Behrend v. San Francisco Zen Center, Inc.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ALEXANDER BEHREND, Case No. 21-cv-01905-JSC

8 Plaintiff,

ORDER RE: DEFENDANT’S MOTION

9 v. FOR SUMMARY JUDGMENT

10 SAN FRANCISCO ZEN CENTER, INC., et Re: Dkt. No. 63

al.,

11

Defendants.

12

13 Alexander Behrend sues his former employer, the San Francisco Zen Center, for

14 discrimination on the basis of his disabilities.1 Before the Court is SF Zen Center’s motion for

15 summary judgment on its affirmative defense, the ministerial exception. (Dkt. No. 63.)2 Having

16 carefully considered the briefing, and with the benefit of oral argument on February 2, 2023, the

17 Court GRANTS the motion. SF Zen Center has established as a matter of undisputed fact that Mr.

18 Behrend’s work was part of a religious practice program and implicates the organization’s “power

19 to decide for [itself], free from state interference, matters of church government[,] . . . faith and

20 doctrine.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 186

21 (2012) (cleaned up).

22 FACTUAL BACKGROUND

23 A. SF Zen Center

24 San Francisco Zen Center is the largest Soto Zen Buddhist church in North America. (Dkt.

25 No. 64-2 ¶ 6; see Dkt. No. 64-28.) It consists of three temples: City Center, Tassajara Mountain

26

27 1 Mr. Behrend has agreed to dismiss the other Defendants. (Dkt. No. 67 at 4 n.1.)

1 Center, and Green Gulch Farm. (Dkt. No. 64-2 ¶ 8.) SF Zen Center “is a religious training

2 institution, and offers several different types of programs for individuals interested in learning

3 about and training in Zen Buddhism.” (Id. ¶ 10.) While some programs are offered to the general

4 public, it reserves others for those who live full-time at a temple through three residential

5 programs, each of which requires having participated in the preceding program: guest student (2-6

6 week residency), Work Practice Apprentice (2-3 year residency), and Staff. (Id. ¶¶ 10, 14–16; see

7 Dkt. No. 64-12 (Work Practice Apprentice policies).) SF Zen Center “is a Soto Zen residential

8 training center, and all residents are admitted and supported to be in residency with this primary

9 purpose in mind.” (Dkt. No. 64-9 at 2.) All residents agree to follow the Shingi (Pure Standards

10 or Guidelines for Conduct) and the Residents’ Handbook. (Dkt. No. 64-2 ¶¶ 11, 13; Dkt. No. 64-7

11 at 13; see Dkt. Nos. 64-9, 64-11.)

12 All residents participate in both “formal practice” and “work practice.” (Dkt. No. 64-2 ¶¶

13 11–12.) Formal practice includes morning and evening zazen meditations and services, soji

14 (temple cleaning), dharma talks, classes, and events including monthly full moon ceremonies, one-

15 day sit meditations, and three- to five-day sesshin meditations. (Dkt. No. 64-9 at 5–6; Dkt. No.

16 64-10 at 2; see Dkt. No. 64-6 at 13; Dkt. No. 64-7 at 8–9, 15–16; Dkt. No. 67-7 at 50, 52.)

17 Work practice includes cooking, dishwashing, bathroom cleaning, preparing guest rooms,

18 and doan ryo ceremonial tasks “which support the formal practice, such as ringing bells, cleaning

19 altars, [and] watching the door during zazen [meditations].” (Dkt. No. 64-9 at 5–7.) Work

20 practice is an “essential” and “indivisible” part of Zen training. (Dkt. No. 64-2 ¶ 12; Dkt. No. 64-

21 12 at 4.) According to a document written by a SF Zen Center practitioner “about the importance

22 of work practice in the practice of Zen Buddhism,” (Dkt. No. 64-2 ¶ 12):

23 When work is practice it is seen as part of our zazen (meditation)

practice itself. It is an end in itself. Work and zazen go hand in hand.

24 Both are necessary and without one, the other suffers. When work is

practice, it is a Buddha doing what a Buddha does, how a Buddha

25 does it.

