law knows no heresy, and is committed to the support
    of no dogma, the establishment of no sect. The right to
    organize voluntary religious associations to assist in the
    expression and dissemination of any religious doctrine,
    and to create tribunals for the decision of controverted
    questions of faith within the association, and for the
    ecclesiastical government of all the individual members,
    congregations, and officers within the general associa-
    tion, is unquestioned. All who unite themselves to such
    a body do so with an implied consent to this govern-
    ment, and are bound to submit to it. But it would be a
    vain consent and would lead to the total subversion of
    such religious bodies, if any one aggrieved by one of
    their decisions could appeal to the secular courts and
    have them reversed. It is of the essence of these religious
    unions, and of their right to establish tribunals for the
    decision of questions arising among themselves, that
    those decisions should be binding in all cases of ecclesi-
    astical cognizance, subject only to such appeals as the
    organism itself provides for.
4                                                 No. 04-4219

Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871); see also
Note, supra, at 1155-56.
  A suit to remove a priest on the ground that he is a
heretic, or to reinstate a parishioner who has been excom-
municated, thus has never been justiciable in the fed-
eral courts. E.g., Serbian Eastern Orthodox Diocese v.
Milivojevich, supra, 426 U.S. at 698; Bouldin v. Alexander, 82
U.S. (15 Wall.) 131, 139-40 (1872); cf. Montano v. Hedgepeth,
120 F.3d 844, 850-51 (8th Cir. 1997). Even if the suit does not
involve an issue of religious doctrine, but concerns merely
the governance structure of the church, the courts will not
assume jurisdiction if doing so would interfere with the
church’s management. Kedroff v. St. Nicholas Cathedral, 344
U.S. 94, 116 (1952); Young v. Northern Illinois Conference of
United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994);
Combs v. Central Texas Annual Conference of United Methodist
Church, 173 F.3d 343, 350 (5th Cir. 1999); EEOC v. Catholic
University of America, 83 F.3d 455, 462-63 (D.C. Cir. 1996).
These cases “affirm the fundamental right of churches to
‘decide for themselves, free from state interference, matters
of church government as well as those of faith and doctrine.’ ”
Id. at 462, citing Kedroff; see also Gellington v. Christian
Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th
Cir. 2000). Also pertinent is NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490 (1979). The issue in that case was
whether the National Labor Relations Act applied to lay
teachers in Catholic schools. The Court held not, because
“the resolution of [unfair labor] charges by the [National
Labor Relations Board], in many instances, will necessarily
involve inquiry into the good faith of the position asserted
by the clergy-administrators and its relationship to the
school’s religious mission. It is not only the conclusions that
may be reached by the Board which may impinge on rights
guaranteed by the Religion Clauses, but also the very
No. 04-4219                                                  5

process of inquiry leading to findings and conclusions.” Id.
at 502.
  Thus “the First Amendment concerns [with assuming
jurisdiction in ecclesiastical cases] are two-fold. The first
concern is that secular authorities would be involved in
evaluating or interpreting religious doctrine. The second
quite independent concern is that in investigating em-
ployment discrimination claims by ministers against
their church, secular authorities would necessarily in-
trude into church governance in a manner that would
be inherently coercive, even if the alleged discrimination
were purely nondoctrinal.” Combs v. Central Texas Annual
Conference of United Methodist Church, supra, 173 F.3d at 350
(citations omitted). This second aspect of the internal-affairs
doctrine is called the “ministerial exception” to the exercise
of federal jurisdiction. E.g., Alicea-Hernandez v. Catholic
Bishop of Chicago, 320 F.3d 698, 702-03 (7th Cir. 2003).
  Both aspects govern decision even when—in fact most
commonly when—the complaint is not based on and does
not refer to religious doctrine or church management (as
in most Title VII and other employment-discrimination
suits) but it is apparent that a controversy over either may
erupt in the course of adjudication. E.g., id.; EEOC v. Roman
Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000).
  The ministerial exception, and the hands-off approach
more generally, do not place the internal affairs of religious
organizations wholly beyond secular jurisdiction. If a local
congregation of a hierarchical sect seized the local church,
changed the locks, and declared itself an independent
religious organization, a court would, upon suit by the
hierarchy, enjoin the seizure. Jones v. Wolf, supra, 443
U.S. at 602-03; Watson v. Jones, supra, 80 U.S. (13 Wall.) at
726-29; Maryland & Virginia Eldership of Churches of God
6                                                 No. 04-4219

