The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXANDER BEHREND, No. 23-15399
Plaintiff-Appellant, D.C. No. 3:21-cv-
01905-JSC
v.
SAN FRANCISCO ZEN CENTER, OPINION
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jacqueline S. Corley, District Judge, Presiding
Argued and Submitted April 3, 2024
Pasadena, California
Filed July 17, 2024
Before: Ryan D. Nelson, Lawrence VanDyke, and Gabriel
P. Sanchez, Circuit Judges.
Opinion by Judge VanDyke
2 BEHREND V. SAN FRANCISCO ZEN CENTER, INC.
SUMMARY *
Employment Discrimination / Ministerial Exception
Affirming the district court’s grant of summary
judgment to San Francisco Zen Center in an employment
discrimination action under the Americans with Disabilities
Act, the panel held that plaintiff Alexander Behrend’s role
as a “Work Practice Apprentice” fell within the First
Amendment’s ministerial exception.
The ministerial exception exempts a church’s
employment relationship with its ministers from the
application of employment statutes such as the Americans
with Disabilities Act. The panel held that it was required to
take all relevant circumstances into account and to determine
whether Behrend’s position implicated the fundamental
purpose of the exception, which is to ensure the
independence of religious institutions in matters of faith
doctrine and church government. The panel concluded that,
even though Behrend performed mostly menial work, the
work itself was an essential component of Zen training, and
he therefore played a role in carrying out the Center’s
mission. The panel concluded that precedent foreclosed the
view that only teachers and faith leaders qualify for the
ministerial exception.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BEHREND V. SAN FRANCISCO ZEN CENTER, INC. 3
COUNSEL
Jim Davy (argued), All Rise Trial & Appellate, Philadelphia,
Pennsylvania; Kyle Quackenbush, Girard Sharp LLP, San
Francisco, California; for Plaintiff-Appellant.
Eileen R. Ridley (argued) and Evan L. Hamling, Foley &
Lardner LLP, San Francisco, California; Sara A. Levine
Abarbanel, Foley & Lardner LLP, San Diego, California; for
Defendant-Appellee.
OPINION
VANDYKE, Circuit Judge:
The ministerial exception protects the “freedom of a
religious organization to select its ministers.” Hosanna-
Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565
U.S. 171, 188 (2012). Alexander Behrend, who lived and
worked at San Francisco Zen Center (the Center) as a Work
Practice Apprentice (WPA), argues that he was not a
minister. But the exception broadly ensures that religious
organizations have the freedom to choose “who will preach
their beliefs, teach their faith, and carry out their mission.”
Id. at 196. Behrend’s role as a WPA clearly fits that broad
exception, so we affirm the district court’s grant of summary
judgment.
I.
The Center is the largest Sōtō Zen Buddhist temple in
North America. It was formed to “encourage the practice of
Zen Buddhism by operating one or more religious practice
facilities and educating the public about Zen Buddhism.”
4 BEHREND V. SAN FRANCISCO ZEN CENTER, INC.
Sōtō Zen Buddhism “involves bringing one’s practice
wholeheartedly into the present moment, into the normal
activity of one’s daily life.” “Work itself is an essential
component of Zen training and is indistinguishable from
other forms of practice.” The Center offers several “types of
programs for individuals interested in learning about and
training in Zen Buddhism,” including some programs for the
general public and some for individuals who reside at the
temple “full time … as monks.”
The Center operates three residential programs that build
on each other. First, an individual can be a “guest student”
who lives at the temple for two to six weeks. Second, an
individual can be a WPA for a two-to-three-year residency.
Third, an individual who completes a Work Practice
Apprenticeship can be staff at the temple as a continuation
of Zen training.
The Center explains that the WPA program is “the
launch and the foundation for [the apprentice’s] Zen
training.” An individual can apply to be a WPA after
completing at least two weeks as a guest student. “WPAs
follow a strict practice schedule of formal and work
practice.” Formal practice includes morning and evening
meditations and services, soji (temple cleanings), dharma
talks, classes, and a range of other events. Work practice
includes things like cooking, dishwashing, cleaning, and
“doan ryo ceremonial tasks ‘which support the formal
practice, such as ringing bells, cleaning altars, and watching
the door during zazen meditations.’”
