Herald Newsletter Vol 35-2 Spring 2024

Message from the New Episcopal Moderator

As someone who has worked to spread the message of professional management practices in the Church for many years, I am delighted to share this first message with you as the new Episcopal Moderator of the Diocesan Fiscal Management Conference. I am grateful to my predecessor, Bishop Knestout, for his contributions in this role, and to all of you for granting me the opportunity to serve.

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I am a native of Grand Island, Nebraska, and am the fourth of 10 children born to Robert and Patricia Golka. As you can imagine, I did not grow up with a lot of personal possessions. Whether it was sharing the one bathroom in our modest home or helping to care for younger siblings, being part of a large family taught me the art of sharing. There was only one day each year that was all about me – and that was my birthday. On that day, I received a special dinner, my favorite cake, my parents’ undivided attention, and best of all, presents. I loved that day.

Even though my parents cultivated a spirit of generosity in our home, it wasn’t until I spent a year on the Pine Ridge Reservation in South Dakota just after college that I really understood the meaning of stewardship. I was working with the Jesuit Volunteer Corps tutoring high school students, and one of them invited me to his 16th birthday party. But he didn’t call it a birthday party — he called it a birthday giveaway, and it was unlike anything I have ever experienced. This 16-year-old boy had carefully chosen a gift for each guest, and as he presented each one, he explained how he had picked it out especially for that person. Seeing my surprise, his grandmother explained the reason behind this tradition.

“When you give something away, you get to act like God,” she told me. “We also have another tradition; we believe that a gift has to be given at least eight times before it can rest with someone. We do that to remind us that nothing belongs to us. Everything is God’s gift. By the way, do you see

how happy my grandson is? When you act like God, you feel happy and fully alive.”

I left the reservation convinced that my life did not belong to me, and shortly after that I enrolled in seminary for the Diocese of Grand Island.

My brothers and sisters, the Eucharist is our participation in God’s “giveaway.” God has given us a gift, and it doesn’t belong to us. At Mass, we’re in heaven. Somehow God takes the little community of our parish church and lifts it all the way to the heavenly realm, with its angels, archangels, thrones and dominions. The altar is the place where heaven and earth kiss. But in our modern technological society, many of us don’t believe that anymore.

During this Eucharistic Revival, I invite you to meditate on this question: how do you steward that experience of heaven? As Catholics, we are sometimes experts at going through the motions. I implore you not to do that, but rather to speak to your heavenly Father face to face. He’s there waiting, enthralled by you. One of the main purposes of this Revival is to help us rediscover faith – faith that angels are constantly interacting with us and protecting us, and that our patron saints are always ready to intercede for us if we would just ask them.

Over the next couple of months, when the attention of Catholics around the world will be focused on the Eucharistic Congress taking place in July, let us think about ways that we all can be stewards of God’s mysteries, carrying them out into our daily lives, our families, our parishes and our communities.

Beyond that, be assured of my prayers for each of you personally and for your important work on behalf of the Lord’s Church. In the years to come, we will grow together and learn from one another on how best to manage the temporal affairs of the Catholic Church. I pray that we will also challenge one another to deeper holiness and sainthood, which is Christ’s hope for each of us. I look forward to greeting you in person this Fall at DFMC 2024 in San Diego.

Most Reverend James R. Golka Bishop of Colorado Springs

MOST REVEREND

JAMES R. GOLKA Bishop of Colorado Springs

BOARD OF DIRECTORS

Debbie Swisher President Diocese of Lexington

Jo Willhite Vice President Archdiocese of Portland in Oregon

Keith Parsons Treasurer Archdiocese of Denver

Shirley Pajanor Secretary Diocese of San Diego

Most Rev. James Golka Episcopal Moderator Diocese of Colorado Springs

John Matthew Knowles Executive Director

Mac Bryant Diocese of Manchester

Cecilia Colbert Diocese of Dallas

Tammy DiLorenzo Diocese of Biloxi

Michael McGee Diocese of Richmond

Sheila R. Murray Diocese of Greensburg

Carla Mills

Archdiocese of Kansas City in Kansas

Jorge Montenegro Diocese of San Bernardino Dn. Eric Simontis Diocese of San Jose

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• Mr. Attila Bardos, Chief Financial Officer, Oakland

• Ms. Mallory Bensik, Controller, Pueblo

• Mr. Greg Chatlain, Dir., of Administration and Finance, Saskatoon

• Ms. Maureen Fontenot, Chancellor / Dir. of Human Resources, Lafayette in LA

• Mr. Tom Geisler, Asst. Chief Financial Officer, Philadelphia

• Most Rev. James R. Golka, Bishop, Colorado Springs

• Ms. Darshane Hines, Senior Accountant, Charleston

• Mr. Randy Manchester, Internal Auditor, Manchester

• Ms. Deb McRae, Dir. of Finance, Property, and Admin., Peterborough

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DFMC MEMBER PROFILE: Brenda Cannella

