[00:00:06] Speaker 04:
Your honors, may it please the court.

[00:00:07] Speaker 04:
My name is Jim Davey.

[00:00:08] Speaker 04:
I represent Alexander Barron.

[00:00:10] Speaker 04:
I'd like to reserve two minutes for rebuttal, please.

[00:00:14] Speaker 04:
Your honors, the purpose of the ministerial exception is to protect church autonomy.

[00:00:19] Speaker 04:
Churches must control their own doctrine and choose the people to convey it free of government interference.

[00:00:25] Speaker 04:
But because Alex Barron played no key role in directing religious doctrine or teaching the faith,

[00:00:31] Speaker 04:
And crucially, because the Zen Center rejected him when he asked to have such a role, the ministerial exception is not implicated here.

[00:00:39] Speaker 04:
Here, the district court erred because it acknowledged that work practice was not leadership or teaching, but still treated Mr. Barrand as a minister.

[00:00:48] Speaker 04:
This court should reverse for the case to proceed to full discovery.

[00:00:52] Speaker 03:
So this, I mean, it raises a good question of where the limits are on the ministerial exception.

[00:00:59] Speaker 03:
But there are cases out there, for example, that an organist for a church is a minister.

[00:01:08] Speaker 03:
There's cases that supporting staff, if you're supporting a minister, that would be part of the ministerial exception.

[00:01:17] Speaker 03:
We have the Supreme Court already weighing in that a teacher doesn't necessarily even have to be teaching

[00:01:22] Speaker 03:
a religious topic in a Catholic school or a religious school to be a minister.

[00:01:31] Speaker 03:
So how do we distinguish those cases if we were going to rule for your client here?

[00:01:36] Speaker 04:
Yeah, I think I have two answers to that.

[00:01:38] Speaker 04:
And the first is that I agree that the doctrine is sort of all over the place, in part because all of these questions, and the Supreme Court has said this, are deeply fact-intensive.

[00:01:46] Speaker 04:
And to your point about the Supreme Court, I'm assuming you're talking about

[00:01:50] Speaker 04:
Morrissey Barrow, where we're talking about a teacher, like a non-practicing.

[00:01:56] Speaker 03:
Well, even in Hosanna Tabor, I think it wasn't, I mean, there was some, I mean, it was a very small amount of religious exercise that was going on there.

[00:02:07] Speaker 04:
Yes, Your Honor.

[00:02:07] Speaker 04:
It was a small amount, but what I think was crucial was that, as the Supreme Court said, those teachers were conveying to very young people precepts of the faith over the course of, you know, even if it's a minor part of their day, they're conveying the faith, they're aiding in the faith formation of young people, which is the core religious

[00:02:28] Speaker 04:
mission of a place like that.

[00:02:30] Speaker 04:
And so I think that's different here.

[00:02:33] Speaker 04:
And I think when you talk about, I guess my other answer here when you talk about the organist, it sort of goes to the core, the religious, the difference here, I think, is that Mr. Barron was not ultimately, what he was doing was not ultimately key to the religious transmission.

[00:02:53] Speaker 04:
It was- Is it because he wasn't public facing?

[00:02:56] Speaker 04:
Is that the distinction you would be making here?

[00:02:58] Speaker 04:
I don't know that public facing is necessarily a key part of it.

[00:03:05] Speaker 04:
Again, I want to keep coming back to, as Morrissey Barrow instructs, we're doing, as Justice Alito said in Hosanna Tabor and the Concurrence, and then it sort of becomes the law in Morrissey Barrow, you're ultimately conducting a very functional analysis into what he actually did.

[00:03:20] Speaker 04:
So I think it's worth talking about what he was doing and what he wasn't doing.

[00:03:24] Speaker 03:
And he was washing dishes.

[00:03:26] Speaker 03:
Yeah.

[00:03:27] Speaker 04:
He was initially, you know, he was cooking and serving, he was conducting check-ins, he was taking payments, washing sheets.

[00:03:36] Speaker 04:
you know, doing laundry, chopping vegetables, basic kitchen tasks, and you know, that's all.

[00:03:40] Speaker 03:
What if the religious view was, you know, you know, we need healthy food that that is part of our religion, we've got to eat healthy.

[00:03:49] Speaker 03:
And so why wouldn't that be a religious task?

[00:03:53] Speaker 03:
I mean, it's not inherently true that cutting up vegetables and even cleaning would not be or would always not be a religious activity.

[00:04:06] Speaker 04:
Yeah, so I don't actually think it matters whether the cutting vegetables is an inherently religious task or not.

[00:04:13] Speaker 04:
I think for purposes of this analysis, it doesn't necessarily matter whether it does or it doesn't.