26 . . . “Zen Mind” is a willingness to engage ourselves wholeheartedly

in whatever we are doing in the present moment, whether it is making

27 up a bed, cleaning a toilet, chopping a carrot, or serving a guest in the

and generosity of the mind that is accepting, fresh, and full of

1 possibility.

2 . . . Silence supports our practice of full engagement and mindfulness.

At first, this silence may feel uncomfortable. And just like in zazen,

3 when you notice the mind wandering off into fantasy, criticism, the

urge to chat, or any other distraction, you gently but firmly bring it

4 back to the breath, the body, and the task at hand.

5 (Dkt. No. 64-10 at 2–3; see also Dkt. No. 64-4 at 8 (“It’s a meditation in the kitchen as well as in

6 the Zendo [temple]. The only difference is people are sitting still in the Zendo, and they’re doing

7 work practice in the kitchen.”); Dkt. No. 64-6 at 7 (“[T]he way that [SF] Zen Center approaches

8 work practice is . . . to develop this idea of beginner’s mind. . . . [W]e try to . . . have people look

9 at discomfort, look at work as a—an element of their practice and look at how their mind is

10 working while they’re practicing . . . .”); Dkt. No. 64-9 at 7 (“Enter wholeheartedly into the work

11 that has been assigned. Maintain silence as much as possible at work.”).) In particular, for Work

12 Practice Apprentices:

13 [Work Practice Apprentice] positions at [SF Zen Center] are part of

the religious training. Communal work practice is an integral and

14 indivisible part of the Zen training and spiritual practice offered at [SF

Zen Center]. The terms “work practice” and “work” as used in these

15 guidelines incorporate these fundamental principles.

16 . . . [SF] Zen Center is primarily a Zen training temple and therefore

work practice positions are temporary training positions. Work

17 practice positions have a specific term and are rotated.

18 (Dkt. No. 64-12 at 4, 10.)

19 The Pure Standards (Guidelines for Conduct) for Residential Zen Training disclose that

20 “Residents are asked to attend 100% of the formal practice schedule,” and “[a]ny month in which

21 a resident’s attendance falls below 80% is a matter of high concern.” (Dkt. No. 64-9 at 3.)

22 Further, “[a] consistent pattern over an extended period of time of less than 80% attendance of the

23 formal schedule, and/or a lack of fulfillment of other communal and work practice responsibilities

24 . . . may be cause for the Practice Committee to consider whether a student is thriving and/or able

25 to make a residential practice at City Center a priority.” (Id.)

26 There are three levels of ordination in Soto Zen Buddhism at SF Zen Center: lay, priest,

27 and teacher ordination. (See Dkt. No. 64-7 at 10 (“I, myself, am a Zen priest and I have been

1 ordination usually ten or twenty years down the road where you become an official, quote-

2 unquote, ‘teacher’ and you can ordain teachers.”); Dkt. No. 67-7 at 24–25, 27–29.) Becoming lay

3 ordained, a priest, or a teacher has a unique timeline for each practitioner. (Dkt. No. 64-7 at 10–

4 12, 21–22.) For example, one SF Zen Center resident of 21 years is lay ordained; one former

5 resident of 10 years is a priest with plans to ordain as a teacher; and another resident was lay

6 ordained for three years before becoming priest ordained. (Id. at 12.) The processes are non-

7 linear and non-Western. (Id. at 11, 20–21.)

8 B. Mr. Behrend and SF Zen Center

9 Mr. Behrend learned about SF Zen Center by searching online for volunteer opportunities.

10 (Dkt. No. 67-3 ¶ 2.) In May 2014, Mr. Behrend had suffered serious injuries from a car accident

11 and been diagnosed with post-traumatic stress disorder (“PTSD”). (Id. ¶ 1.) That summer, he

12 volunteered a few times with SF Zen Center’s food outreach program as a way to take his mind

13 off the car accident. (Id. ¶ 2.) He was not interested in adopting a new religion and did not think

14 SF Zen Center was a religious organization. (Id.) Since the accident, Mr. Behrend has not been

15 able to return to the high-performance industry in which he built a career, which in turn has made

16 it difficult to afford stable housing. (Id. ¶ 1.)