Making Connections as Part of God’s Plan

by Jeanette Fast Redmond

BRENDA CANNELLA Chief Financial Officer for the Archdiocese of Denver

“I just knew the whole time that there is a God who is my Father who loves me. And while he may ask me to suffer for a particular purpose, he would never do anything to intentionally harm me,” says Brenda Cannella, Chief Financial Officer for the Archdiocese of Denver. “Knowing that just brought me so much peace.”

Brenda is describing her March 2023 diagnosis of a benign brain tumor, which was removed in September 2023. DFMC members who attended the 2023 conference in Denver may recall that Brenda attended just days afterward.

“It was not a miraculous recovery. I was just up and around,” she says, explaining that someone gave her a ride because she was local. “There were a couple of speakers that I just really wanted to hear.”

“The hardest part of the whole thing from a work perspective was from the date of diagnosis to my surgery,” she says. Her anxiety centered on not knowing what to expect from recovery. “My surgeon had told me it could be as short as four weeks. It could be as long as a year. I might have needed to go to occupational therapy or, you know, learn how to walk and talk and eat and all those things again.”

“None of that happened,” she says. “I ended up, by God’s grace, on the shorter end of the recovery period.”

“I experienced a tremendous amount of peace through this entire situation,” she says. “God gave me a grace through this to just be grateful for whatever suffering that he had for me, knowing that suffering would be for a purpose, that everything in our lives is for our sanctification.”

She had help from both her heavenly and earthly connections.

“Within just hours of the diagnosis, God brought a few saints to mind, a blessed and a few saints that were my friends through the whole process,” she says.

These included Servant of God Michelle Duppong, who passed away from cancer in 2015 and whose cause for canonization was opened recently. Brenda also mentions Blessed Chiara Badano, who died of bone cancer in 1990. She felt these two holy people especially were friends during her illness. “I just stayed close to them, and watched how they lived out the suffering,” Brenda says.

Brenda also received support from the Archdiocese’s leadership team and priests, friends, and even strangers.

“I had so many people praying for me,” she marvels. “The whole presbyterate knew about this and was praying for me. Like the number of priests that reached out, just out of the blue, and said, ‘I offered my Mass for you today.’ . . . being the recipient of so many intentional prayers was tangible.”

She also recalls a friend who organized a spiritual bouquet for her. “One of the women in the spiritual bouquet said, ‘I’m offering my Masses for the entire month of September for you,’” Brenda says. “And her son is a priest, and she had her son offer some Masses for me. And this is a woman who’s a daily

communicant—Masses for the entire month of September. That’s huge.”

It would not surprise anyone who knows Brenda’s ability to forge connections to flourish by helping others flourish.

Brenda had spent six years in public accounting before switching careers to become a recruiter for nearly 10 years. “Part of my job at Arthur Andersen was recruiting for my team. I always enjoyed it,” she says.

“So when I discerned leaving the firm after my daughter was born, I went to meet with a recruiting firm to just help me find a job. And they just said, ‘Hey, you’ve got a personality, you’re engaging, you can talk to people. What do you think about trying this?’” she says. She had sometimes thought about going into sales and perceived recruiting to be similar to sales. “I decided to give it a try, and I really enjoyed it.”

Being a recruiter also allowed Brenda the flexibility to stay at home with her five children until 2010. That’s when she took an accounting job with FOCUS, Fellowship of Catholic University Students, where she worked until 2020.

“I felt a specific call that God was asking me to go back to work,” she says. “God was asking me to go back to accounting, when I had done recruiting for 10 years prior. And I remember in my prayer saying to God, ‘Why do you care if I do accounting?’ But I think it was because he wanted me to go to FOCUS and receive the formation in discipleship.”

“He wanted me to become a disciple, and he was using my skill set as an accountant as the pathway,” she explains. “I embraced all that FOCUS offered in terms of formative opportunities.” Those included daily Mass, a daily holy hour with other staff, spiritual direction, and just “mimicking the spiritual life of an on-campus missionary,” she says.

In 2020, she joined the Denver archdiocese to become its new CFO, working for Keith Parsons, Denver’s Chief Operating Officer, who she says “has helped me to flourish.” She also credits her continued spiritual growth to Archbishop Aquila; Fr. R.Michael Dollins, the Vicar General; Dr. Scott Elmer, Chief Mission Officer; Fr. Angel Perez-Lopez, Vicar for Clergy; and others on the Mission Leadership Team.