[00:04:18] Speaker 04:
The problem is that if it is, and that merely doing all of those acts is furthering some very ancillary thing that's not

[00:04:27] Speaker 04:
conveying doctrine, teaching, all of that.

[00:04:29] Speaker 00:
But I guess here's my question.

[00:04:31] Speaker 00:
I don't know that it's ancillary because as the Zen Center posits or puts forward, the work practice is a central component of the Buddhist practice of residence there.

[00:04:45] Speaker 00:
And so, you know, I was struck by the briefing talking about him having to perform menial tasks

[00:04:52] Speaker 00:
and whether we as a court could be able to wade into whether this is menial or central to the religion, isn't that exactly the sort of entanglement that we would want to avoid when we're thinking about the rubric of the ministerial exception?

[00:05:09] Speaker 04:
So I'm not sure whether their entanglement is obviously all over this case, but I guess my answer to that question is to look at not only what he was doing but also what he was not doing and what the Zen Center explicitly told him he could not do.

[00:05:24] Speaker 04:
That's what he was doing.

[00:05:25] Speaker 04:
What he was not doing was he was not a priest, he was not a teacher, he was never asked to do that or offered to do that.

[00:05:34] Speaker 04:
He was not a senior student.

[00:05:36] Speaker 04:
He never gave a Dharma talk.

[00:05:38] Speaker 04:
He was never recognized as a shoe so or a head student.

[00:05:41] Speaker 04:
He was never offered a staff position as others were offered within a month.

[00:05:45] Speaker 04:
And when he wanted to pursue teaching explicitly, and this is that you are 37.

[00:05:50] Speaker 04:
He was rejected by the Zen Center.

[00:05:53] Speaker 03:
Well, yeah, but that seems an odd way to define whether something is ministerial as to whether further ministerial tasks are denied.

[00:06:02] Speaker 03:
Like, you could have a whole range of ministerial tasks, and just because you can do some of the basic ones and they say, no, you can't do the more advanced ones, I don't know why that would mean inherently that the more basic ones aren't ministerial.

[00:06:18] Speaker 04:
I think that, again, from this very functional analysis, and you're looking at what he was doing and what he was not doing, there were all of these people at the Zen Center who were doing what ultimately, at the end of the day, at bottom, as Morrissey Barrow says, involves conveying the faith, teaching others, directing the doctrine, and what he was doing was not any of those things.

[00:06:40] Speaker 02:
I mean, let's say there was a religion, and the one tenet of this religion is that you

[00:06:47] Speaker 02:
need to be amazingly good at washing dishes, right?

[00:06:52] Speaker 02:
And have peace while washing dishes, right?

[00:06:55] Speaker 02:
And so you have this like little special thing that only the very best can get into this special program and they wash dishes and people come and they stand above them and watch how good they are at washing dishes and having this peace while they wash dishes.

[00:07:09] Speaker 02:
that's not leaderships on any of those things are saying but it is the the in my hypothetical it is the central thing that that religion exists to do i don't understand how that little school of fifteen people

[00:07:21] Speaker 02:
in the Himalayas somewhere would not fall within this ministerial exception.

[00:07:29] Speaker 02:
And you understand where my hypothetical is going.

[00:07:31] Speaker 02:
They're not saying that's the only thing this sin exists for, but they're saying it is one of the key things that exists for us to bring this peace or whatever, I'm sure I'm using the wrong word, into work.

[00:07:42] Speaker 02:
And that's what these people do.

[00:07:44] Speaker 02:
And if we accept your argument,

[00:07:46] Speaker 02:
then we basically say, and this is the most powerful thing I thought in their brief, we say that whole, what do you call it, the monastery, whatever, that they have no more control over the people they can admit into that program.

[00:07:59] Speaker 04:
Well, so I would disagree with that, but I want to answer your sort of hypothetical with the obvious reverse, right, which is that if

[00:08:07] Speaker 04:
What we're ultimately talking about here is religious practice.

[00:08:13] Speaker 02:
And the problem, I think, with that... Well, that's why I styled my hot potato wait.

[00:08:17] Speaker 02:
Let's say, remember in this religion, washing dishes with peace is the... And so they have millions of people washing dishes in peace throughout the world.

[00:08:26] Speaker 02:
But the very best, the ones that want to dedicate their life to washing dishes in peace and being an example to others of how to why, and growing better at why, come to this little monastery place and they wash the dishes.

[00:08:36] Speaker 02:
in peace there.

[00:08:38] Speaker 02:
So there's a difference, right?

[00:08:39] Speaker 04:
No, no, sorry.

[00:08:40] Speaker 04:
I agree with you, Your Honor.

