Issuu

Volume XXXV Number 4• LATE FALL 2024

INSIDE

WILLHITE Chief Administrative Officer, Archdiocese of Portland in Oregon

Message From The dfmc president

By Jo Willhite

Thank you for entrusting me with this responsibility as President of the Diocesan Fiscal Management Conference and Chairman of the Board. DFMC has been a big part of my life for more than a decade now, and I am concluding the final year of my final term on the Board of Directors, as our constitution permits me to serve two consecutive board terms only.

Upcoming Webinars

DFMC is in a great place right now. Our annual meetings have deepened offerings; spiritually, socially, and in terms of professional development. Our program of mission-advancing events and online curricula between annual meetings has grown considerably. CPE-granting webinars, the CDFM program that is experiencing a real rejuvenation, robust dialogue on our member-only website message board, and regional meetings throughout the United States are examples of how today the DFMC experience is truly year-round and constantly delivering benefit. Less measurable, but no less meaningful, are the priceless relationships formed amongst all of us that enrich us so much personally and professionally. In my first term on the DFMC Board of Directors, we faced the challenge of COVID-19 phenomenon, and the state restrictions associated with it. DFMC 2020 was a completely virtual conference, a format none of us prefer. For professional associations like ours, COVID posed a particular obstacle. Impacts of COVID affected DFMC 2021 in Nashville and DFMC 2022 in Washington, D.C., too. This year, the majority of the workers at our host hotel went on strike a few weeks before DFMC 2024 in San Diego, and our friends at Catholic Extension informed us in early Spring that they would have to pause for a year on their scholarship program that DFMC members had relied upon for many years. During my six years on the board, we have cleared these and many other hurdles quite capably. We have also completed national searches for a new Executive Director, a new Episcopal Moderator, and implemented a special succession plan when the board’s rising president

left the staff of his diocese and therefore the DFMC board months before taking office. These examples, and so many others, reflect the agility of our team and the professionalism with which we react to adversity. Our Faith has a lot to do with that.

Remarkably, we have not just maintained our organizational health during these unusual times, we have risen to new heights never seen before in DFMC. Financially, our organization has never been healthier. The benefits of this alone permeate in everything we do, and allow our governance and management team the freedom to dream big and pursue exciting opportunities on behalf of our membership. We have added a great deal to the DFMC Annual Meeting and are delighted that attendance has returned to and surpassed pre-COVID levels. Our conference faculty, particularly, has been highly rated in recent years; as have enhancements like Eucharistic Processions, special exhibits celebrating our rich Catholic Heritage, and streamlining of the delivery of CPE credits. Between annual meetings, more numerous and enhanced regional meetings fill the calendar; as do CPE-granting webinars presented alongside more Catholic educational institutions than ever before. We have upgraded technology across every area of our operations, implemented efficiencies saving us time and money, and eliminated unnecessary expenses. We are dedicated as a management team to deeper practice of our Catholic Faith, and encouraging intensification of spirituality in our membership. We believe the fruits of this commitment accumulate in both temporal and metaphysical terms.

I am so excited for the year to come! Last year, our Board adopted a strategic goal of offering enough free CPE to DFMC Conference members for them to earn the majority, and possibly all, of their needed continuing education hours through the DFMC. We believe today, through the Annual Meeting, regional meetings, DFMC-hosted webinars, DFMC Vendorhosted webinars, and our self-study courses recently updated and republished on the DFMC websitethat we have met this goal. These CPE credits are not only free of charge and easily accessible to you, but they are intentionally designed to be relevant to your work as a Catholic fiscal officer.

BOARD OF DIRECTORS

Jo Willhite

President

Archdiocese of Portland in Oregon

Keith Parsons

Vice President Archdiocese of Denver

Shirley Pajanor

Treasurer Diocese of San Diego

Dn. Eric Simontis

Treasurer Diocese of San Jose

Most Rev. James R. Golka

Episcopal Moderator Diocese of Colorado Springs

John Matthew Knowles

Executive Director

Mac Bryant Diocese of Manchester

Carolyn Callahan Diocese of Jackson

Cecilia Colbert Diocese of Dallas

Marc Fisher

Archdiocese of Philadelphia

Michael McGee Diocese of Richmond

Carla Mills

Archdiocese of Kansas City in Kansas

Jorge Montenegro Diocese of San Bernardino

Debbie Swisher Diocese of Lexington

Please mark your calendars for DFMC 2025 in Center City Philadelphia, September 28 – October 1, 2025. Site Chairman Marc Fisher has been incredible to work with on this, our speakers are all in place, and we have some very special surprises in the works that we will share in the coming months. Philadelphia is one of the great cities to visit, and the Marriott Downtown could not be a more perfect, more central location to experience it all. DFMC 2025 will take place just months from the celebration of our Nation’s 250th birthday in Summer 2026, and many of the attractions related to that will be in place. You won’t want to miss our 55th annual DFMC Conference and Annual Meeting.

In closing, let me first thank our esteemed Board of Directors that I have the privilege to lead, our Episcopal Moderator Bishop Golka, and the DFMC Staff. We have a terrific team of smart, creative, hard-working people who love the Church and recognize the importance of professional services supporting it. Know that each of us think every day about how to help you succeed professionally, form strong relationships with your colleagues, and deepen your Faith. Your membership and involvement in DFMC are appreciated and valued. Thank you for trusting us with governance of this important association. I wish you and your family all the blessings available throughout the coming Advent season, and a Merry Christmas thereafter.

God Bless, Jo Willhite

Welcome to the DFMC!

Please give a warm welcome to recent members to the DFMC. You can send them a welcome note on the DFMC Member Portal.