v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 367-68
(1970) (per curiam); Church of God in Christ, Inc. v. Graham,
54 F.3d 522, 525-26 (8th Cir. 1995); cf. Presbyterian Church in
the United States v. Mary Elizabeth Blue Hull Memorial Presby-
terian Church, supra, 393 U.S. at 449-50. Or if to avoid having
to pay the minimum wage to its janitor a church designated
all its employees “ministers,” the court would treat the
designation as a subterfuge, see Dole v. Shenandoah Baptist
Church, 899 F.2d 1389, 1396-97 (4th Cir. 1990); cf. EEOC v.
Roman Catholic Diocese of Raleigh, supra, 213 F.3d at 801;
Bollard v. California Province of the Society of Jesus, 196 F.3d
940, 947 (9th Cir. 1999), just as the Internal Revenue Service
denies tax exemptions to religious associations that are not
bona fide. Living Faith, Inc. v. Commissioner, 950 F.2d 365,
372-73 (7th Cir. 1991); United States v. Jeffries, 854 F.2d 254,
257 (7th Cir. 1988); Spiritual Outreach Society v. Commissioner,
927 F.2d 335, 339 (8th Cir. 1991).
  These examples show that federal courts cannot always
avoid taking a stand on a religious question. In the sei-
zure case, there might be a dispute over whether, under
the internal law of the sect in question, local church prop-
erty was owned by the congregation or by the sect. The
court would have to answer the question in order to deter-
mine whether to issue the injunction; and though
the tendency of the courts is simply to accept whatever
answer the highest church authority gives to the question of
ownership, at a minimum the court must determine what is
that highest authority. In the janitor’s case, the court would
have to determine whether under the actual law of the
church in question (and not as a subterfuge) janitors really
were ministers. The internal-affairs exception is limited in
other ways as well. A church could not subject its clergy to
corporal punishment or require them to commit criminal
No. 04-4219                                                 7

acts. E.g., Employment Division v. Smith, 494 U.S. 872 (1990);
United States v. Indianapolis Baptist Temple, 224 F.3d 627,
629 (7th Cir. 2000). But it would not be constrained in its
dealings with them by employment laws that would
interfere with the church’s internal management, including
antidiscrimination laws. E.g., Alicea-Hernandez v. Catholic
Bishop of Chicago, supra, 320 F.3d at 702-04 (Title VII); EEOC
v. Roman Catholic Diocese of Raleigh, supra, 213 F.3d at 800-
01 (ditto); Minker v. Baltimore Annual Conference of United
Methodist Church, 894 F.2d 1354, 1356-57 (D.C. Cir. 1990)
(ADEA).
  It might seem that unless a church had a doctrine plac-
ing limitations of age, race, ethnic origin, disability, or
sex on ministers, the application of laws forbidding em-
ployment discrimination would not involve the court in
theological controversy. But this is not correct, because
the church would be likely to defend its employment ac-
tion on grounds related to church needs rooted in church
doctrine. See Scharon v. St. Luke’s Episcopal Presbyterian
Hospitals, 929 F.2d 360, 363 (8th Cir. 1991). The reference
in the complaint in this case to the dispute between
Tomic and the bishop’s assistant suggests that if the suit
were permitted to go forward, the diocese would argue that
he was dismissed for a religious reason—his opinion
concerning the suitability of particular music for Easter
services—and the argument could propel the court into
a controversy, quintessentially religious, over what
is suitable music for Easter services. Tomic would
argue that the church’s criticism of his musical choices was a
pretext for firing him, that the real reason was his age. The
church would rebut with evidence of what the liturgically
proper music is for an Easter Mass and Tomic might in turn
dispute the church’s claim. The court would be asked to
8                                                 No. 04-4219