[00:08:41] Speaker 04:
And I think what I'm getting at is that in your hypothetical, and I think it's useful to look at that hypothetical in reference to the, again, certainly not an exhaustive checklist, but the instructive Hosanna-Tabor analysis, right?

[00:08:55] Speaker 04:
If you look at those people are all being held out as identified by the religion, they're holding themselves out in that particular way, as

[00:09:04] Speaker 02:
core of imposing on on a religion like kind of a western sort of view that like these people have to have a be in a hierarchy somewhere whereas you know it could be that the religion actually

[00:09:17] Speaker 02:
wants to have these people, like that's part of the point is you go off and you don't, you know, take away my standing, other people standing over watching because that would distract and that would be prideful or something like that.

[00:09:29] Speaker 02:
I still don't see why those wouldn't be, I mean what does set them apart from the millions of people out there trying to practice this religion by washing their dishes in their daily life is these people are going off and they're in like a monastery for lack of a better word.

[00:09:44] Speaker 02:
How does that, that seems like a distinction

[00:09:48] Speaker 02:
that keeps us from interfering and doesn't make it so that every practitioner of the religion is a minister.

[00:09:54] Speaker 02:
Falls within the ministerial exception.

[00:09:55] Speaker 04:
To be clear, you know, for the purposes of this Eastern-Western distinction, I'm very sensitive to that.

[00:10:02] Speaker 04:
And I think that one of the reasons that that's easy here is because I don't have to define a hierarchy.

[00:10:08] Speaker 04:
The Zen Center did that.

[00:10:09] Speaker 04:
They have this very, you know, very extensive hierarchy.

[00:10:13] Speaker 04:
They have clearly defined roles.

[00:10:14] Speaker 04:
They have ordained priests, ordained laypeople.

[00:10:17] Speaker 04:
They have shusos.

[00:10:18] Speaker 04:
all of these, they have abbots, they have all of these people in clearly defined roles.

[00:10:23] Speaker 00:
To circle back to a point that Judge Nelson was making, it's almost like Alcazar where this person is a seminarian or someone on the way to obtaining a ministerial role, but isn't quite there yet.

[00:10:39] Speaker 00:
And so they don't have a leadership position, they may not be teaching that much, but nevertheless, they're in this unique environment in which they're on that path.

[00:10:47] Speaker 00:
And the question is whether the Zen Center has a right to define the terms of that doctrine and practice that it is admitting people in there to do.

[00:10:57] Speaker 00:
And they are saying that the work practice is a central component of that.

[00:11:02] Speaker 00:
So I'm not sure that there, I sense a bit of rigidity in saying

[00:11:08] Speaker 00:
leadership or teaching or something public facing, but not if you're lower on the totem pole and you haven't achieved that end yet.

[00:11:19] Speaker 00:
Aren't we required to be more flexible when we think about this test?

[00:11:23] Speaker 04:
Well, regardless of the flexibility required, I would disagree actually with your characterization a little bit in that the district court itself recognized that they had a path to leadership and a path to teaching and a path to being ordained.

[00:11:38] Speaker 04:
And he was not on that path.

[00:11:39] Speaker 04:
And that's at ER 11 in the district court opinion.

[00:11:42] Speaker 04:
And so I think that even if you look at this idea that there is a path and that the Zem Center should have some control over who's on that path, which I don't dispute.

[00:11:53] Speaker 04:
It's also just as clear in the record that Mr. Barron was not on that path.

[00:11:58] Speaker 04:
And I think that's, again, I want to keep coming back to the fact that when he... The record's a little unclear.

[00:12:03] Speaker 02:
I know that's what you said, but it seems like...

[00:12:07] Speaker 02:
it seems like the record seems to support the idea that he was on that path because they decided they didn't want to put him on that path, right?

[00:12:14] Speaker 02:
It seems like he wanted to be on that path.

[00:12:15] Speaker 02:
I mean, in fact, I think you would acknowledge that.

[00:12:18] Speaker 02:
They didn't want to put him on that path.

[00:12:20] Speaker 04:
And that's exactly the point, Your Honor.

[00:12:21] Speaker 02:
I think that they're- But going back to what Judge Sanchez is saying, the whole point of something like this is to have a filtering mechanism, and you're kind of taking away the religious entity's ability to say,

[00:12:35] Speaker 02:
for whatever reason, a reason that hopefully we don't sit in judgment on, you know, we just don't think you should go further, or maybe that's not even the right word with this religion.

[00:12:43] Speaker 02:
We don't think that you should go into that role.

[00:12:46] Speaker 04:
I think that, again, if you look at all of the roles that are in, that were at play at the Zen Center, and you look at what he was doing, and the role that he was playing, what he was doing at the time that he was doing it was not ultimately one of these key roles that Morris Ebert talks about.