• Ms. Agnes Ballard, Dir. Centralized Accounting, Amarillo

• Mr. Jay Bananal, Pastor, San Rafael

• Mr. Conan Bardwell, CFO, Tucson

• Mr. Michael Beaudoin, CFO, Saginaw

• Mr. Jerry Buettner, CFO, Sioux Falls

• Ms. Elizabeth Callaway, Senior Accountant, Little Rock

• Mr. James Chismar, Financial Accountant, Youngstown

• Ms. Jeannie Crone, CFO, Seattle

• Ms. Lorei Dawson, Interim CFO, Burlington

• Ms. Julia Doney, Controller, Great Falls-Billings

• Mr. Brian Haukom, Internal Auditor, San Diego

• Ms. Cindy Keane, Internal Auditor, San Diego

• Mr. Nicolas Keller, Compliance Officer, Youngstown

• Mr. David Kolbet, CFO, Denver

• Ms. LeAnn Lampley-Laster, Auditor, Youngstown

• Mr. Philip Luckie, Comptroller, Lake Charles

• Mr. Jeffrey Martin, Dir. Parish Accounting Srvcs., St. Louis

• Ms. Dalena McGrew, Dir. of Accounting, K ansas City, Kansas

• Mr. Sebastian Montoya, Accounting Technician, San Diego

• Mr. Jeerawan Ngoenraj, Pastor, San Rafael Parish, San Diego

• Ms. Diana Noguez, Payroll Coordinator, San Diego

• Mr. Thomas Onestak, Parish Auditor, Youngstown

• Ms. Sylvia Panczyk, Insurance & Screening Mgr., Hamilton

• Ms. Hedieh Pour, Sr. Accountant, San Diego

• Ms. Shanie Sanor, Controller, Pensacola-Tallahassee

• Ms. Maggie Shafer, Staff accountant, Savannah

• Ms. Katie Sholtis, Director of Internal Audit, Charlotte

• Ms. Rose Soledad, Diocesan Finance Officer, Chalan K anoa

• Dcn. George Stearns, CFO, Lake Charles

• Ms. Shannon Syzek, Exec. Dir. of HR, Denver

• Mr. Cortez Tarbor, Payroll Manager, San Diego

• Ms. Anne Triplett, CFO, Great Falls-Billings

• Ms. Jennifer Upton-Grayson, Director of Human Resources, Harford

• Ms. Janelle Welsh, Accounts Payable Specialist, San Diego

• Ms. Patty Williams, Chief Oper/Financial Officer, Toledo

Saint Matthew Medal Acceptance Speech: Dr. Wayne Lenell

You are

the Light of the World

Hello DFMC San Diego. I wish that I could be with you in person tonight and am grateful that technology allows me to join you in this manner. What an honor it is to be selected to receive the St. Matthew Medal. It has been eight years since I attended the conference and when John Knowles telephoned me with the news, I was quite surprised. Thank you to the DFMC Board for bestowing me this honor.

You heard in my introduction about some of the work I’ve done for the Church. I would like to take just a few minutes to encourage all of you to do the same and share my perspectives on how to give of your time and talents.

First, say “yes” when asked to assist whenever you can. It is so easy to say “no, I am too busy.” If you tithe your time to the Church you can accomplish many things. Some may tithe 10% of every hour the Lord gives to them while others may tithe every waking hour. But at a minimum, consider tithing your workweek hours or 10% of 40 hours per week for just four hours. Over the course of a year, those four hours per week produce over 200 hours. That is about the time it took me to write the CDFM exam some 15 years ago that is still in use today, though modified and updated by others.

There is a famous saying that “A journey of 1,000 miles begins with one step.” While that is an important concept, we must consider the remaining 2 million steps needed to complete the journey. In other words, if you accept an assignment, it is important to finish it in the time you promised it.

If you decide to accept an assignment, do so with the right attitude. For example, if you are asked to do something and you roll your eyes, take a deep sigh, and say, “I don’t really have time for this, but I guess I’ll do it,” you defeat the purpose of volunteering your time. The person you help will know that you are doing it reluctantly and will not fully appreciate your efforts. Instead say, “yes, I would be happy to help with this.” You might find that the other person will be so taken aback by your response, they might say something like, “Are you sure? I don’t want to impose upon your time.” And that gives you the opportunity for another positive response such as, “I’ll always make the time for an important project.” When you place importance on someone else’s vision you ignite purpose and passion into the project.

Know that you can’t do it alone. You need a supportive, competent staff. As the CFO for the diocese, I was fortunate to have Jodi Rippon as my assistant director. Not only did she provide valuable service to me but took the reigns as the CFO upon my departure.

You also need advisors. Who can you turn to when you need advice? Look to your left and to your right. Your colleagues here tonight may have gone through a similar experience. My colleague Dan Stremel of Dodge City was the one who envisioned offering

continuing professional educational courses. I was asked to write the courses and Dan reviewed them all. Beyond that, however, Dan had to “talk me off the ledge” more than once when I met with the challenges of getting the courses certified for credit for CPAs.

It's also important to listen to, but not necessarily accept, criticism. Negative comments can be very discouraging especially if you are volunteering your time. Don’t let them derail you from your mission. Make it your mission to commit your best and to surround yourself with supportive people who add value and knowledge to the tasks at hand.

Finally, remember to do everything with Excellence. When you volunteer your time you have chosen to be priceless. Your sacrifice should reflect your finest fruits of labor. Reports written with excellence (spell checked and grammar checked) and applications Alpha and Beta tested. To quote Saint Matthew: You are the light of the world. Let your light so shine before men, that they may see your good works and glorify your Father in Heaven.

Thank you to all those you have committed and volunteered their time over the years. You are the light of this world and a reflection of God’s love to those in need. Thank you again for this honor and May God bless you and inspire you to pursue purpose and excellence through the rest of this conference

DR. WAYNE LENELL

CALLAHAN

Saying Yes to Service

by Jeanette Fast Redmond

“Curiosity is the most fun trait that I have,” says Carolyn Callahan.