17 In fall 2015, Mr. Behrend resumed volunteering with SF Zen Center’s food outreach

18 program. (Id. ¶ 3.) He became more involved by attending meditations one to three times a week

19 and participating in the Saturday sangha, a group of non-residents who assisted by watching the

20 door, guiding visitors through the building, cooking lunch, cleaning up, and listening to a dharma

21 talk. (Id. ¶¶ 3–4.) At this time, Mr. Behrend “knew that Buddhism was a type of religion and

22 viewed these dharma talks as a type of sermon.” (Id. ¶ 4.) In 2016, Mr. Behrend continued

23 attending SF Zen Center programs as a non-resident. He also participated in a “practice period”

24 lasting several months, which involved weekly book discussions, monthly one-day sits, and a

25 three-day sesshin. (Id. ¶ 6.)

26 In summer or fall 2016, Mr. Behrend was given one month’s notice of losing his housing.

27 (Id. ¶ 9.) He spoke with David Zimmerman, SF Zen Center’s head of practice, who encouraged

1 employment,” had met friendly and supportive residents, and appreciated how meditation and the

2 physical, repetitive work he did at SF Zen Center helped him manage his PTSD symptoms. (Id. ¶¶

3 8–9.) He applied to be a guest student and began in November 2016. (Id. ¶ 10.) As a guest

4 student, he attended morning meditation, worked from 9:00 a.m. to midday, ate lunch with other

5 residents, worked from 1:30 to 3:30 p.m., and attended evening meditation. He also attended

6 dharma talks twice a week and met with the work leader once a week.

7 Mr. Behrend applied to be a Work Practice Apprentice and began in January 2017. (Id. ¶

8 11.) By then, he considered himself “a practicing Zen Buddhist, but was not interested in

9 becoming an ordained priest.” (Id.) As a Work Practice Apprentice, he kept a similar schedule to

10 a guest student, and received room, board, and a stipend. (Id. ¶ 12; see Dkt. No. 64-12 at 6, 10.)

11 His first work practice assignment was guest services (shika crew), where his duties included

12 “checking guests into the lodging that [SF Zen Center] offered to paying customers, handling and

13 processing payments, preparing guest rooms, preparing conference rooms and event spaces for

14 organizations that rented the space, cleaning and folding laundry, answering guest’s questions, and

15 revising and expanding a concierge packet.” (Dkt. No. 67-3 ¶ 13.) “Each morning before work

16 began, members of the guest services crew would spend five minutes . . . bowing in front of a

17 small figurine of Buddha,” “sprinkling flowers,” and “read[ing] a few paragraphs from a book

18 about Buddhism.” (Id.) Mr. Behrend was later assigned to the kitchen (tenzen crew), where he

19 cooked and washed dishes. (Id. ¶ 14.) “Each morning . . . , we would bow to an altar in the

20 kitchen and recite out of the Tenzo Kyokun (‘Instructions for the Cook’), for 5-10 minutes before

21 starting work.” (Id.)

22 In September 2018, SF Zen Center told Mr. Behrend he would be reassigned to the

23 maintenance crew. (Id. ¶ 24.) He “briefly worked on the maintenance crew, but this work

24 exacerbated [his] PTSD symptoms, and [he] sought employment on another work crew, which

25 was denied.” (Id.) Mr. Behrend alleges SF Zen Center’s course of dealing after September 2018,

26 including demanding he move out in January 2019, was disability discrimination in violation of

27 the Americans with Disabilities Act and the Rehabilitation Act. (Dkt. No. 1 at 4–5.) He alleges

1 accommodation, retaliation, and termination. (Id. at 2.) Mr. Behrend eventually left residency in

2 August or September 2019. (Dkt. No. 67-3 ¶ 25.)

3 PROCEDURAL HISTORY

4 Mr. Behrend, without representation by counsel, filed this action after he left SF Zen

5 Center. The Court referred him to the Northern District of California Legal Help Desk for

6 possible appointment of counsel, and pro bono counsel was located and appeared on his behalf.