[00:13:04] Speaker 04:
And again, the point of my response to Judge Sanchez's question, and I see him at about two minutes, so I'll wrap this up and then I'll see you on rebuttal.

[00:13:13] Speaker 04:
If you look at, as even the district court acknowledged, this path to leadership and teaching and conveying the faith exists.

[00:13:20] Speaker 04:
He wasn't doing it and was not on a path to doing it and was rejected from doing that.

[00:13:25] Speaker 04:
And I think when you come back to that, it becomes difficult to apply the ministerial exception to Mr. Barrand.

[00:13:32] Speaker 04:
and not apply it to essentially any practitioner of Zen Buddhism who would be doing these things that are ultimately practice of Zen.

[00:13:40] Speaker 04:
He's a practitioner, he was not playing a key role, and I think that's the distinction here that's important.

[00:13:47] Speaker 04:
But I'll see you on the bottle.

[00:13:48] Speaker 03:
Thank you.

[00:13:57] Speaker 01:
Good morning, Your Honors.

[00:13:59] Speaker 01:
If it pleases the Court, Eileen Ridley, Foley and Lardner on behalf of Zen Center, SF Zen Center.

[00:14:05] Speaker 01:
I think it's important to start with the idea of what the key role is and for whatever reason it seems to be lost.

[00:14:11] Speaker 01:
His key role was he was a work practice apprentice.

[00:14:15] Speaker 01:
This is not something that any

[00:14:17] Speaker 01:
Buddhist practitioner would be you literally have to apply to become a work practice apprentice.

[00:14:24] Speaker 01:
And there's weight in the name.

[00:14:27] Speaker 01:
It is a work practice apprentice.

[00:14:30] Speaker 01:
And as S.F.

[00:14:33] Speaker 01:
Zen Center has established both with regard to its resident policies and its work practice policies,

[00:14:39] Speaker 01:
The idea of work practice is core to its beliefs, core to its practice.

[00:14:47] Speaker 01:
I will note that it acknowledges that communal work practice is an integral and individual part of Zen training and spiritual practice offered at SF Zen Center.

[00:15:01] Speaker 01:
The terms work practice and work as used in these guidelines incorporate these fundamental principles.

[00:15:08] Speaker 03:
Let me ask you this.

[00:15:10] Speaker 03:
Is it key to the individual, or is it key to the institution?

[00:15:15] Speaker 01:
It's key to the practice of the religion, and so key to the institution.

[00:15:21] Speaker 01:
In other words, if one is in the work practice apprenticeship program, you are literally in a study of Zen Buddhism.

[00:15:31] Speaker 01:
It is the one path to become a priest, although not all become priests.

[00:15:36] Speaker 01:
It is the method by which it is determined in the sense of the student and the teacher and the institution as to whether that individual should proceed along the path towards Houston.

[00:15:50] Speaker 00:
Well, counsel, does it matter to counsel's point whether Mr. Barron was actually on the path to becoming a priest or something along those lines, or is it enough that he's at an early entry point on this possible path?

[00:16:05] Speaker 00:
Well, you know what?

[00:16:06] Speaker 00:
Well, to put it another way, we're at summary judgment.

[00:16:10] Speaker 00:
So why might that not be a tribal issue where there's a genuine dispute between the sides?

[00:16:16] Speaker 01:
It's not a genuine issue.

[00:16:17] Speaker 01:
It's the fact that he was at the early point, although I will note he also admits and acknowledges when he was doing applications to San Francisco Zen Center that he wanted to be a priest.

[00:16:29] Speaker 01:
So he acknowledged the importance of this program for that purpose.

[00:16:33] Speaker 01:
But he was early on the path.

[00:16:34] Speaker 01:
And keep in mind,

[00:16:36] Speaker 01:
Again, it's integral.

[00:16:38] Speaker 01:
The concept here is the program he applied for and was accepted and participated in is as a monk within a temple, a monastery.

[00:16:48] Speaker 01:
It is a 24-7 experience in the sense of not only is there formal practice in the sense of ceremonies and the like,

[00:16:56] Speaker 01:
But there's work practice, which by the way is very ritualized, has ceremonies while doing that work practice.

[00:17:02] Speaker 01:
So it's not just you sort of washing the dishes.

[00:17:05] Speaker 01:
There is prayer said during the time.

[00:17:07] Speaker 01:
There is a certain manner in which one washes the dishes.

[00:17:12] Speaker 01:
It is very formalized all through the day.

[00:17:16] Speaker 01:
And a public practicing Buddhist is not a monk within a monastery.