The director of temporal affairs for the Diocese of Jackson, who was recently elected to the DFMC board, credits her faith for her curiosity, ability to learn, and willingness to take on new roles.

“My faith allows me to say yes because I know I’ve been given the gift of figuring things out and relying on others to help,” she says. “It’s also part of my curiosity. ‘Sure, I’d like to do that. I’d like to know that.’”

“I feel like my talents can help. So I say yes because of my faith in knowing I’ll figure it out, and God will help me figure it out,” she emphasizes. “I’m a puzzle solver.”

Carolyn said yes to the invitation to join the DFMC board when outgoing board member Tammy DiLorenzo, of the Biloxi diocese, nominated Carolyn to replace her. The two had just spearheaded a successful regional conference. “It really was received well by the 70 participants, as well as all the sponsors,” Carolyn recalls.

“There were things that Tammy was very strong with, like being there at the event and planning the dinners, and she’s very good in the moment,” Carolyn says. “I absolutely loved networking with all the people and coming up with good ideas for presentations and finding the people who could do the presentations.”

When Tammy nominated her, Carolyn explains, “I was just on the heels of that regional and had such a good time, and said, ‘ Sure, I’d be glad to do it.’”

“I have no idea what’s going to happen next, but I know I’ll enjoy working with the people on the board, and I’ll learn a lot,” she explains.

Carolyn credits especially her father with her confidence, faith, and curiosity.

“My father is the most instrumental person in my life,” she says. “He’s very serious and he’s very funny. He’s wise. He listens. He believes that one’s character is their most valuable trait,” she says.

She learned both confidence and humility from her father, which helps her to know to “play to your strengths and find people to help you. Where your strengths are not [present], rely on their strengths.”

“So just strong faith, strong character, always there, always helping, always supporting—but not too much,” she says of her father’s influence. “He’s where I got the phrase ‘Don’t tell me you can’t—tell me you’ll try.’”

Carolyn earned her BBA in accounting from the University of Louisiana at Monroe, followed by an MBA from Belhaven University, and entered a male-dominated accounting industry in the 1980s.

“Throughout my career in the ’80s I was always working for men, and I continually saw the surprise on their face when I

would have the answer,” she recalls. “I could be ignored until I started talking and they needed the answers. And then I got the respect.”

Both parents helped her weather the challenges of being a woman in business. She credits her mother’s unconditional love, as well as a second key lesson: “Do not let people walk on you.” And her father taught her, “You don’t have to be liked. You do need to be respected. You don’t demand it, you command it.”

“Good character is everything. So when you live that way and you have the answers, it overcomes those obstacles of being a woman in a mostly male-run organization or career,” she explains. “I can usually move past it and say, ‘You want the answers? You want the results? Or are you worried about if I’m male or female?’ And it ends up they want the results.”

After a few years, Carolyn began working with the Jackson diocese when her children were young. She and another mother transitioned their parish school’s accounting system. “From there I started working for the superintendent for all the schools. From there I worked for the local high school and then started working for the diocese as the school accounting oversight,” she says. “And then I moved into special projects, which was software conversions, then to controller, and then finally the fiscal officer” in 2019.

“I’m the first female fiscal officer in the diocese, but most of the other director positions are held by women,” Carolyn says. “Right now I work for a bishop and a vicar general who are very respectful. I don’t believe there is any issue as far as being a woman related to the bishop and the vicar general.”

“I will tell you a brief story about our bishop. When I was telling him we were struggling with being properly respected from a few priests” from another country, Carolyn says, “we had a conversation with our priests from [that country]. And they were all at the table, and I was the only female in the room. And Bishop [Joseph Kopacz] looked to both sides of the table and all the priests and said, ‘I want you to know, when any one of these people sitting next to me are talking with you, they represent me, and so I wish for you to treat them as you treat me.’ And I’ve never had a problem since.”

Carolyn similarly models servant leadership by empowering the women who work alongside her. “I just like the word ‘represent,’” she explains. “I am extremely passionate about working with women in our parishes and schools and increasing their confidence level and their belief in themselves, because I’m constantly working with women who are apologizing and saying, ‘I’m sorry, I didn’t understand. Oh, you must think I’m an idiot.’”

She tells them, “You are doing a great job, and you need to believe in it. And I believe in it. And I’m here to support you.”

For Carolyn, love and kindness are part of living the Eucharist and nurturing her relationship to Christ and the Holy Spirit. “My actions should show what I believe,” she says. “That’s what living the Eucharist means to me: Going back to that place of love and kindness, first, and then good ethics, good character, good transparency, honesty, all of that is living the Eucharist.”

CAROLYN CALLAHAN

Diocese of Jackson

Certified Diocesan Fiscal Managers

Active as of 2024

• Mr. Andrew Brannon, Diocese of Winona-Rochester (2020)

• Mr. Rolla “Mac” Bryant, Diocese of Manchester (2016)

• Ms. Tammy W. DiLorenzo, Diocese of Biloxi (2021)

• Ms. Terry A. Dumas, Diocese of Austin (2017)

• Mr. Robert Hagedorn, Diocese of Covington (2020)

• Ms. Kathleen K. Hogan, Diocese of Joliet (2016)

• Mr. Scott A. Hoselton, Diocese of Fargo (2010)

• Mr. Jack Husack, Archdiocese of Atlanta (2017)

• Mr. Patrick A. Kelly, Diocese of Youngstown (2012)

• Mr. Kevin R. Kiley, Diocese of Fall River (2013)

• Mr. Glenn J. Landry, Diocese of Houma-Thibodaux (2010)

• Mr. Ed Largaespada, Diocese of Pensacola-Tallahassee (2022)