7 Following a case management conference, the Court ordered SF Zen Center to file a summary

8 judgment motion on its First Amendment Religion Clauses affirmative defense following

9 discovery on this issue. It did so, and the Court heard oral argument on the motion on February 2,

10 2023.

11 DISCUSSION

12 I. Legal Standard

13 The Constitution’s “Religion Clauses protect the right of churches and other religious

14 institutions to decide matters of faith and doctrine without government intrusion.” Our Lady of

15 Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020) (cleaned up). “State

16 interference in that sphere would obviously violate the free exercise of religion, and any attempt

17 by government to dictate or even to influence such matters would constitute one of the central

18 attributes of an establishment of religion. The First Amendment outlaws such intrusion.” Id.

19 Matters of church governance are closely linked to the independence of religious

20 institutions in matters of “faith and doctrine.” Id. (cleaned up). This linkage means the Religion

21 Clauses protect a religious institution’s “autonomy with respect to internal management decisions

22 that are essential to the institution’s central mission. And a component of this autonomy is the

23 selection of the individuals who play certain key roles.” Id. What is known as the “ministerial

24 exception” to employment discrimination laws arises from these principles. “Under this rule,

25 courts are bound to stay out of employment disputes involving those holding certain important

26 positions with churches and other religious institutions.” Id. A religious institution’s

27 “independence on matters of faith and doctrine requires the authority to select, supervise, and if

1 “In determining whether a particular position” falls within the ministerial exception, “a

2 variety of factors may be important.” Id. at 2063. In Hosanna-Tabor, the plaintiff-teacher’s role

3 “in conveying the Church’s message and carrying out its mission” was important, as was her title

4 of “minister.” Id. at 2062 (citing Hosanna-Tabor, 565 U.S. at 192). Further, to be awarded that

5 title, she had to satisfy significant academic requirements. Id. (citing Hosanna-Tabor, 565 U.S. at

6 191). But in Guadalupe, the Supreme Court explained its consideration of those factors in

7 Hosanna-Tabor “did not mean that they must be met—or even that they are necessarily

8 important—in all other cases.” Id. at 2063; see also Hosanna-Tabor, 565 U.S. at 190 (The

9 Supreme Court has declined “to adopt a rigid formula for deciding when an employee qualifies as

10 a minister,” but has explained the exception “is not limited to the head of a religious

11 congregation”); Puri v. Khalsa, 844 F.3d 1152, 1159 (9th Cir. 2017) (“neither the Supreme Court

12 nor this court has ever expressly limited the ministerial exception to particular types of positions”).

13 So, while giving an employee the title of minister is not enough on its own to satisfy the

14 ministerial exception, it is also not a necessary requirement. Guadalupe, 140 S. Ct. at 2063.

15 “Requiring the use of the title would constitute impermissible discrimination, and this problem

16 cannot be solved simply by including positions that are thought to be the counterparts of a

17 ‘minister,’ such as priests, nuns, rabbis, and imams.” Id. at 2064. Similarly, “the academic

18 requirements of a position may show that the church in question regards the position as having an

19 important responsibility in elucidating or teaching the tenets of the faith. . . . But insisting in every

20 case on rigid academic requirements could have a distorting effect.” Id. “[T]hese circumstances,

21 while instructive in Hosanna-Tabor, are not inflexible requirements and may have far less

22 significance in some cases.” Id.

23 Instead, the Supreme Court has commanded that “[w]hat matters, at bottom, is what an

24 employee does.” Id. In Hosanna-Tabor and Guadalupe, what mattered “was the recognition that

25 educating young people in their faith, inculcating its teachings, and training them to live their faith

26 are responsibilities that lie at the very core of the mission of a private religious school.” Id. In

27 light of that understanding, the Supreme Court concluded the teachers in Guadalupe “performed

Educating and forming students in the Catholic faith lay at the core of

1 the mission of the schools where they taught, and their employment

agreements and faculty handbooks specified in no uncertain terms

2 that they were expected to help the schools carry out this mission and

that their work would be evaluated to ensure that they were fulfilling

3 that responsibility. . . . And both their schools expressly saw them as

playing a vital part in carrying out the mission of the church, and the

4 schools’ definition and explanation of their roles is important. . . . A

religious institution’s explanation of the role of such employees in the

5 life of the religion in question is important.