resolve a theological dispute. DeMarco v. Holy Cross High
School, 4 F.3d 166, 171 (2d Cir. 1993).
   This assumes, however, that as organist and music
director, Tomic, unlike the janitor of St. Mary’s Cathedral,
really did have religious duties. See id. at 171-72. So far as
his role as organist is concerned, his lawyer says that
all Tomic did was play music. But there is no one way
to play music. If Tomic played the organ with a rock and
roll beat, or played excerpts from Jesus Christ Superstar, at an
Easter Mass he would be altering the religious experience of
the parishioners. Among his duties as music director was
that of selecting the music to be played at the various
masses. That duty required him to make a discretionary
religious judgment because the Catholic Church does not
have rules specifying what piece of music is to be played at
each type of mass. Raymond F. Glover, “Liturgical Music:
Its Forms and Functions,” in Liturgy and Music: Lifetime
Learning 231, 247-48 (Robin A. Leaver & Joyce Ann
Zimmerman, eds. 1998).
  At argument Tomic’s lawyer astonished us by argu-
ing that music has in itself no religious significance—its
only religious significance is in its words. The implication is
that it is a matter of indifference to the Church and its flock
whether the words of the Gospel are set to Handel’s Messiah
or to “Three Blind Mice.” That obviously is false. The
religious music played at a wedding is not necessarily
suitable for a funeral; and religious music written for
Christmas is not necessarily suitable for Easter. Even Mozart
had to struggle over what was suitable church music with
his first patron, Archbishop Colloredo, whom the Mozart
family called the “arch-booby.” “[M]usic is a vital means of
expressing and celebrating those beliefs which a religious
community holds most sacred. Music is an integral part of
No. 04-4219                                                  9

many different religious traditions,” including the Catholic
tradition. EEOC v. Roman Catholic Diocese of Raleigh, supra,
213 F.3d 795, 802-03; see also Starkman v. Evans, 198 F.3d
173, 176-77 (5th Cir. 1999). Like the plaintiff in the Starkman
case, Tomic “performed tasks that were ‘traditionally
ecclesiastical or religious.’ ” Id. at 177.
  The rector or bishop could override Tomic’s choices
of what music to play. But it is easy to see how disagree-
ment with his choices could convince the ecclesiastical
authorities that they would be better off with someone
else in the job. If as in this case the music director is at
least 40 years old and therefore within the class protected by
the Age Discrimination in Employment Act, the ability of
the church and the diocese to remove him will be inhibited
unless the ministerial exception is applicable. Since, as we
have just seen, Tomic’s duties, unlike those, say, of the
person who tunes the organ in St. Mary’s Cathedral, had a
significant religious dimension, Tomic forfeited his rights
under the Act.
   DeMarco v. Holy Cross High School, supra, is a case just
across the line from this one. The plaintiff in an age-discrim-
ination suit, DeMarco was a math teacher at a Catholic
school. He had minor religious duties—leading the students
in prayers and taking them to Mass—but the court thought
it unlikely that a trial of his age-discrimination claim would
entail an examination of religious doctrine. The key passage
in the court’s opinion is the following: “the references to
Holy Cross’s religious mission are linked to two very
specific allegations: that DeMarco failed to attend Mass and
to lead his students in prayers. Given that the religious
duties that DeMarco allegedly failed to carry out are easily
isolated and defined, we are confident that the able district
judge will be able to focus the trial upon whether DeMarco
10                                              No. 04-4219

was fired because of his age or because of failure to perform
religious duties, and that this can be done without putting
into issue the validity or truthfulness of Catholic religious
teaching.” 4 F.3d at 172. DeMarco either did or did not lead
his students in prayer and attend mass. These were simple
questions of fact, no different from whether he correctly
added 2 plus 2, and could be answered without reference to
church doctrine. That is not true with respect to the wisdom
or propriety of Tomic’s choice of music to play at an Easter
Mass.
  The court in DeMarco distinguished the Supreme
Court’s decision in Catholic Bishop on the ground that
the National Labor Relations Act imposes more comprehen-
sive duties on employers than the age-discrimination law.
4 F.3d at 169. Fair enough; but DeMarco also distinguished
cases in which the employee is a member of the clergy, id. at
171-72; and the music director of a Catholic church and
diocese is more like a clergyman than a math teacher. Also
distinguishable is Tony & Susan Alamo Foundation v. Secretary
of Labor, 471 U.S. 290, 303-06 (1985), a replay of Catholic
Bishop except that in Alamo the employees were not
parochial-school teachers but instead the employees of
commercial enterprises owned by the church. The Court
could not see how even the regulation of the enterprises’
labor practices by the Fair Labor Standards Act could inject
a reviewing court into a religious dispute.
  But we must consider whether it makes a difference
that the diocese represents itself to be an “equal opportu-
nity” employer, specifically with respect to age. Tomic
argues that this representation in the employee handbook,
though it disclaims creating a contractual obligation, should
estop the diocese to deny that it is subject to the age-dis-
crimination law. Now it is very unlikely that
No. 04-4219                                                  11