• Mr. Charles J. Lawrence, Diocese of Boise (2016)

• Ms. Leticia Q. Macias, Diocese of El Paso (2012)

• Ms. Cynthia Martin, Diocese of Fresno (2015)

• Mr. Michael J. McGee, Diocese of Richmond (2013)

• Mr. Brian McQuade, Archdiocese of Oklahoma City (2023)

• Ms. Rose Michalec, Archdiocese of Galveston-Houston (2017)

• Ms. Sheila Murray, Diocese of Greensburg (2015)

• Mr. Liam O'Connor, Archdiocese of Washington (2024)

• Ms. Shirley Pajanor, Diocese of San Diego (2016)

• Mr. David A. Reed, Diocese of Toledo (2016)

• Ms. Jodi Rippon, Diocese of Rockford (2017)

• Ms. Kimberly South, Diocese of Birmingham (2019)

• Ms. Debra C. Swisher, Diocese of Lexington (2012)

• Ms. Theresa Tate, Diocese of Dodge City (2024)

• Ms. Kathy Tomasik, Diocese of Gary (2023)

• Mr. Bradley J. Wilson, Archdiocese of Atlanta (2010)

Happy Advent from the DFMC!

Thank you for helping to make 2024 a year of historic success for the DFMC Conference. These past 12 months have been busy ones for all of us, with so many exciting things going on throughout the Church in North America and beyond. This year we reviewed and republished the CPE-granting self-study courses on the DFMC website, presented more CPE-granting webinars than ever before, and grew our diocesan and eparchial active membership to its largest compliment ever. Our thriving professional association is poised to reach new heights in 2025!

Below and attached is your 2025 DFMC membership renewal information. Despite the price increases that you have seen virtually everywhere else in recent years, I am pleased to share that once again this year, there will be no increase in DFMC annual dues for 2025. We endeavor to elevate and broaden the benefits of the DFMC association while freezing member costs as much as possible, passing along savings we generate through fundraising and implementation of management efficiencies directly to you.

DFMC dues are paid per diocese, but the benefits are enjoyed by each individual staff member. This is a great time of year for each man and woman on the finance staff to make sure contact information is up to date and current. Also, remember to mark your calendar for DFMC 2025 in Philadelphia, Pennsylvania, September 28th through October 1st!

On behalf of our whole management team here at DFMC, I wish you peace and joy in this Christmas Season. May each of us resemble the Faith and certainty of the Magi, following the Star and keeping central the true meaning of Christmas.

God Bless,

John Matthew Knowles, J.D. Executive Director

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Valuable Insight to Help You Change Lives

Today, there are countless complex regulatory, accounting, and tax requirements — and they are constantly changing.

With over 50 years of serving religious and nonprofit organizations, we provide tailored strategies to help your diocese thrive in a changing world.

Federal Litigation

Denying Government Grant to Religious Group Because It Requires Employees to Subscribe to Statement of Faith Likely Violates Free Exercise Clause

71Five is a nonprofit, Christian ministry that provides services and mentoring to at-risk youth. The group, whose name derives from Psalm 71:5 (“Lord God, … I have trusted you since I was young”), operates youth centers in two southern Oregon counties “where students can have a safe and supportive place to hang out and develop meaningful relationships” and enjoy free meals and team activities. 71Five provides voluntary Bible studies, one-to-one visits and mentoring, and group discussions for youths in detention centers, group homes, and emergency shelters. The group serves youths of all backgrounds regardless of their faith but requires its employees and volunteers to subscribe to a statement of Christian faith.

Oregon requires grantees to certify that they do not discriminate on the basis of protected categories, including religion, in either the delivery of services or employment practices. Upon learning that 71Five requires its employees to subscribe to a statement of faith, Oregon canceled $410,000 in grants to the group, asserting that this requirement violates the certification rule.

71Five challenged the cancellation of its grants on free exercise and other grounds. The district court denied relief. 71Five appealed to the Ninth Circuit and, in that court, moved for a preliminary injunction while the appeal is pending.

The Ninth Circuit granted the motion, concluding that 71Five is likely to prevail on its free exercise claim.

It is a bedrock free exercise principle, the Ninth Circuit explained, that the government may not treat comparable secular activity more favorably than religious exercise. That is exactly what happened here:

Ophelia’s Place and Girls Inc. only serve girls or those identifying as girls, even though the Certification Rule states that a group cannot discriminate based on gender in providing services. The Black Parent Initiative only serves African and African American families, despite the Certification Rule’s prohibition on race-based distinctions. And Adelante Mujeres only serves Latina women and families in violation of the Certification Rule’s prohibitions on gender and race-based discrimination. Yet the state continues to fund these groups while it has revoked 71Five’s grants. –M.M.

Practice Point: Most employment nondiscrimination laws have exceptions, triggering the free exercise requirement for a religious exemption as happened in this case. But is that the only available legal theory? Every group— secular or religious—hires people who agree with it, especially as to its core mission. Does it serve any legitimate government interest to bar a religious group from hiring people who share its religious convictions? And even if a legitimate government interest exists, does such a legal bar undermine the right of church autonomy or infringe upon other constitutional rights (e.g., rights of association and speech) even when the ministerial exception (one particular application of the right of church autonomy) is not implicated?

See: Youth 71Five Ministries v. Williams, No. 24-4101, 2024 WL 3749842 (9th Cir. Aug. 8, 2024).

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Title IX Religious

Exemption Does Not Violate Establishment or Equal Protection Clauses

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance. The prohibition does not apply to “an educational institution which is controlled by a religious organization if the application of [the prohibition] would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a)(3).

A group of students challenged the religious exemption, claiming that it violates the Establishment and Equal Protection Clauses. The district court rejected both claims and dismissed the case.