6 Id.

7 The ministerial exception is an affirmative defense and SF Zen Center’s burden to prove.

8 Hosanna-Tabor, 565 U.S. at 195 n.4. As the party bearing that burden at trial, to prevail on its

9 summary judgment motion SF Zen Center “must affirmatively demonstrate that no reasonable

10 trier of fact could find other than for” it, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984

11 (9th Cir. 2007), “such that every element of [the defense] must be resolved in [its] favor as a

12 matter of law based on undisputed evidence,” Terraza v. Safeway Inc., No. 16-CV-03994-JST,

13 2019 WL 12872959, at *3 (N.D. Cal. Mar. 27, 2019) (cleaned up).

14 II. Analysis

15 Mr. Behrend does not dispute SF Zen Center is a religious organization. (Dkt. No. 67 at 4

16 n.1.) The question is whether Mr. Behrend falls within the First Amendment Religion Clauses

17 exception. Drawing all reasonable inferences in Mr. Behrend’s favor, the totality of the

18 undisputed facts compel the conclusion that the First Amendment bars application of the

19 discrimination laws to Mr. Behrend’s position at SF Zen Center.

20 Mr. Behrend’s title was Work Practice Apprentice, and he held himself out as a Work

21 Practice Apprentice. And, at SF Zen Center he acted as a Work Practice Apprentice—fulfilling

22 both the formal practice and work practice requirements. These facts are undisputed. It is also

23 undisputed that as a participant in the Work Practice Apprentice program he was practicing and

24 training in Soto Zen Buddhism. Indeed, the record compels a finding that nearly all of his time at

25 the Center involved the practice of Soto Zen Buddhism. See Hosanna-Tabor, 565 U.S. at 194

26 (noting “[t]he amount of time an employee spends on particular activities is relevant in assessing

27 that employee’s status, but that factor cannot be considered in isolation,” and concluding

1 each workday”).

2 Mr. Behrend’s focus on his work responsibilities does not change the analysis. There is no

3 genuine dispute that Mr. Behrend’s work practice time was religious in nature. The undisputed

4 record shows SF Zen Center considers work practice an integral part of Soto Zen Buddhism

5 training. It considers all of a Work Practice Apprentice’s work practice time an expression and

6 practice of faith—not merely the ceremonial opening activities and bowing and chanting

7 throughout the day, but all the work duties in between. See Guadalupe, 140 S. Ct. at 2066 (“A

8 religious institution’s explanation of the role of such employees in the life of the religion in

9 question is important.”). Evidence that work practice took precedence over formal practice

10 activities does not create a material dispute, because SF Zen Center considers work practice an

11 equal expression of faith as formal practice. Likewise, evidence that some Work Practice

12 Apprentices took the Shingi less seriously than others or talked inappropriately during work

13 practice does not create a genuine dispute that they were involved in a religious training program.

14 See Hosanna-Tabor, 565 U.S. at 193 (noting it is “surely relevant” that “a recognized religious

15 mission underlie[s] the description of the employee’s position”); Markel v. Union of Orthodox

16 Jewish Congregations of Am., No. 2:19-CV-10704-JWH-SK, 2023 WL 1093676, at *8 (C.D. Cal.

17 Jan. 3, 2023) (“As mashgiach, [Plaintiff] was integral to the koshering of wine for use by

18 Orthodox Jews and the greater Jewish community, and his efforts were necessary in fulfilling an

19 important function of the Jewish faith.”).