Alexander Behrend became involved with the Center in
2014 after he was in a car accident that left him with physical
disabilities and PTSD. Behrend initially volunteered with
the Center’s food outreach program, and then in 2015 he
BEHREND V. SAN FRANCISCO ZEN CENTER, INC. 5
began attending meditations a few times a week and
participating in the “Saturday sangha,” a group of
nonresidents who volunteered and listened to a dharma talk
(a talk about the precepts of the faith). He initially was not
interested in adopting a new religion, but he eventually
“considered himself a practicing Zen Buddhist.”
Following his car accident, Behrend was unable to
remain in his prior employment and therefore unable to
afford his apartment. In 2016, he spoke with the Center’s
head of practice because he was given a one-month notice of
losing his housing. He then applied and was accepted as a
guest student in November 2016. In January 2017, he was
accepted as a WPA, where he received room and board at
the center and a small stipend.
Behrend’s schedule as a WPA included meditation,
lunch with other students, dharma talks, and a range of work
duties. His work duties began in guest services, where he
checked guests in, prepared guest rooms and conference
spaces, cleaned, answered guests’ questions, and began each
day praying with the guest services team. He then worked
in the kitchen cooking and washing dishes, and again spent
a few minutes each morning in front of an altar with the rest
of the crew. Finally, Behrend was assigned to the
maintenance crew in September 2018, but that work
exacerbated his PTSD symptoms. Behrend sought
accommodations, including moving off the maintenance
crew, but eventually the Center “made a decision to end [his]
participation in the Program.”
Behrend sued for disability discrimination under the
Americans with Disabilities Act (ADA) in the Northern
District of California, and the Center moved for summary
judgment on its affirmative defense under the First
6 BEHREND V. SAN FRANCISCO ZEN CENTER, INC.
Amendment’s ministerial exception. The district court
granted the Center’s motion, determining that no party
disputed that the Center is a religious organization and the
undisputed facts established that Behrend fit within the
ministerial exception. Behrend now appeals, arguing that he
was not a minister because he performed mostly menial
work and did not have a “key role in making internal church
decisions and transmitting the faith to others.”
II.
“We review the grant of summary judgment de novo,
viewing the evidence and drawing all reasonable inferences
in the light most favorable to the non-moving party.”
Edwards v. Wells Fargo & Co., 606 F.3d 555, 557 (9th Cir.
2010).
III.
The ministerial “exception exempts a church’s
employment relationship with its ‘ministers’ from the
application of some employment statutes, even though the
statutes by their literal terms would apply.” Alcazar v. Corp.
of the Cath. Archbishop of Seattle, 627 F.3d 1288, 1290 (9th
Cir. 2010) (en banc). The exception is grounded in both
religion clauses of the First Amendment. “The
Establishment Clause prevents the Government from
appointing ministers, and the Free Exercise Clause prevents
it from interfering with the freedom of religious groups to
select their own.” Hosanna-Tabor, 565 U.S. at 184.
“Requiring a church to accept or retain an unwanted
minister, or punishing a church for failing to do so, …
interferes with the internal governance of the church,
depriving the church of control over the selection of those
who will personify its beliefs.” Id. at 188. So “[t]he
ministerial exception was recognized to preserve a church’s
BEHREND V. SAN FRANCISCO ZEN CENTER, INC. 7
independent authority” “to select, supervise, and if
necessary, remove a minister without interference by secular
authorities.” Our Lady of Guadalupe Sch. v. Morrissey-
Berru, 591 U.S. 732, 747 (2020).
Behrend argues on appeal that the exception only covers
those with “key roles” in preaching and transmitting the faith
to others. But precedent from our court and the Supreme
Court evinces a much broader rule that covers positions like
his.
A.