The Ninth Circuit has now affirmed.

Establishment Clause

The Supreme Court has abandoned Lemon in favor of an historical approach to the Establishment Clause. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). The district court therefore erred in applying the Lemon test, but its decision to dismiss plaintiffs’ Establishment Clause was correct for other reasons. The “history of tax exemptions near the time of the Founding”—the closest historical analogue to the Title IX exemption—“suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.” In

addition, case law evinces a “continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause.”

Plaintiffs argued that the exemption violates the Establishment Clause by preferring religion over irreligion. But the mere provision of a religious accommodation is not enough to constitute an unconstitutional preference for religion. Otherwise, no religious accommodation could withstand constitutional challenge.

Equal Protection Clause

“Because the exemption would survive the more demanding intermediate scrutiny standard,” there was no need to decide whether it is subject to intermediate scrutiny or rational basis review. The exemption relates “substantially … to the achievement of limiting government interference with the free exercise of religion.” The exemption only applies to educational institutions controlled by religious institutions and only when a particular application would not be consistent with the institution’s religious tenets. It therefore does not violate the Equal Protection Clause. –M.M.

See: Hunter v. U.S. Dep’t of Educ., No. 23-35174, 2024 WL 3998788 (9th Cir. Aug. 30, 2024).

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Federal Litigation

Ministerial Exception Bars French Teacher’s Discrimination and Retaliation Claims Against Jesuit High School

Yves Conseant, a former French teacher at St. Louis University High School (SLUH), sued the school, alleging employment discrimination on the basis of race and retaliation. The district court has now granted summary judgment in SLUH’s favor, finding that Conseant qualified as a minister and that the ministerial exception bars his claims.

The record was replete with references to SLUH’s religious mission and to the important role of teachers in furthering that mission.

SLUH’s faculty and staff handbook states that every member of the faculty and staff “is required to actively participate in effectuating the religious mission” of the school, which is described as being “dedicated to building Christ’s kingdom of truth, justice, love, and peace,” and helping its students “develop compassionate hearts by fostering habits of personal prayer, reflection, and service for the Greater Glory of God.”

According to the handbook, faculty are encouraged to attend morning mass, parent-son liturgies, family masses, class prayer services, and formational activities such as retreats. New teachers attend a three-day Ignatian retreat, and additional spiritual conferences and formation requirements are imposed for second, third, and fourth-year teachers.

The handbook sets out standards for all teachers at the school: In a Jesuit school, faculty and staff maintain positive attitudes towards the formation of “men for and with others.” They seek to integrate the Ignatian vision found in SLUH’s philosophy and mission into all aspects of their work. They demonstrate an appreciation of teaching as ministry and as a means of promoting the Kingdom of God. Faculty and staff assist students in finding God in all things through personal example, teaching, co-curriculars, and interactions with students.

Conseant signed an employment agreement that expressed his “commitment to the goals and ideals of Jesuit education” as set out in the handbook. In the agreement, he promised to perform with professionalism in accordance with the school’s stated philosophy and to “promote and actively support the principles and ideals for which the School stands.”

According to the assistant principal, Conseant was required as a faculty member to attend all-school masses and to participate in the school’s daily prayer exercises. Faculty notes from observations made in Conseant’s classes show that he involved his students in prayer and preparation for Mass.

On this record, the court concluded that the ministerial exception applies:

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When looking at SLUH’s declared Catholic Jesuit mission, its directives to and expectations of its teachers in fulfilling that mission, Conseant’s agreement to perform in acco dance with the school’s religious mission, and evidence that Conseant guided his students in prayer and in preparing for Mass, it is apparent that Conseant performed religious duties for the school and that the school considered him as playing an important part in carrying out its expressed mission. [Citations omitted.]

Because Conseant’s role at SLUH involved agreeing to and actively carrying out the school’s mission in fostering habits in service to the Greater Glory of God and the Catholic Jesuit education, Conseant qualifies as a “minister” for pu poses of the ministerial exception. –M.M.

See: Conseant v. St. Louis Univ. High Sch., No. 4:23 CV 1113 CDP, 2024 WL 3551977 (E.D. Mo. July 25, 2024).

Second Nationwide Injunction Leveled Against Section 1557 Regulations

Section 1557 of the Affordable Care Act forbids discrimination on the basis of sex in health programs and activities that receive federal financial assistance. On May 6, 2024, the Department of Health and Human Services (HHS) issued regulations implementing section 1557. The regulations construe the term “sex” as used in section 1557 to include gender identity.

On July 3, a federal district court in Mississippi issued a nationwide injunction to halt HHS’s enforcement of the regulations insofar as they interpret section 1557 to prohibit discrimination on the basis of gender identity. See Law Briefs (Aug. 2024) (describing the injunction).

The Mississippi order states:

IT IS … ORDERED AND ADJUDGED that the July 5, 2024, effective date of the final rule entitled Nondiscrimination in Health Programs and Activities, 89 Fed. Reg. 37,522 (May 6, 2024) is STAYED nationwide pursuant to 5 U.S.C. § 705, in so far as this final rule is intended to extend discrimination on the basis of sex to include discrimination on the basis of gender identity in the following regulations: 42 C.F.R. §§ 438.3, 438.206, 440.262, 460.98, 460.112; 45 C.F.R. §§ 92.5, 92.6, 92.7, 92.8, 92.9, 92.10, 92.101, 92.206 211, 92.301, 92.303, 92.304.

IT IS FURTHER ORDERED AND ADJUDGED that Defendants are ENJOINED nationwide from enforcing, relying on, implementing, or otherwise acting pursuant to the May 2024 Rule’s provisions concerning gender identity.