20 Mr. Behrend’s evidence that he neither held a leadership role at SF Zen Center nor was on

21 a path to attain one does not alter the result. The question of religious leadership has featured

22 prominently in recent ministerial exception cases, which tend to involve a teacher or comparable

23 employee at a religious school. See Guadalupe, 140 S. Ct. at 2056–59 (elementary school lay

24 teachers); Hosanna-Tabor, 565 U.S. at 177–78 (“called” teacher); Palmer v. Liberty Univ., Inc.,

25 No. 6:20-CV-31, 2021 WL 6201273, at *3–4 (W.D. Va. Dec. 1, 2021) (Professor of Art), appeal

26 docketed, No. 21-2434 (4th Cir. Dec. 29, 2021); Ostrander v. St. Columba Sch., No. 3:21-CV-

27 00175-W-LL, 2021 WL 3054877, at *1 (S.D. Cal. July 20, 2021) (preschool teacher); Starkey v.

1 2020) (guidance counselor); Tucker v. Faith Bible Chapel Int’l, No. 19-CV-01652-RBJ, 2020 WL

2 2526798, at *1–5 (D. Colo. May 18, 2020) (science teacher, Director of Student Life, Chaplain);

3 Richardson v. Nw. Christian Univ., 242 F. Supp. 3d 1132, 1145 (D. Or. 2017) (Assistant Professor

4 of Exercise Science); DeWeese-Boyd v. Gordon Coll., 487 Mass. 31, 34–41 (2021) (Associate

5 Professor of Social Work), cert. denied, 142 S. Ct. 952 (2022); see also Skrzypczak v. Roman

6 Cath. Diocese of Tulsa, 611 F.3d 1238, 1243–44 (10th Cir. 2010) (Director of Diocese’s

7 Department of Religious Formation, who supervised and taught at Pastoral Studies Institute).

8 Teaching is a position of leadership with respect to that teacher’s students, and the Supreme Court

9 has concluded that if such leadership is religious in nature, it reflects a role in carrying out the

10 religious school’s mission. See Guadalupe, 140 S. Ct. at 2064 (“[E]ducating young people in their

11 faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at

12 the very core of the mission of a private religious school.”); id. at 2066 (noting “the close

13 connection that religious institutions draw between their central purpose and educating the young

14 in the faith”). Other cases have involved employees “actively in the process of becoming ordained

15 ministers,” and thus on a path to religious leadership. Alcazar v. Corp. of the Catholic Archbishop

16 of Seattle, 627 F.3d 1288, 1292 (9th Cir. 2010) (en banc).

17 But the ministerial exception does not “appl[y] only to leaders” of the faith. Guadalupe,

18 140 S. Ct. at 2067 n.26 (cleaned up). Courts must “take all relevant circumstances into account”

19 and “determine whether each particular position implicate[s] the fundamental purpose of the

20 exception.” Id. at 2067; see id. at 2064 (“[T]hese . . . are not inflexible requirements and may

21 have far less significance in some cases.”); see Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,

22 concurring) (“The term ‘minister’ is commonly used by many Protestant denominations to refer to

23 members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews,

24 Muslims, Hindus, or Buddhists. . . . [I]t would be a mistake if the term ‘minister’ or the concept

25 of ordination were viewed as central to the important issue of religious autonomy that is presented

26 in cases like this one. Instead, courts should focus on the function performed by persons who

27 work for religious bodies.”).

1 Zen Buddhism, both the formal practice and the work practice, “lie[s] at the very core of the

2 mission of” SF Zen Center. Guadalupe, 140 S. Ct. at 2064. And so, drawing all reasonable

3 inferences in Mr. Behrend’s favor, every reasonable trier of fact would be compelled to find his

4 position implicates the fundamental purpose of the ministerial exception. The Work Practice

5 Apprentice position was undisputedly a residential religious training program, and work practice

6 was undisputedly a part of that religious training. Work as part of learning to practice the faith

7 and work as part of training to lead the faith implicate the same fundamental purpose of the

8 exception. See id. at 2060 (describing purpose of protecting a religious institution’s “autonomy

9 with respect to internal management decisions that are essential to the institution’s central

10 mission”); see also Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 309 (4th

11 Cir. 2004) (“[Plaintiff] supervised and participated in religious ritual and worship. . . . [He]

12 arguably lacked independent authority to make some decisions regarding food preparation, but

13 there is no requirement that an individual have the final say on spiritual matters.” (cleaned up)).

14 Therefore, the ministerial exception protects SF Zen Center’s autonomy in deciding what kinds of

15 work practice are proper training in the faith.