Being a recruiter is part of God’s call for her life. “The natural part of my personality that’s a connector has never left me. The people here at the Archdiocese will tell you that I’m constantly making connections and recruiting,” she says. “It was through helping candidates in their own career discernment that I started to connect that God has a purpose for each of us. Each one of us has a call on our lives.”

“I started to realize that by talking to people and helping them reflect on their own careers, I was helping them do more than just find another job,” she explains. “Sometimes helping people build up confidence, but also just casting a vision and saying, ‘Here’s what I see in you that I think would be good. And here’s how I think that this role or task or project would help you grow.’”

“So I derive a lot of joy and feel fulfilled when I’m helping someone else be who God made them to be and to really flourish in what they’re doing,” she says. “I’m still a recruiter at heart. I’m always connecting people.”

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CDFM online prep courses are available for all 16 test areas!

These are excellent courses that will help you succeed on the exam.

The deadline to register for the exam is October 2nd, 2024.

The Certified Diocesan Fiscal Manager credential represents the pinnacle qualification for a diocesan financial executive.

The CDFM Exam is a challenging, thorough test of knowledge across sixteen core competencies. Those who attain the CDFM distinguish themselves as extremely well qualified within the profession, and enjoy commiserate peer recognition as a result. DFMC and Villanova Center for Church Management have invested in these preparation courses to ensure that you have all you need to prepare for and pass the CDFM Exam.

Below is a sampling of the 16 prep courses.

Join those DFMC colleagues who have successfully achieved this professional certification by submitting your application to sit for the CDFM examination to the DFMC National Office by October 2, 2024.

Federal Litigation

USCCB Files Amicus Brief in EMTALA Cases

On February 27, the USCCB and other Catholic groups filed a joint amicus brief in the U.S. Supreme Court in two consolidated cases involving a claim by the U.S. Department of Health and Human Services (HHS) that the Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals that participate in Medicare to perform abortions in some circumstances. The brief, filed on behalf of petitioners State of Idaho and Idaho legislature, urges the Court to reject HHS’s reading of EMTALA and to hold that EMTALA does not require abortions or preempt Idaho law prohibiting abortion.

Here is an excerpt from the brief’s Summary of Argument: [HHS’s] position … entirely disregards the duties and responsibilities owed by hospitals to an unborn child under EMTALA. To assert that abortion—intentionally taking an unborn child’s life—is required under EMTALA is contrary to the unambiguous text and intent of that statute and other federal laws. As Amici explain, pregnancy complications can always be safely and ethically treated without intentionally taking the life of an unborn child in a direct abortion. [HHS’s] interpretation of EMTALA, however, not only ignores this fact, but also violates the conscience rights of pro-life hospitals and other providers who have medical, ethical, or moral objections to the intentional killing of unborn children. This grave violation of conscience rights risks pushing sorely needed medical professionals, hospitals, and other institutions out of the provision of health care, seriously endangering access to medical treatment for millions of people across the nation.

Amici therefore offer this brief to explain the significant impact of requiring abortions on both the unborn child and on Catholic hospitals and professionals, who provide safe and ethical treatment of all pregnancy complications without performing abortions. Accordingly, Amici urge this Court to reject [HHS’s] efforts to fabricate a federal abortion mandate that will override state law and, in so doing, violate the rights of religious health care providers who desire to treat and protect the lives and health of both the mother and her unborn child in compliance with the text and purpose of EMTALA.

Other groups joining the brief were the Catholic Health Care Leadership Alliance, Christ Medicus Foundation, National Catholic Bioethics Center, Catholic Bar Association, Catholic Medical Association, and Catholic Benefits Association.

The brief is available here

See: Moyle v. United States, No. 23-726 (U.S.); Idaho v. United States, No. 23-727 (U.S.).

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USCCB and TCCB File Amicus Brief in Chemical Abortion Cases

On February 29, the USCCB, Texas Conference of Catholic Bishops, and other groups filed a joint amicus brief in the U.S. Supreme Court in two consolidated cases that involve a challenge to the Food and Drug Administration’s decision, in 2016 and later years, to relax the dispensing and prescribing requirements for mifepristone, a drug used to induce abortion. The brief, filed in support of respondent Alliance for Hippocratic Medicine, notes the maternal health risks associated with mifepristone and challenges the lawfulness and reasonableness of the FDA’s decision under the Administrative Procedure Act. Here is an excerpt from the Summary of Argument:

The requirement that a healthcare provider obtain a patient’s freely given informed consent before medical treatment is firmly established in law and is a cornerstone of modern bioethics. The patient’s decision must be based on adequate disclosure of the diagnosis, the proposed treatment, its benefits, risks, and alternatives, and the patient must have capacity and freedom from coercion. These fundamental principles, which protect both patients and medical professionals, cannot be met when healthcare providers prescribe mifepristone under FDA’s current protocol.