Based on a similar challenge in Texas, a federal district court in that state has now issued a second nationwide injunction against the regulations but granted HHS’s request that the injunction be limited only to those regulations specifically challenged by the plaintiffs. The Texas order expressing this limitation, dated August 30, states: [T]he effective date of the May 6, 2024 Final Rule, Nondiscrimination in Health Programs and Activities, 89 Fed. Reg. 37,522 is STAYED nationwide as to only the following sections: 42 C.F.R. §§ 438.3(d)(4), 438.206(c)(2), 440.262, 460.98(b)(3), 460.112(a); 45 C.F.R. §§ 92.101(a)(2) (and all references to this subsection), 92.206(b), 92.207(b)(3)–(5). –M.M.

Practice Point: Both injunctions capture all the provisions set out in 42 C.F.R. Parts 438, 440, and 460, and 45 C.F.R. Part 92, of the final rule that expressly reference gender identity. See 88 Fed. Reg. at 37691-92, 37698-701.

Neither injunction refers by name to the gender identity provisions set out in 45 C.F.R. Parts 147, 155, and 156 of the final rule, see 88 Fed. Reg. at 37703, but the Mississippi injunction captures those provisions by its catch-all reference to “the May 2024 Rule’s provisions concerning gender identity,” and the Texas injunction arguably captures those same provisions insofar as they refer back, at least indirectly, to section 92.101(a)(2) (defining discrimination on the basis of sex to include discrimination on the basis of gender identity). Parts 147, 155, and 156 deal, respectively, with requirements for (including the marketing of) group and individual health plans, standards governing the exchange, and standards relating to issuers of qualified health plans.

See: State of Texas v. Becerra, No. 6-24-cv-00211-JDK (E.D. Tex. Aug. 30, 2024); Tennessee v. Becerra, No. 1:24cv161LG-BWR, 2024 WL 3283887 (S.D. Miss. July 3, 2024).

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Federal Litigation

Catholic Benefits Association and Bismarck Diocese Obtain Preliminary Injunction Against EEOC

Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued regulations construing the Pregnancy Workers Fairness Act (PWFA) to require workplace accommodations for abortion and in vitro fertilization. This year, the EEOC also issued Enforcement Guidance on Harassment in the Workplace that construes Title VII’s prohibition on harassment based on sex to include gender identity and sexual orientation.

On September 23, a federal district judge in North Dakota granted a motion for a preliminary injunction that halts the EEOC’s enforcement of these requirements against the Catholic Benefits Association (CBA) and Bismarck Diocese.

The court concluded that the plaintiffs were likely to succeed in their claim that these requirements violate the federal Religious Freedom Restoration Act (RFRA). The court found that the EEOC had failed to articulate a compelling interest as applied to these issues and these particular plaintiffs, and that the agency’s construction of the PWFA and Title VII was not narrowly tailored to serve such an interest.

The court expresses frustration with the repeated failure of federal agencies to respect religious freedom short of a lawsuit: It is a precarious time for people of religious faith in America. It has been described as a post-Christian age…. One indication of this dire assessment may be the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.

The current suit falls into a long line of cases that should be unnecessary in a country that was built on the concept of freedom of religion. Unfortunately, these cases are essential for faithful individuals where government mandates run counter to core religious beliefs. One would think after all this litigation, the government would respect the boundaries of religious freedom. Instead, it seems the goal may be to find new ways to infringe on religious believers’ fundamental rights to the exercise of their religions. *

This challenge to religious liberty is a reminder of the danger of government action that is clearly anti-religion. It should not take a legal challenge for the Agency to stop violating the constitutional rights of Americans. Wisely, our founders provided a separate but equal branch to keep this lawlessness in check.

This case is not hard.… The CBA is likely to succeed on the merits of the RFRA violation claim because the law forces members to choose between expressing sincerely held beliefs and compliance. This harm is irreparable and upholding Constitutional rights always weighs in favor of the public interest and an injunction. The Agency should have known it would not be allowed to force individuals to violate sincerely held religious beliefs.

The court’s order enjoins the EEOC from (a) interpreting or enforcing the PWFA and implementing regulations against the CBA and Bismarck Diocese in a manner that would require them to accommodate abortion or infertility treatments contrary to the Catholic faith, or to speak or refrain from speaking on these issues, (b) interpreting Title VII in a manner that would require the plaintiffs to speak in favor of abortion, infertility treatments, or gender transition when contrary to the Catholic faith, or to speak or refrain from speaking on these issues, (c) requiring the plaintiffs to use pronouns inconsistent with a person’s biological sex or to allow persons to use private spaces reserved for the opposite sex, or (d) initiating any investigation into claims that a plaintiff has violated the PWFA or Title VII in the manner noted above or issuing a right to sue letter on such a claim. –M.M.

See: Catholic Benefits Association v. Burrows, No. 1:24-cv-00142 (D. N.D. Sept. 23, 2024).

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On October 15, the USCCB and Tennessee Catholic Conference filed a joint amicus brief in the U.S. Supreme Court urging the Court to uphold a state law that forbids the prescription and use of puberty blockers and hormones, as well as surgical interventions, for minors suffering from gender dysphoria. The federal government, as petitioner, is arguing that the challenged law draws a sex-based classification that triggers intermediate scrutiny and, subjected to such scrutiny, violates the Equal Protection Clause. The Sixth Circuit had previously upheld the law, and the Supreme Court has now granted certiorari on the equal protection question.

The amicus brief’s Summary of Argument reads as follows:

Catholics believe that God created humans in his own image with both a body and a soul, which are intrinsic to human persons and a gift from God, our creator. God’s created order also includes the fundamental sexual differences between men and women, which God has willed and deemed good. Catholics believe humans must act consistently with God’s created order, including when considering medical interventions affecting the human body.