the representation should be interpreted to embrace reli-
gious functionaries, such as the music director. Among the
forms of discrimination that the handbook forbids is
discrimination on grounds of sex, though women of
course cannot be Catholic priests. But in any event the
ministerial exception, like the rest of the internal-affairs
doctrine, is not subject to waiver or estoppel. Minker v.
Baltimore Annual Conference of United Methodist Church, supra,
894 F.2d at 1356-57. A federal court will not allow itself to
get dragged into a religious controversy even if a religious
organization wants it dragged in. There is an analogy to the
refusal of the courts to honor certain choice of law provi-
sions in contracts. Generally, such a provision is honored. If
a contract between citizens of Illinois specifies that the law
of New York shall govern any dispute arising from the
contract, a court in Illinois will apply that law. But as we
said in Lloyd v. Loeffler, 694 F.2d 489, 495 (7th Cir. 1982), if
the parties stipulated that their dispute would be governed
by the Code of Hammurabi the court would refuse to honor
the stipulation. Judges have an interest independent of party
preference for not being asked to decide an issue that they
cannot resolve intelligently. Americans would, moreover, be
deeply offended at the thought of their secular courts taking
on the additional role of religious courts, as if the United
States were a theocracy.
  After the oral argument in this case, the Second Circuit
held (over dissent) that the Religious Freedom Restora-
tion Act, 42 U.S.C. §§ 2000bb et seq. (which in the wake of
City of Boerne v. Flores, 521 U.S. 507 (1997), is limited to
federal action, O’Bryan v. Bureau of Prisons, 349 F.3d 399,
401 (7th Cir. 2003)) amended the ADEA to wipe out the
ministerial exception and substitute RFRA’s standard,
which requires deciding whether a particular law imposes
a substantial burden on religious activity. Hankins v. Lyght,
12                                                No. 04-4219

438 F.3d 163, 169 (2d Cir. 2006). The decision would if sound
invalidate the many decisions in this and other circuits
recognizing the ministerial exception to federal employment
discrimination law. The decision is unsound. RFRA is
applicable only to suits to which the government is a party.
See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v.
Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th
Cir. 2000); Sutton v. Providence St. Joseph Medical Center, 192
F.3d 826, 834-35 (9th Cir. 1999). “A person whose religious
exercise has been burdened in violation of this section may
assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a govern-
ment.” 42 U.S.C. § 2000bb-1(c).
   It is hardly to be imagined, moreover, that in seeking
to broaden the protection of religious rights, Congress,
dropping nary a hint, wiped out a long-established doctrine
that gives greater protection to religious autonomy than
RFRA does. Indeed a serious constitutional issue would be
presented if Congress by stripping away the ministerial
exception required federal courts to decide religious
questions. The exception is based on the establishment and
free-exercise clauses of the First Amendment, see, e.g.,
Combs v. Central Texas Annual Conference of United Methodist
Church, supra, 173 F.3d at 350; Rayburn v. General Conference
of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985),
which place tight limits on governmental authority to
regulate religion. In the Catholic Bishop case, the majority
adopted a strained interpretation of the National Labor
Relations Act in order to avoid confronting this constitu-
tional issue. The dissent thought the strain too great, but did
not deny the existence of such an issue, or intimate a view
on how it should be resolved. 440 U.S. at 517-18.
No. 04-4219                                                13

  It is no surprise that the appellant in Hankins did not even
argue RFRA; nor does Tomic.
                                                   AFFIRMED.

A true Copy:
        Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—4-4-06