Because of the risks posed by taking mifepristone to cause an abortion, its availability is limited by an FDA-imposed Risk Evaluation and Mitigation Strategy (REMS) with post-marketing “elements to assure safe use” (ETASU). But to the detriment of women, FDA’s approval was based on studies containing safeguards not used when actually prescribing the drugs post-approval. This prevents prescribers from being able to accurately convey the true risks of the drug to patients. FDA then eroded those post marketing requirements in 2016, 2021 and 2023. FDA’s newer post-marketing restrictions do not require reporting of non-fatal adverse events to the drug’s sponsors, which is critical to ensuring drugs’ safety. FDA also no longer requires in-person appointments to prescribe mifepristone. But in-person visits are critical. Without it, physicians are unable to adequately diagnose ectopic pregnancy, verify Rh status, or detect other contraindications. Physicians thus cannot adequately inform a woman of her personal risks related to mifepristone. And without in-person visits, prescribers also cannot adequately determine whether patients are giving consent without coercion.

Other groups joining the brief were Susan B. Anthony Pro-Life America, Catholic Health Care Leadership Alliance, National Catholic Bioethics Center, Catholic Bar Association, Coalition for Jewish Values, Catholic Benefits Association, Christ Medicus Foundation, National Catholic Partnership on Disability, and the National Association of Catholic Nurses, USA.

The brief is available here

See: FDA v. Alliance for Hippocratic Medicine, No. 23-235 (U.S.); Danco Laboratories v. Alliance for Hippocratic Medicine, No. 23-236 (U.S.).

Law Briefs is published by the USCCB Office of the General Counsel. Copyright © United States Conference of Catholic Bishops. All rights reserved.

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Federal Litigation

Federal Government Permanently Enjoined from Enforcing the PWFA Against the State of Texas

In May 2020, the U.S. House of Representatives passed a resolution allowing House members to vote on bills and be counted as part of the requisite quorum by written proxy. The proxy could House chamber.

Under the resolution, the House passed the Consolidated Appropriations Act, 2023 (the Act), even though a majority of House members were not physically present in the chamber. The Act includes among its provisions the Pregnant Women’s Fairness Act (the PWFA), which requires employers to accommodate pregnancy and related medical conditions.

Alleging standing on the basis of expenses it would incur in complying with the PWFA, the State of Texas sued the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC), claiming that the Act was passed in violation of the Constitution’s Quorum Clause and that the PWFA, having passed without a majority of House members physically present, is therefore invalid. U.S. Const. art. I, § 5, cl. 1 (“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”) (emphasis added).

A federal district court in Texas agreed that the PWFA was enacted in violation of the Quorum Clause, and permanently enjoined DOJ and the EEOC from enforcing the PWFA against the State of Texas:

When a majority of members are revealed to be absent, the Quorum Clause gives the House two options: adjourn or compel the attendance of absent members. It does not allow the House to adopt a mechanism to deem those absent members present and part of the quorum. Accordingly, because the record of the vote on the Act demonstrates that only a minority of members cast votes in person, with the remainder voting while absent and through proxies, Texas has proven that the Act was passed in violation of the Quorum Clause.

Constitutional text and history support this conclusion.

If the Founders had intended to allow vote by proxy, it would not have included a provision authorizing present members to compel the attendance of absent members. At the constitutional convention, Alexander Hamilton proposed allowing members to vote by proxy while prohibiting a representative present to be proxy for more than one who is absent. The convention did not adopt that proposal, instead deciding to allow members to ensure the physical presence of absent members by compelling their attendance.

Until the current resolution allowing vote by proxy, “no house of Congress had ever attempted to affirmatively count a non-present member as part of the quorum.” The very first Congress had to plead with members to attend, specifying in a letter to absent members that the “presence” of a majority was “indispensably necessary.” The first Congress maintained this understanding throughout its term, with each session’s business delayed until enough members appeared and attended the proceedings in person.

The first Congress was not an outlier. Subsequent Congresses delayed their proceedings until a majority of members could be assembled in their respective chambers. Recognition that physical presence is needed to establish a quorum is evident in modern times as well. In 1937, then-Speaker of the House William Bankhead noted that “[n]o business of any character can be transacted” if less than a majority of members were physically present during a count of the members. A later speaker, Sam Rayburn, likewise remarked before a quorum count in 1950 that “[t]he Chair cannot count any Members that he cannot see.”