Transgender body manipulation, whether through the use of puberty blockers, hormone treatments, or surgical interventions, attempts to alter the fundamental sexual differences between men and women and is incompatible with the respect due to God’s created order. Transgender body manipulation objectifies the body for a person to use as he or she pleases, often based on a false belief that the body is “wrong” or a “mistake” to be corrected. It also sacrifices healthy bodily functions and organs for reasons other than to serve the body as a whole. Accordingly, transgender body manipulation is immoral and contrary to God’s will. This teaching arises from longstanding beliefs about the human person (beliefs that, in fact, predate the Catholic Church itself), which are accessible to human reason as well as divinely revealed, and which do not stem from animus or prejudice of any kind.

Amici seek to ensure that the Catholic Church and its faithful can continue to live according to these truths. Yet Petitioner would have this Court hold that longstanding Catholic beliefs about men, women, and God’s created order are presumptively suspect and that these beliefs inherently target a particular group based on animus or prejudice. That is not true, and this Court should not enshrine such a false concept in the Constitution. Nor should the Court do so while attempting to carve out room for religious adherents to continue living according to their faith. The Court took that approach in Obergefell, Masterpiece Cakeshop, and Bostock , but despite these assurances, Catholic and other Christian faithful have faced a litigation onslaught in which these holdings are weaponized to attack their beliefs, practices, believers, and institutions.

Respectfully, amici urge the Court to affirm the decision below. The entire brief is available here

See: United States v. Skrmetti, No. 23-477 (U.S.) (pending).

Federal Litigation

USCCB and Allies Urge Supreme Court to Take Up Religious Liberty Case

On October 15, the Christian Legal Society, Assembly of Canonical Orthodox Bishops of the United States of America, and USCCB filed a joint amicus brief in the U.S. Supreme Court urging the Court to grant the cert petition of Apache Stronghold in a case involving the right of religious worship.

The question presented is whether the government substantially burdens religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the Free Exercise Clause, when it singles out for physical destruction a site that is sacred to indigenous peoples, forever ending their religious rituals on that site.

The amicus brief’s Summary of Argument reads as follows:

For time out of mind, Western Apaches have practiced their religion at Oak Flat, an indigenous sacred site on federal land in Arizona. Oak Flat provides Western Apaches a corridor to communicate directly with their Creator, and it is the only place on earth where they can perform certain ceremonies that are essential to their religion.

But the government’s planned transfer of Oak Flat to Resolution Copper to create a copper mine would collapse the site into a crater “approximately 1.8 miles in diameter and ... between 800 and 1,115 feet deep.” Apache Stronghold v. United States, 101 F.4th 1036, 1047 (9th Cir. 2024). It is undisputed that this would obliterate Western Apache religious practice there.

The urgent question presented is whether such obliteration would “substantially burden” Western Apache religious exercise under the Religious Freedom and Restoration Act (RFRA), 42 U.S.C. § 2000bb, which requires the government to justify such burdens on religious exercise by showing a compelling interest advanced in the least restrictive manner—a test established in Sherbert v. Verner, 374 U.S. 398 (1963). The answer is a resounding yes.

On en banc review at the Ninth Circuit, six judges led by Chief Judge Murguia observed that the ordinary meaning of “substantial burden” under RFRA includes the destruction of Oak Flat— triggering the need for the government to justify itself. And although a separate and controlling en banc opinion of six judges led by Judge Collins agreed with that observation, they crafted a carveout to the phrase’s ordinary meaning—and thus to RFRA’s protection—for cases involving “the Government’s management of its own land and internal affairs.” Apache Stronghold, 101 F.4th at 1053. Absent this Court’s review, therefore, Oak Flat is set for destruction without any judicial consideration of the strength of the government’s interest or the less catastrophic alternatives available to meet its needs.

The controlling opinion effectively based its carveout on a two-part premise. First, it said that an ordinary-meaning construction does not apply based on the context of RFRA’s adoption. Second, the opinion claimed that this Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)—a case predating RFRA—had assigned “substantial burden” a limited meaning for challenges under the Free Exercise Clause involving the government’s management of its own land and internal affairs. In that situation, according to the opinion, a burden is not substantial unless it coerces, discriminates, penalizes, or denies equal rights. And, applying this narrow definition, the Ninth Circuit held that destroying Oak Flat is not a substantial burden.

Amici ask this Court to address and rectify the Ninth Circuit’s mistaken understanding of RFRA and Lyng—an important question of federal law on which the future of Native American religious practice depends. They make this request for three reasons. First, the ordinary meaning of “substantial burden” in RFRA must apply unless Congress stated otherwise—which it did not. Second, Lyng provides no definition of “substantial burden” for the simple reason that it regarded the road-building project there as a neutral and generally applicable law wholly exempt from the Sherbert test, per this Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990)—a decision that RFRA rejected. In other words, because the Court in Lyng had no occasion to apply the substantial-burden test, the Ninth Circuit erred in foisting its analysis based on Smith onto a statute intended to repudiate Smith. Finally, the Ninth Circuit’s purportedly exclusive list of four types of substantial burdens is underinclusive and assumes an unrealistically narrow vision of free exercise as envisioned in RFRA and the First Amendment.

The entire brief is available here.

See: Apache Stronghold v. United States, No. 24-291 (U.S.) (petition for certiorari pending).

Supreme Court Refuses to Disturb Fifth Circuit Decision Permanently Enjoining HHS from Requiring Hospitals to Perform Abortions

After the Supreme Court overturned Roe v. Wade, the U.S. Department of Health and Human Services (HHS) issued guidance stating that the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, a statute enacted in 1986, requires hospitals to perform an abortion when the attending physician deems the procedure necessary to stabilize a pregnant woman in an emergency.