[00:17:24] Speaker 01:
Mr. Behrendt was and made the choice to be, and specifically to participate in a work practice apprenticeship program, and actually represented himself to be that apprentice.

[00:17:37] Speaker 00:
Are there other positions at the Zen Center that don't involve this work practice apprenticeship, but people may be volunteering and working there, but not being residents?

[00:17:46] Speaker 00:
I guess what I'm getting at is I'm trying to figure out if there's a limiting principle, if you can describe a limiting principle to what you're describing, because it might seem to encompass anyone that steps foot into the Zen Center.

[00:18:00] Speaker 00:
And I don't think you're arguing that, are you?

[00:18:03] Speaker 01:
It does not, no.

[00:18:04] Speaker 01:
You have to be in the work practice program.

[00:18:07] Speaker 01:
You have to apply and be accepted and be a resident, a actual resident in the program.

[00:18:13] Speaker 01:
At SF Zen Center, there are actual employees.

[00:18:17] Speaker 01:
They are doing, for example, accounting.

[00:18:20] Speaker 01:
They are not resident monks.

[00:18:22] Speaker 01:
They are not required to be Buddhist.

[00:18:24] Speaker 01:
They are employees.

[00:18:26] Speaker 01:
This is a resident monk.

[00:18:29] Speaker 01:
And as for the public,

[00:18:31] Speaker 01:
If an individual in the public.

[00:18:33] Speaker 03:
Let me ask you.

[00:18:34] Speaker 03:
So you would say those accountants are not ministers?

[00:18:37] Speaker 03:
Are non-ministers.

[00:18:39] Speaker 03:
Are non-ministers.

[00:18:40] Speaker 03:
And why is that?

[00:18:42] Speaker 03:
Because they're not performing a religious function?

[00:18:44] Speaker 01:
They are not performing a religious function, nor have they entered into the program, the work practice apprenticeship program.

[00:18:53] Speaker 03:
Yeah, I just wonder about that.

[00:18:55] Speaker 03:
And I guess what matters is what you say about it.

[00:18:57] Speaker 03:
But I could imagine another.

[00:19:00] Speaker 03:
I could imagine someone else coming in and saying, no, they are, because they're performing a service that allows our religious practice to be served, even though they're not performing a religious service.

[00:19:12] Speaker 03:
And I guess your point is, that's not the case we have before us.

[00:19:15] Speaker 01:
That's not the case we have before us, Your Honor.

[00:19:18] Speaker 01:
We have an individual who affirmatively knew about the work practice, because he was, at one point, a volunteer.

[00:19:25] Speaker 01:
There was a two week guest.

[00:19:28] Speaker 02:
Yeah, I guess, so that's what I'm, it's related to what this other discussion, but I'm trying to figure out how much it matters, like does it, does it matter that there are people in an organization or at least in a part of an organization that would not fall within the ministerial exception, you know, because we are trying to figure out line drawing, right, and in these cases are a little challenging because they, but

[00:19:52] Speaker 02:
I'm trying to figure out, like a monastery, does a monastery of sorts have to have people there that would not fall within the ministry?

[00:20:02] Speaker 02:
Because you can imagine a hypothetical where you have, to use something that maybe Western folks would like, a monastery, a Catholic monastery that has three priests that serve in it.

[00:20:12] Speaker 02:
And that's all there is, and they all, you know, I don't know that it would matter so much whether or not there's nobody else, there's nobody there that wouldn't fall within the ministerial exception.

[00:20:23] Speaker 02:
Do you have any thoughts on, does there have to be somebody within an entity that doesn't fall within the ministerial exception?

[00:20:29] Speaker 02:
Do we have to draw the line that way, or does it, I guess to go back, maybe it just doesn't, it isn't implicated in this case, so.

[00:20:36] Speaker 01:
My point was to answer a question.

[00:20:39] Speaker 01:
But to answer your question, no, it doesn't matter.

[00:20:43] Speaker 01:
The test is not, hey, do you have a group of people who are really practitioners and monks and others who are not.

[00:20:49] Speaker 01:
That's not the test here.

[00:20:50] Speaker 01:
The test that we're talking about is, was what Mr. Barron was doing in the totality of the circumstances part of the fundamental precepts within the religion?

[00:21:02] Speaker 01:
Here, it clearly was.

[00:21:03] Speaker 01:
He chose to become a work practice apprentice.

[00:21:07] Speaker 01:
Work practice is fundamental to the religion and its practice.

[00:21:13] Speaker 01:
And he was a student within a program, and the only program by which one might become a priest.

[00:21:19] Speaker 01:
Not that they have to be, but that is something different than, say, a public practitioner who might come in, for example, for a meditation.