The injunction, which protects only the State of Texas, bars DOJ and the EEOC from “accepting any charges or issuing any rightto-sue letters in relation to charges brought under the [PWFA], or any implementing regulations thereto, against the State of Texas and its divisions and agencies.” The injunction allows the defendants to “send a written notice upon receipt of a PWFA claim against the State of Texas … to the claimant stating that, due to this Final Judgment, they are unable to accept the charge, investigate it, or issue a right-to-sue letter.”

The injunction only restrains the federal government, the court wrote, and does not prevent a private plaintiff from filing her own lawsuit against the State of Texas. Such a plaintiff, the court noted, may argue that the non-exhaustion of her administrative remedies should be excused due to the impossibility of obtaining administrative review under the court’s injunction. –M.M.

See: Texas v. Garland, No. 5:23-CV-034-H, 2024 WL 967838 (N.D. Tex. Feb. 27, 2024).

Law Briefs is published by the USCCB Office of the General Counsel. Copyright © United States Conference of Catholic Bishops. All rights reserved.

Federal Litigation

District Court Upholds Exclusion of Faith-Based Schools from Tuition Assistance Program in Maine Based on Non-Compliance with State Nondiscrimination Rules

In Carson v. Makin, 596 U.S. 767 (2022), the Supreme Court struck down a Maine law that excluded faith-based schools from a state tuition assistance program based on their religious character. While Carson was pending, the Maine legislature passed new nondiscrimination rules that forbid schools that participate in the program to discriminate on the basis of gender identity or religion, and that remove the faith-based schools’ exemption from an existing rule that forbids discrimination on the basis of sexual orientation.

Crosspoint Church, which operates a faith-based school in Maine, sued state officials to challenge its exclusion from the tuition assistance program on free exercise and other grounds. As evidence of religious targeting, the Church cited a press release issued by the Maine Attorney General on the day of the Carson decision:

The education provided by the [religious] schools at issue here is inimical to a public education. They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff. One school teaches children that the husband is to be the leader of the household. While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear. I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.

While the Court’s decision paves the way for religious schools to apply to receive public funds, it is not clear whether any religious schools will do so. Educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.

As further evidence of religious targeting, Crosspoint pointed to a tweet by the Speaker of the Maine House of Representatives a few days after Carson was handed down. An individual had tweeted: “You know how SCOTUS said Maine couldn’t exclude religious schools from their voucher program? Maine just changed the guidelines to exclude schools that discriminate against LGBTQ+ students.” The Speaker responded: “Sure did. Anticipated the ludicrous decision from the far-right SCOTUS.”

The district court denied Crosspoint’s motion for a preliminary injunction, holding that Maine’s nondiscrimination rules were neutral and generally applicable and therefore were not subject to a free exercise challenge.

General applicability. In support of its claim that the rules were not generally applicable, Crosspoint pointed to an exemption for single-sex schools, but that exemption was subsequently eliminated by the legislature. As a result, the nondiscrimination rules apply to all schools without exception.

Neutrality. Crosspoint argued that the nondiscrimination rules were not neutral as to religion because their timing and structure show that their purpose was to preemptively exclude faith-based schools from the tuition assistance program in order to moot Carson. Crosspoint also pointed to the statements of the Attorney General and Speaker, statements that suggest an attempt to do an end-run around Carson

The court found no significant evidence that the legislature’s objective was to impede or constrain religion as opposed to ensuring uniformity in a legislative scheme that already prohibited these types of discrimination by organizations receiving public funds in the housing and employment context. Although the Attorney General’s statement lends credence to Crosspoint’s argument about religious targeting, the Attorney General is not a member of the legislature, and there was “no evidence that he had a hand in proposing the legislation to a legislator.” As to statements of the Speaker, the Supreme Court has repeatedly cautioned against relying on the statements of one legislator to ascribe bad motives to an entire legislative body. Furthermore, both the Attorney General’s statement and the Speaker’s tweet were issued nearly a year after the legislature adopted the new nondiscrimination rules.

The court also rejected Crosspoint’s other claims.

The court recognized that its decision is likely not the last word:

[T]he Court acknowledges that Crosspoint is raising important legal questions. Despite the plaintiffs’ hard-fought and significant victory at the United States Supreme Court in Carson, the Maine Legislature and the Maine Attorney General have largely deprived Crosspoint and similar religious schools of the fruit of their victory…. Although it has done its best to set out, analyze, and decide these difficult constitutional issues, the Court also recognizes that this case poses novel constitutional questions and has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling. –M.M.

See: Crosspoint Church v. Makin, No. 1:23-cv-00146-JAW, 2024 WL 810033 (D. Maine Feb. 27, 2024).