16 Mr. Behrend’s reliance on the declaration of Seigen Johnson does not create a genuine

17 dispute as to whether Mr. Behrend trained and practiced in Soto Zen Buddhism as a Work Practice

18 Apprentice. Her after-the-fact opinion that she had been part of the Work Practice Apprentice

19 program and as part of that program did not receive any religious training is not relevant to Mr.

20 Behrend’s experience, or more precisely, SF Zen Center’s view of Mr. Behrend’s position.

21 Further, her declaration actually supports the finding that the Mr. Behrend resided at SF Zen

22 Center to practice and train in Soto Zen Buddhism. She observes SF Zen Center refers to

23 residents as “monks,” but that “several residents” would not refer to themselves as monks

24 “because that would imply a stronger relationship to practice than they actually had.” (Dkt. No.

25 67-4 at ¶ 3.) Ms. Johnson’s testimony confirms residents were practicing Soto Zen Buddhism,

26 some more seriously than others.

27 The Court’s conclusion that Mr. Behrend resided at SF Center to practice and train in Soto

1 faith does not establish religious training or leadership. See Palmer, 2021 WL 6201273, at *6

2 (“The Court does not credit Liberty’s argument that Palmer’s personal religious devotion and

3 experience somehow constitutes ‘informal qualification’ as a minister. The controlling cases

4 clearly indicate that what is important is formal religious training in preparation for a ministerial

5 role, not personal devotion.”); DeWeese-Boyd, 487 Mass. at 51 n.22 (“DeWeese-Boyd has made

6 several statements concerning the importance of her faith to her life and how it motivates her

7 personal choices, including her choice of profession and the manner in which she practices it. . . .

8 [W]e cannot, as the defendants suggest, rely on her professions as evidence that DeWeese-Boyd

9 was a minister. Her personal statements of faith are not equivalent to expressly holding herself out

10 as a minister, as Perich did in Hosanna-Tabor; as the defendants themselves testified, being a

11 Christian and being a ministerial employee are not the same.”); see also Guadalupe, 140 S. Ct. at

12 2068 (“Respondents go further astray in suggesting that an employee can never come within the

13 Hosanna-Tabor exception unless the employee is a ‘practicing’ member of the religion with which

14 the employer is associated.”). Here, the Court’s analysis is based on the importance of residential

15 practice and training of Soto Zen Buddhism, including work practice, to SF Zen Center and not

16 the importance of practicing Soto Zen Buddhism to Mr. Behrend in particular. The Court does not

17 conclude Mr. Behrend’s practice of the faith qualified him as a leader. Rather, it concludes the

18 undisputed importance of practicing and training in Soto Zen Buddhism to SF Zen Center

19 implicates the fundamental purpose of the ministerial exception.

20 Mr. Behrend insists that applying the First Amendment here is at the outer edges (indeed,

21 beyond the outer edges) of the ministerial exception. The Court disagrees. To the contrary, the

22 undisputed facts are closer to prohibited interference in a religious institution’s matters of faith and

23 doctrine than those involving the teachers in Hosanna-Tabor and Guadalupe. To illustrate,

24 consider what Mr. Behrend is asking a court or jury to do: rule, in effect, that SF Zen Center must

25 allow him to continue to practice and train in Soto Zen Buddhism as a resident at the Center. It is

26 difficult to imagine a more direct interference with a religious institution’s constitutional right to

27 decide matters of faith and doctrine than commanding it to continue to house and train a particular

1 Oe Ok

2 SF Zen Center has met its burden to establish the ministerial exception applies as a matter

3 of law. See Hosanna-Tabor, 565 U.S. at 195 n.4; Soremekun, 509 F.3d at 984. Accordingly, SF

4 || Zen Center is entitled to judgment as a matter of law.

5 CONCLUSION

6 SF Zen Center’s motion is GRANTED.

7 This Order disposes of Docket No. 63.

8 IT IS SO ORDERED.

9 Dated: February 14, 2023 ol)

10 me

JACQUELINE SCOTT CORLEY

I United States District Judge

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