[00:21:28] Speaker 01:
If somebody just was a Buddhist and came in for just a moment of meditation,

[00:21:33] Speaker 02:
That does not indicate that they— So I assume that there are people who enter into this work practitioner apprentice program who do not have an intention of becoming a priest at all.

[00:21:50] Speaker 02:
My understanding was that some go through this to become priests.

[00:21:55] Speaker 02:
Some want to, but get denied that opportunity.

[00:21:58] Speaker 02:
But are there some that—

[00:22:00] Speaker 02:
that would do it just without wanting to become a priest but are doing the program?

[00:22:09] Speaker 01:
It's a correct question because I think the struggle is sort of a comparison of the Western sort of priesthood where we know people go to seminaries and become priests.

[00:22:17] Speaker 01:
That's not exactly the model of Zen Buddhism.

[00:22:20] Speaker 01:
So yes, there could be somebody who would be a participant who would not necessarily intend to be a priest, but they do intend to

[00:22:30] Speaker 01:
study Buddhism to minister in the sense of to present themselves as examples of the religion.

[00:22:40] Speaker 02:
That's how I understood your argument.

[00:22:41] Speaker 02:
I just want to make sure that your argument does not turn on the fact that was he trying to become a priest or not.

[00:22:49] Speaker 02:
It sounds like he was.

[00:22:51] Speaker 02:
that could be a disputed issue of fact.

[00:22:54] Speaker 02:
I think I'm hearing you this morning that your argument doesn't turn on.

[00:23:00] Speaker 02:
If he had said, I just want to do this work practitioner thing for two years to really focus on the—I won't do him justice, but the lines that you explained about those central tenets of the

[00:23:12] Speaker 02:
or some central tenants of this faith.

[00:23:17] Speaker 02:
So what is your position on that?

[00:23:19] Speaker 01:
That is correct.

[00:23:20] Speaker 01:
You are correct.

[00:23:21] Speaker 01:
And I'll note that, just to be clear, he in fact did have instances where he was leading in the practice.

[00:23:31] Speaker 01:
The Doan Rio position

[00:23:34] Speaker 01:
is actually one who leads the ceremonial aspects with regard to the meditation.

[00:23:40] Speaker 01:
It is not something that somebody in the public would do.

[00:23:43] Speaker 01:
You must get trained for it, and it is considered a high honor.

[00:23:47] Speaker 01:
So to suggest that he was merely a worker is absolutely not what, in fact, was the case under the totality of the circumstances.

[00:23:56] Speaker 00:
Do you agree with counsel's characterization that we should look at this in terms of some type of key role?

[00:24:01] Speaker 00:
So it doesn't have to be a leader necessarily, but leader and teacher are some of the cases that have been established.

[00:24:08] Speaker 00:
And is that the right formulation in your mind, the thinking of a key role?

[00:24:13] Speaker 01:
I think our lady of Guadalupe notes that a key role implicates the fundamental purpose of the ministerial exception, meaning that whatever role the person has, it's not necessarily a titled role or a specific titled role, but that is implicating the core premise of the religious precepts.

[00:24:33] Speaker 01:
And here we have somebody who is a work practice apprentice, is practicing and exhibiting the concept of work practice.

[00:24:42] Speaker 01:
And as a consequence, as a WPA, I would argue that is in fact a key role.

[00:24:48] Speaker 01:
I would argue it's more of a key role than, with no offense, a teacher who might not even be teaching a religious course.

[00:24:55] Speaker 01:
This is a core tenet of the religion and its practice, and so is in fact a key role.

[00:25:00] Speaker 03:
So post Morrissey Beirut, have you looked at some of the other cases out there that have defined ministers for purposes of ministerial exception?

[00:25:12] Speaker 03:
And could you give some examples of cases where the courts have said this is not a minister?

[00:25:18] Speaker 03:
Or have most courts been finding ministers?

[00:25:21] Speaker 01:
Most courts that I've seen have been finding ministers.

[00:25:26] Speaker 01:
your honor had noted, fairly broad.

[00:25:28] Speaker 01:
It goes from organists, right, to teachers and the like.

[00:25:32] Speaker 01:
And it really goes to issues regarding are the court tenants being advanced by the activity what the person is actually doing.

[00:25:42] Speaker 03:
Where are the limits that other courts have found it?

[00:25:44] Speaker 03:
Or are they just, I mean, because one way to look at this would just be this is out of the court's hands.

[00:25:49] Speaker 03:
If the organization is a religious organization and it says,

[00:25:55] Speaker 03:
this is a minister, do we, I mean, Justice Thomas has sort of taken the view that game over.