LAW BRIEFS

USCCB, CLINIC File Amicus Brief

to Vindicate U.S. Citizen’s Right toEstablish Home in United States with Noncitizen Spouse

On March 28, the USCCB and Catholic Legal Immigration Network filed a joint amicus brief in the U.S. Supreme Court to vindicate the right of a United States citizen to establish a home in this country with a noncitizen spouse.

Here is the brief’s Summary of Argument:

Since our Nation’s founding, the right to marry and to form a family have been fundamental to American society. These rights— which include the right of individuals to cohabitate, procreate, raise children, and decide their place of residence with their immediate family—predate and are encompassed by the Fifth and Fourteenth Amendments’ Due Process Clauses. These liberty interests are woven throughout Catholic teaching. “[T]he marriage covenant … is found throughout salvation history.” Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church ¶ 219 (2005) (“Compendium”). As the Bible teaches, “Therefore, what God has joined together, no human must separate. Matthew 19:6 (New American Bible). The importance of marital and familial unity, as emphasized by the Church, means that all people have “the right to live in a united family,” Compendium ¶ 155 (emphasis omitted), and “the right to migrate to support themselves and their families.”

A U.S. citizen’s right to marital and familial unity does not depend on whether that citizen has a domestic family or an immigrant family. For a U.S. citizen like [Respondent] Mrs. Munoz—who has lived apart from her spouse for over eight years of marriage— the adjudication of a spousal visa implicates the fundamental liberty interest in marriage and family, and is sufficient to trigger procedural due process. In particular, a visa denial compels couples to make difficult decisions about their marital and familial home—decisions that may fracture the most intimate parts of their lives. For many, the enjoyment of a fundamental right (marriage and raising a family) relies on the sacrifice of another fundamental right residing in one’s country of citizenship). For these reasons, Pope Francis beseeches nations “to respect the right of all individuals to find a place that meets their basic needs and those of their families, and where they can find personal fulfillment.”

Any meaningful protection of marriage must therefore encompass a U.S. citizen’s right to seek to establish a home with their noncitizen spouse and raise children in the United States. To protect marital and familial rights that are central to the Church’s teaching and this Nation’s history and tradition, ordered liberty requires that this Court recognize a U.S. citizen’s liberty interest in the adjudication of a spousal visa.

See: Department of State v. Munoz, No. 23-334 (U.S.) (pending).

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Federal Litigation

USCCB Files Amicus Brief to Vindicate Right of Homeless Persons to be Free of Criminal Sanctions Based on Their Homeless Condition

On April 3, the USCCB filed an amicus brief in the U.S. Supreme Court to vindicate the right of homeless persons to be free of criminal sanctions as a consequence of their homeless condition.

Here is the brief’s Summary of Argument:

It has long been central to western tradition and Catholic teaching that homeless people should not be punished merely because they lack shelter. As Pope Francis has emphasized, “The Son of God came into this world as a homeless person. The Son of God knew what it was to start life without a roof over his head.” Pope Francis further explained, “I can imagine Joseph, with his wife, about to have a child, with no shelter, no home, no place to stay.... And those of us who have a home, a roof over our heads, would ... do well to ask: Why do these, our brothers and sisters, have no place to live? Why are these brothers and sisters of ours homeless?”

This embracing view of homeless people has been in the mainstream of western tradition and Catholic teaching for centuries, including at the time that the Constitution and the Bill of Rights were adopted. It has long been part of a broad and enduring consensus. To take only one example, the Catholic catechism in use at the time of the Founding (the “Carroll Catechism”) called on individuals, as a fundamental duty, to “harbour the harbourless”—to provide shelter for the homeless. That is a far cry from criminal sanctions for the crime of lacking a home, of being “harbourless.”

In short, the contention that the government may impose criminal punishments on homeless people precisely because of their homelessness deeply conflicts with settled western and Catholic understandings for many centuries. It is likewise inconsistent with the views of the Founding generation and with current constitutional principles.

In stark contrast with these long-held understandings, the City of Grants Pass has in substance made it a crime to be homeless within its borders. See Resp. Br. 15-18. That criminal punishment regime is cruel and unusual under any sound meaning of that phrase, and a violation of the Eighth Amendment.

In this brief, amicus USCCB will respectfully bring two points to the Court’s attention. First, Catholic teachings and western tradition demonstrate that permitting the criminalization of homelessness would be a sharp, unwarranted, and deeply troubling departure from our heritage. Second, a decision confirming that criminalizing homelessness is cruel and unusual punishment would not open the floodgates to expansive Eighth Amendment claims; such a holding would reflect only a narrow application of settled precedent and principles.

The entire brief is available here

See: City of Grants Pass v. Johnson, No. 23-175 (U.S.) (pending).