To start, there is no “rigid formula for deciding when an
employee qualifies as a minister.” Hosanna-Tabor, 565 U.S.
at 190. In Hosanna-Tabor, the Court considered whether the
exception applied to a “called” teacher at a Lutheran school
who was commissioned by the Church after completing a
special religious teaching program, and who taught
elementary school math, language arts, social studies, gym,
art, music, and religion to her students. Id. at 178. Even
though only a small part of her day was spent actually
teaching religion, the Court determined the exception
applied, considering “all the circumstances of her
employment.” Id. at 190. The Court found relevant that she
was given a formal title by the Church, that she held herself
out as a minister, and that she received the title after “a
formal process of commissioning.” Id. at 191. Also
important was that her job duties “reflected a role in
conveying the Church’s message and carrying out its
mission.” Id. at 192 (emphasis added).
In Our Lady of Guadalupe, the Court considered whether
the exception applied to two other elementary school
teachers, this time at Catholic schools. The teachers were
not “called” or commissioned by the Church and did not
8 BEHREND V. SAN FRANCISCO ZEN CENTER, INC.
receive extraordinary training from the Church, but they
were required to teach religion and pray with their students.
591 U.S. at 738–44. Again, the Court determined that the
exception applied, reemphasizing that there was no “rigid
formula” and instead “a variety of factors may be
important.” Id. at 750–51. The Court explained that the
considerations in Hosanna-Tabor were “relevant because of
their relationship to [the teacher’s] ‘role in conveying the
Church’s message and carrying out its mission,’ but the other
noted circumstances also shed light on that connection.” Id.
at 752 (internal citation omitted) (quoting Hosanna-Tabor,
565 U.S. at 192).
In analyzing whether someone falls within the
ministerial exception, our role as a court is to “take all
relevant circumstances into account and to determine
whether each particular position implicated the fundamental
purpose of the exception.” Id. at 758. That purpose is to
ensure “[t]he independence of religious institutions in
matters of ‘faith[,] … doctrine,’” and “church government.”
Id. at 746. While titles and learning requirements might be
relevant, “[w]hat matters, at bottom, is what an employee
does.” Id. at 753 (emphasis added). For schools like those
in Hosanna-Tabor and Our Lady of Guadalupe,
“[e]ducating and forming students in the [religious] faith lay
at the core of the mission,” and so the teachers “performed
vital religious duties.” Id. at 756 (emphasis added).
Here, the ministerial exception protects the Center’s
ability to determine who may serve in its WPA program.
While Behrend argues that he was not a minister because, as
a WPA, he performed mostly menial work, there is no
genuine dispute that “[w]ork itself is an essential component
of Zen training and is indistinguishable from other forms of
practice.” And a Work Practice Apprenticeship is “the
BEHREND V. SAN FRANCISCO ZEN CENTER, INC. 9
launch and the foundation for [the apprentice’s] Zen
training.” Behrend, as a WPA, surely had a “role in carrying
out [the Center’s] mission,” Hosanna-Tabor, 565 U.S. at
192; Our Lady of Guadalupe, 591 U.S. at 756–57.
B.
Behrend argues to the contrary that the ministerial
exception does not apply because his role as a WPA “was
not key to [the Center’s] ability to preach and transmit their
faith to others.” In his view, only teachers and leaders of the
faith qualify for the exception. But precedent clearly
forecloses that view, and for good reason.
First, in Our Lady of Guadalupe, the Supreme Court
specifically addressed whether such a role is required. 591
U.S. at 758 n.26. The Court explained that Hosanna-Tabor
“did not suggest that the exception it recognized applied only
to ‘leaders.’” Id. And while Our Lady of Guadalupe and
Hosanna-Tabor emphasized the plaintiffs’ roles as teachers
of their faith, that was because the plaintiffs in those cases
were teachers. It makes sense to emphasize an individual’s
role in sharing the message with another generation of
believers when that is the role she plays in the church. But
Hosanna-Tabor and Our Lady of Guadalupe did not do so at
the exclusion of those whose roles in a church may not
include overt teaching. See id.