[00:26:02] Speaker 03:
That's not the law, but I'm wondering if that's sort of, we're backing into that as the law, just because I can understand why district courts might be a little hesitant to find non-ministers in light of both the decisions that have come out from the Supreme Court.

[00:26:20] Speaker 01:
I think that's right.

[00:26:21] Speaker 01:
I think there's a real hesitancy, and appropriately so, about indicating to a religion who they can and cannot determine are ministers.

[00:26:28] Speaker 01:
I think that goes right to the issue of a violation of the First Amendment and the religious causes there.

[00:26:34] Speaker 03:
And I think it's a... Just to just briefly, if that's true, then what protections are there?

[00:26:40] Speaker 03:
for employees or workers in a religion, or the rule is, you know, buyer beware.

[00:26:49] Speaker 03:
If you're going to take on this position in a religious organization, you are subject to their rules and you're not going to get any protections from, you know, federal employment laws.

[00:27:02] Speaker 01:
I think it is buyer beware.

[00:27:04] Speaker 01:
I think in this instance, it was very clear

[00:27:07] Speaker 01:
what the religious concepts were and what the position would entail.

[00:27:13] Speaker 01:
And it is a buyer beware situation, because the courts can't determine what's appropriate and what is not.

[00:27:19] Speaker 00:
And I think it's important, and I... I mean, as Judge Nelson just pointed out, it's in Justice Thomas's concurrences that having garnered a majority in two Supreme Court opinions, that if a religious organization says it's a minister, a game over,

[00:27:34] Speaker 00:
I think it seems from my reading that the, similar to yours, that it's whether that employee performs some sort of a central function in the religious organization's mission.

[00:27:47] Speaker 00:
And so you could, one could in theory, start to distinguish between perhaps a lay accountant at a Zen center versus someone else who's in a work practice.

[00:27:56] Speaker 00:
I don't know if this is the case that needs to resolve that issue.

[00:27:59] Speaker 00:
There may be a way to decipher who's a minister outside of just letting the religious organization say carte blanche that that's what it is.

[00:28:07] Speaker 01:
I think you're probably right, although I think the religious organization is due considerable deference in how it defines who and who is not a minister.

[00:28:19] Speaker 01:
And I think part of the struggle is, and I think the Supreme Court has noted,

[00:28:24] Speaker 01:
This is not a rigid sort of tick off the box, OK, there you are.

[00:28:28] Speaker 01:
You're a minister.

[00:28:29] Speaker 01:
Because there's such a diversity of religious practice within the United States, there has to have some flexibility for understanding that maybe a court may not be as familiar with

[00:28:42] Speaker 01:
has leeway to determine who they want to be ministers and who they want to be examples of their faith.

[00:28:49] Speaker 00:
But you would agree at this point, the Supreme Court, the majority has said there are different factors to consider.

[00:28:56] Speaker 00:
Courts go and consider them.

[00:28:57] Speaker 00:
No factors to consider.

[00:28:59] Speaker 00:
It's whatever the religious institution says.

[00:29:02] Speaker 01:
Yes, I would agree with that.

[00:29:04] Speaker 01:
And I would say even under the factors, Mr. Barron would be, in fact, a minister, and the ministeral exception would apply.

[00:29:11] Speaker 01:
So we would ask the court to affirm.

[00:29:14] Speaker 03:
Thank you.

[00:29:15] Speaker 03:
Thank you.

[00:29:15] Speaker 03:
We'll hear a rebuttal.

[00:29:20] Speaker 03:
Not to deter you, and you can proceed, but could you give some examples of courts

[00:29:25] Speaker 03:
where courts have said a certain position is not a minister post Morris A. Beirut, because they'd be interested in kind of hearing how those fit into this case.

[00:29:35] Speaker 04:
Yeah, so I do want to make sure to also, yeah, but I'll come back to that.

[00:29:41] Speaker 04:
I just want to make three points very quickly.

[00:29:42] Speaker 04:
The first is I want to underscore the dispute of fact about the nature of whether he was training to be a minister or where he was on that path.

[00:29:50] Speaker 04:
There's a deponent who testified, and the direct quote is that there was a different set of gates that he did not go through, so at the very least there's dispute about whether it's this

[00:29:59] Speaker 04:
single path or a different path, and I think he was not on the path to become a priest.

[00:30:07] Speaker 04:
That's number one.

[00:30:08] Speaker 04:
Number two is, you know, I think I want to come back to Judge Nelson's question about this buyer beware thing.

[00:30:14] Speaker 04:
And, you know, first, I think as you acknowledge, that's not currently the law.

[00:30:18] Speaker 04:
It has not garnered a majority view.