Section 501(c)(3) Status Does Not Constitute Receipt of Federal Financial Assistance for Purposes of Title IX

N.H. was a student at Concordia Prep, a Lutheran high school in Maryland. She claimed that she was sexually harassed, assaulted, and bullied at school in violation of Title IX of the Education Amendments of 1972, which forbids schools that receive federal financial assistance to discriminate on the basis of sex.

Concordia Prep moved to dismiss on the ground that it does not receive federal funds. N.H. argued that the school is a recipient of federal funds simply by virtue of its tax-exempt status.

The district court agreed with N.H. and denied the motion to dismiss.

The Fourth Circuit has now reversed:

Tax exemption is not “Federal financial assistance.” This is not a novel concept. Indeed, since Title IX’s inception over fifty years ago, it has never been applied to organizations based solely on their exempt status. And for good reason. Although tax exemption is a tax benefit, that does not mean it is “Federal financial assistance” for Title IX purposes…. “[A]ssistance” means “aid, help, or support,” which all connotate financial grants. Tax exemption, however, is the withholding of a tax burden, rather than the affirmative grant of funds. Thus, tax exemption is not “Federal financial assistance.” –M.M.

See: Buettner-Hartsoe v. Baltimore Lutheran High Sch. Ass’n, 96 F.4th 707 (4th Cir. 2024).

LAW BRIEFS

Copyright Fair Use Post-Warhol: the “Tiger King” Case

Netflix released a documentary series entitled “Tiger King” in March of 2020, which became a nationwide sensation during the pandemic shutdown. Videographer Timothy Sepi worked for the zoological park featured in “Tiger King” and eight of his videos were featured in the program. After the series aired, Sepi and his production company, Whyte Monkee, filed copyright registration applications for the eight videos and sued both Netflix and the producer of “Tiger King,” Royal Goode Productions, for copyright infringement in the streaming of the videos.

Seven of the videos were found to be works for hire, but one was a static video taken at the funeral of Mr. Exotic’s spouse. The funeral video was taken after Sepi’s employment with the zoological park had ended and was reviewed on appeal “in light of the Supreme Court’s recent guidance in Warhol.”

Among other arguments, the plaintiffs contended that the first statutory fair use factor, the purpose and character of the use—including whether the use is commercial—weighs in their favor. Indeed, citing Andy Warhol Foundation v. Goldsmith, 589 U.S. 508 (2023), the Tenth Circuit agreed that “Defendants’ use of the Funeral Video is not transformative under the first fair use factor.” Specifically, the court of appeals found it crucial to note Warhol’s admonition that “when ‘commentary has no critical bearing on the substance or style of the original composition, … the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.’” Id. at 530-31.

In this case, use of the video was not a comment on the video itself as the “target” work but rather a comment on the person in the video in an historical fashion; the defendants failed to transform the work from one of “remembrance” to something else. The new meaning or message of commenting on Mr. Exotic’s purported megalomania “does not suffice under the first factor."

The Tenth Circuit continued its review of the statutory fair use factors, finding that numbers two and three weighed in favor of the defendants. However, as to the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, the court of appeals found that the district court had an inadequate factual record before it and remanded the case accordingly. –M.A.N.

See: Whyte Monkee Prods. v. Netflix, 97 F.4th 699 (10th 2024).

Law Briefs is published by the USCCB Office of the General Counsel. Copyright © United States Conference of Catholic Bishops. All rights reserved.

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Federal Litigation

City Restrictions on Feeding the Homeless Violate RLUIPA

Since 2009, St. Timothy’s Episcopal Church in Brookings, Oregon, has offered free lunch to the homeless. Over time, homelessness in Brookings has increased significantly. As a result, St. Timothy’s expanded its program and now provides meals five or six times a week. The increased foot traffic generated complaints from neighbors. The City responded by passing an ordinance that permits “benevolent food services”—defined as food offered to the public without charge—no more than two days a week.

St. Timothy’s challenged the ordinance under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court has now granted St. Timothy’s motion for summary judgment.

There is “no genuine question that St. Timothy’s feeding ministry is a sincerely held religious belief” or that the ordinance substantially burdens that belief. “[F]eeding the hungry and caring for the most vulnerable members of a community” are “at the very heart and foundation of the Christian tradition.”

The City failed to demonstrate, as it must to meet its burden under RLUIPA, that the ordinance serves a compelling interest and is the least restrictive means of furthering that interest.

Compelling interest. The City “has not articulated how the specific provisions of the Ordinance that limit meal service to two days per week” further its claimed interest in maintaining peace and order and preventing crime. Other property holders, such as golf courses and bed and breakfasts, can serve meals without restriction. So “why not a church?” In addition, the fact that the City has long permitted meals for the homeless without restriction is fatal to its argument that the new restrictions are now necessary to promote peace and order and deter crime.