Second, our own precedent does not reflect the
circumscribed view of the ministerial exception urged by
Behrend. See Alcazar, 627 F.3d at 1292. In Alcazar, we
applied the exception to a Catholic seminarian who, while
studying to become a priest, was not yet ordained and was
not teaching the faith to others. Instead, he “was hired [by a
church] to do maintenance of the church and also assisted
with Mass.” Id. We concluded that the exception applied
10 BEHREND V. SAN FRANCISCO ZEN CENTER, INC.
because he did this work “as part of his seminary training,”
even though he was not yet a teacher or a leader in that
church. Id.
Both our precedent and that of the Supreme Court
proscribe a rule by which only those who are high up in a
religious organization can qualify as ministers. This makes
sense: if leadership was a requirement, cloistered nuns or
monks might very well be disqualified. Our Lady of
Guadalupe, 591 U.S. at 758 n.26 (questioning whether under
that view a rabbi or clergy member who “spends almost all
of his or her time studying Scripture or theology and writing
instead of ministering” would fall outside the exception).
Since the purpose of the exception is to ensure a religious
organization’s independence in matters of faith, doctrine,
and government, surely it applies just as readily to those who
perform vital, but not necessarily hierarchical, functions.
Take, for example, a Catholic acolyte whose job is “to
serve at the altar and to assist the priest and deacon.” 1 Such
a person provides an extra set of hands to the priest or deacon
during Mass by “prepar[ing] the altar and the sacred vessels,
and … distribut[ing] the Eucharist to the faithful[.]” 2 He has
no role in leading the congregation and generally does not
speak at all during Mass, let alone teach. But surely the
ministerial exception allows a Catholic church to determine
for itself who can and cannot serve at the altar.
The Center’s WPA program, while perhaps not as
familiar to many, is no less protected. Behrend was tasked
1
See U.S. Conf. of Cath. Bishops, General Instruction of the Roman
Missal ch. 3, § 98 (2011), https://www.usccb.org/prayer-and-
worship/the-mass/general-instruction-of-the-roman-missal.
2
Id.
BEHREND V. SAN FRANCISCO ZEN CENTER, INC. 11
with performing maintenance, kitchen, and guest services.
But he was also responsible for assisting with rituals,
participating in meditations and services, cleaning the
temple, attending talks and classes, and performing doan ryo
ceremonial tasks like ringing bells and cleaning altars. He
lived and worked full time at the temple as a monk. While
Behrend may not have taught and was not a part of the
hierarchical leadership structure, he “performed vital
religious duties” as part of the Center’s WPA program. Our
Lady of Guadalupe, 591 U.S. at 756. 3 In short, were the
court to adopt a rule like the one Behrend suggests, we would
be “interfering with the freedom of religious groups to
select” who may or may not serve as a live-in monk.
Hosanna-Tabor, 565 U.S. at 184. The purpose of the
ministerial exception, to ensure “[t]he independence of
religious institutions” in matters of faith, doctrine, and
government would not be served by such a rule. Our Lady
of Guadalupe, 591 U.S. at 746.
IV.
The religion clauses of the First Amendment give the
Center the freedom “to select, supervise, and if necessary,
remove a minister without interference by secular
authorities.” Id. at 747. Because Behrend had a “role in …
carrying out [the Center’s] mission,” he qualifies for the
3
In light of the entanglement concerns that undergird the ministerial
exception, the Supreme Court has emphasized that “[a] religious
institution’s explanation of the role of such employees in the life of the
religion in question is important.” Our Lady of Guadalupe, 591 U.S. at
757. We therefore defer to the Center’s view that Behrend’s duties are,
by nature, religious. See generally Bollard v. California Province of the
Soc’y of Jesus, 196 F.3d 940, 947 (9th Cir. 1999) (a religion’s “choice
of representative” is “a decision to which we would simply defer without
further inquiry”).
12 BEHREND V. SAN FRANCISCO ZEN CENTER, INC.
ministerial exception. Hosanna-Tabor, 565 U.S. at 192; Our
Lady of Guadalupe, 591 U.S. at 752. Therefore, the district
court properly granted summary judgment based on the
ministerial exception.
AFFIRMED.