[00:30:20] Speaker 04:
And, you know, I think the problem with that is that

[00:30:25] Speaker 04:
You sort of struck this balance between nondiscrimination law and the importance in the law of nondiscrimination law and protections for workers and the ministerial exception.

[00:30:35] Speaker 04:
And the purpose of the ministerial exception, as Hosanna Tabor says, freedom to select clergy.

[00:30:39] Speaker 04:
It's part of free exercise.

[00:30:41] Speaker 04:
And it's because ministers manage internal governance, personify beliefs, shape faith in missions, make other appointments to do the same.

[00:30:48] Speaker 04:
And I think when you start to get to this buyer beware situation, it just sweeps.

[00:30:54] Speaker 03:
Religious nurses at religious hospitals, I think would fall under under that and I think that's that's of course too far Yeah, and not to belabor the point, but I mean the question is, you know Should should and maybe they should I don't know the answer to that It sounds like we don't need to address that here, but that's why maybe you can come back to my question Are there cases because

[00:31:16] Speaker 03:
I understand that Justice Thomas's view is not the law, but I want to know where courts are grappling with this, saying, OK, this is the bridge too far.

[00:31:25] Speaker 04:
Yeah, I guess the two cases I would point you to are the sort of Dewey's Boyd in Massachusetts and the Woods case in the Supreme Court of Washington.

[00:31:33] Speaker 04:
And the one thing, a lot of the other cases that people have talked about where the courts post-Morsi Beirut have found minister,

[00:31:42] Speaker 04:
Demkovic in the Seventh Circuit involved an avowed minister.

[00:31:46] Speaker 04:
Starkey, which was in the Seventh Circuit also, was a director of guidance at a religious school.

[00:31:52] Speaker 04:
I think if you look at the cases, there just have not been a ton of cases that present.

[00:32:02] Speaker 04:
These are all very fact intensive.

[00:32:03] Speaker 04:
There have not been a ton of cases post-Morrissey Bayer that present these sort of in the gray situations like I think we have here, which is, I think, one of the reasons that it's

[00:32:12] Speaker 04:
you know, hard.

[00:32:14] Speaker 04:
The last thing I'll say, because I recognize that I'm a little bit over, is, you know, the other thing I just want to point out is that my colleague, you know, started by talking about the title.

[00:32:23] Speaker 04:
She mentioned, you know, holding himself out as public practice.

[00:32:26] Speaker 04:
You know, he didn't do, and I want to emphasize, number one, that he didn't do anything as a work practice apprentice that you couldn't do coming off the street.

[00:32:34] Speaker 04:
And I know that in part because he did all of those things as a volunteer himself.

[00:32:38] Speaker 04:
before he was a work practice apprentice.

[00:32:40] Speaker 04:
That was at ER 40 to 41.

[00:32:42] Speaker 04:
And even the things that he did in the ceremonies were things that volunteers did coming off the street.

[00:32:48] Speaker 04:
That's at ER 87.

[00:32:50] Speaker 04:
And so again, if you look at whether it's his title, how he was holding himself out, these other Hosanna-Tabor factors, again, they're not a checklist, but I think they all point toward him not being a minister here.

[00:33:00] Speaker 04:
And so for all of those reasons, I would urge you to reverse.

[00:33:04] Speaker 02:
what word if mister one if you got everything what what what do you want for him what do you want

[00:33:10] Speaker 04:
So the district court appointed—he was originally pro se—the district court appointed counsel only into the limited question of the ministerial exception.

[00:33:20] Speaker 02:
And so what would happen on remand is that the court would, you know, remand for— I mean, like, if he won his whole case, what's he asking for?

[00:33:28] Speaker 02:
Is he asking for money?

[00:33:30] Speaker 02:
Yeah.

[00:33:30] Speaker 02:
Money?

[00:33:31] Speaker 02:
He's not asking to be put back in there as a—

[00:33:34] Speaker 04:
I don't think anyone thinks that would be a good idea, Your Honor.

[00:33:38] Speaker 04:
But no, to the posture point, I'll say this, too, and then I'll sit down, because I really am over.

[00:33:43] Speaker 04:
But there was limited discovery and limited briefing only on the question of the ministerial exception.

[00:33:50] Speaker 04:
And so the case would go to discovery, and the Zen Center would then have, they asserted, 16 affirmative defenses.

[00:33:54] Speaker 04:
They can always defend on the merits.

[00:33:56] Speaker 04:
And so the last thing I'll say, and then I'll sit down, is the ministerial exception is a very strong defense that's

[00:34:04] Speaker 04:
understandably limited in scope it does not necessarily resolve this case entirely the Zen Center can still win on any any number of other bases okay thank you thank you thank you to both counsel actually in this case and the case is now submitted