Least restrictive means. Even if it had shown a compelling interest, the City has not demonstrated that it considered and rejected less restrictive measures. –M.M.

See: St. Timothy’s Episcopal Church v. City of Brookings, No. 1:22-cv-00156-CL, 2024 WL 1303123 (D. Or. Mar. 27, 2024).

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Regulatory Issues

USCCB Files Comments on Indian Health Service Proposal to Expand Government Funding of Abortion

On February 21, the USCCB filed comments on a regulatory proposal by the Indian Health Service to rescind regulatory requirements with respect to abortion and to expand government funding of abortions.

The comments are available here

See: 89 Fed. Reg. 896 (Jan. 8, 2024).

Law Briefs is published by the USCCB Office of the General Counsel. Copyright © United States Conference of Catholic Bishops. All rights reserved.

USCCB Files Comments on Proposed Foreign Assistance Regulations

On March 19, the USCCB filed comments on a regulatory proposal by the State Department relating to nondiscrimination in foreign assistance grants and contracts.

The comments are available here

See: 89 Fed. Reg. 3583 (Jan. 19, 2024); 89 Fed. Reg. 3625 (Jan. 19, 2024)

USCCB Files Comments on EPA Regulatory Proposal Relating to Safe Drinking Water

On February 5, the USCCB filed comments on a regulatory proposal by the Environmental Protection Agency relating to safe drinking water. The proposed revisions are to the National Primary Drinking Water Regulation for Lead and Copper, issued under the Safe Drinking Water Act.

The comments are available here

See: 88 Fed. Reg. 84878 (Dec. 6, 2023).

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State Litigation

Catholic Charities Does Not Qualify as “Religious” Organization for Purposes of Exemption from Wisconsin Unemployment Tax

On March 14, by a 4-3 vote, the Wisconsin Supreme Court held that Catholic Charities Bureau and four of its subsidiaries (collectively Charities) do not qualify as “religious organizations” and therefore are not exempt from state unemployment tax.

Under the statute, the Wisconsin unemployment compensation program does not apply to services performed in the employ of (1) a church or convention or association of churches or (2) an organization “operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention of association of churches.” Charities claimed it was exempt from unemployment tax under the second prong.

The case has a tortuous history. The Wisconsin Department of Workforce Development denied Charities’ request to recognize it as exempt. An administrative law judge (ALJ) reversed. The Wisconsin Labor and Industry Review Commission, ruling against Charities, reversed the ALJ’s decision. The trial court, siding with Charities, reversed the Commission’s decision, but the court of appeals reversed.

The state Supreme Court has now affirmed the court of appeals’ decision, resulting in a final decision adverse to Charities. The Supreme Court concluded that a determination of exempt status requires review of both the motivation and the conduct of the organization claiming the exemption. To be eligible for the exemption, an organization must be both religiously motivated and provide “religious” as opposed to secular services. The court held that Charities, though religiously motivated, provides secular services in the form of job training and other services to those with are poor or have disabilities.

The court rejected Charities’ argument that its holding would create constitutional problems. There was no excessive entanglement with religion, and hence no Establishment Clause violation, the court reasoned, because resolution of the case required no examination of Church teaching. There was likewise no free exercise problem because paying unemployment tax does not substantially burden Charities’ religious beliefs or practices.

Justice Rebecca Grassl Bradley dissented. The notion that Charities is secular, she writes, is “absurd[].” The majority’s misinterpretation of the statute, moreover, renders it in violation of the First Amendment because it “transforms a broad exemption into a denominational preference for Protestant religions and a discriminatory exclusion of Catholicism, Judaism,” and other religions. Becket, which represented Charities before the Wisconsin Supreme Court, has announced that Charities intends to file a petition for certiorari in the United States Supreme Court. –M.M.

Practice Point:

The state Supreme Court mistakenly defined religion and religious activity narrowly to include only worship and religious teaching. Religious organizations that understand themselves as having a universal mission (not just a mission to their co-religionists) and that provide services without preaching to those they serve stand to be disadvantaged by such a narrow understanding of religion.

As the dissent notes, such denominational preferences are unconstitutional. See Larson v. Valente, 456 U.S. 228 (1982) (Minnesota charitable solicitation statute that exempted only religious organizations that receive more than half of their total contributions from members or affiliated organizations violated the Establishment Clause).

See: Catholic Charities v. State of Wisconsin Labor & Industry Review Commission, 3 N.W.3d 666 (Wisc. 2024).

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