Disputing this novel interpretation of EMTALA, the State of Texas, the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), and the Christian Medical and Dental Associations (CMDA) sued HHS to enjoin its guidance. A federal district court in Texas agreed with the plaintiffs and permanently enjoined HHS from enforcing the guidance in Texas or against AAPLOG or CMDA members anywhere.

A three-judge panel of the Fifth Circuit affirmed. Texas v. Becerra, 89 F.4th 529 (5th Cir. 2024). The court of appeals noted that the Medicare Act, of which EMTALA is a part, prohibits HHS from directing any specific type of treatment in its administration of Medicare, 42 U.S.C. § 1395, and that EMTALA itself does not require any specific stabilizing treatment except one: delivery of the unborn child. 42 U.S.C. § 1395dd(e)(3)(A). The inclusion of one stabilizing treatment (delivery) means that other interventions (such as abortion) are not mandated. And the HHS guidance is unlawful for yet another reason—it was not promulgated through notice and comment rulemaking as required under the Administrative Procedure Act. See Law Briefs (Feb. 2024) (describing the Fifth Circuit’s opinion in greater detail).

HHS petitioned for certiorari.

On October 7, the Supreme Court denied the petition. As a result, the Fifth Circuit’s decision and the permanent injunction issued by the district court remain in effect. The injunction protects only the plaintiffs, and it protects them only against enforcement (or other) action by HHS.

Related Idaho Litigation

Separate litigation is pending that pits an Idaho law banning abortion against the HHS guidance.

A federal district court in Idaho sided with HHS and issued a preliminary injunction halting enforcement of Idaho’s abortion ban in emergency circumstances. When the Ninth Circuit turned down a request to stay the injunction pending appeal, Idaho and state officials applied for an emergency stay in the Supreme Court. On January 5, 2024, the Supreme Court granted the applications, stayed the lower court injunction, and, treating the applications as petitions for certiorari before judgment, granted certiorari.

The case was fully briefed and argued in the Supreme Court. On June 27, 2024, just days before the close of the 2023 Term, the Court issued a one-sentence order vacating the January 5 stay and dismissing the writs of certiorari as improvidently granted, thereby allowing the district court’s preliminary injunction to go back into effect and returning the case to the lower courts. Moyle v. United States, 144 S. Ct. 2015 (2024). Five justices (Roberts, Barrett, Kavanaugh, Kagan, and Sotomayor) voted to dismiss the writs.

Six justices (the five just mentioned plus Justice Jackson) voted to dissolve the Court’s January 5 stay.

The Court issued no opinion. Accompanying the June 27 order, however, were a handful of separate opinions, none of which garnered a majority. These opinions, discussed in greater detail in the August 2024 edition of Law Briefs, break down briefly as follows:

•Three justices (Kagan, Sotomayor, and Jackson) agreed with HHS that EMTALA preempts Idaho law to the extent that the latter, in certain “rare” cases, forbids an abortion when there is a serious risk to the mother’s health.

•Three other justices (Alito, Thomas, and Gorsuch) concluded that HHS’s reading of EMTALA is “plainly unsound” because the statute by its terms protects unborn children. At a minimum, EMTALA does not unambiguously require an abortion as would be necessary to survive a Spending Clause challenge.

•The three remaining justices (Barrett, Roberts, and Kavanaugh) concluded that intervening developments, including concessions made by HHS in briefing and oral argument, had so narrowed the disagreement between HHS and Idaho as to warrant returning the case to the lower courts.

The Idaho case is now before the Ninth Circuit, which has scheduled oral argument before the en banc court for the week of December 9. –M.M.

Practice Point: In addition to the defects noted above, the HHS guidance conflicts with (a) the Weldon amendment, which forbids the federal government and any state government receiving federal funds to discriminate against hospitals that decline to perform abortions, and (b) HHS’s own previous interpretation of EMTALA. During the Obama administration, HHS said that there is no conflict between EMTALA and federal conscience laws like Weldon. 76 Fed. Reg. 9968, 9973-74 (Feb. 23, 2011) (noting that these laws have existed “side by side” for decades and that “repeals by implication are disfavored”).

See: Becerra v. State of Texas, No. 23-1076, 2024 WL 4426546 (U.S. Oct. 7, 2024) (denying certiorari).

Federal Litigation

Court Denies State’s Motion to Reopen Archdiocesan Bankruptcy Case and Allow Access to Confidential Claims of Abuse Survivors

In November 2015, the bankruptcy court confirmed the Archdiocese of Milwaukee’s chapter 11 plan, and in June 2016 the case was closed.

More than seven years later, and over 12 years after the court entered confidentiality orders to protect the identities and claims of abuse survivors, the Wisconsin Department of Justice moved to reopen the case and to grant it access to copies of all claims of abuse survivors, including the sealed proofs of claims, objections to those claims, and briefing and rulings on the objections. The state’s request was part of its Clergy and Faith Leader Abuse Initiative, launched in 2021 with the asserted goal of “provid[ing] victims and survivors with an independent and thorough review of the sexual abuse committed by clergy and faith leaders in Wisconsin, no matter when that abuse occurred.”

The Archdiocese objected to the motions, observing, among other things, that abuse survivors filed sealed proofs of claims after the court ordered that they be received and maintained in the strictest confidence, under permanent seal. The court agreed and denied the motions.

“The sheer magnitude of the State’s request,” the court wrote, “is staggering, and that is without even considering the substantial logistical hurdles that would need to be cleared (and the monetary and other costs that would need to be incurred) to provide Abuse Survivors with adequate notice of the State’s request in this complex case that has been closed since 2016.”

“Even ignoring the logistical difficulties and costs of giving (or merely attempting to give) notice to Abuse Survivors of the State’s motions, if the court were to grant the State the access it seeks, the clerk would have to devote untold hours of staff time to a painstaking review of every page of every document filed under seal in this case … and somehow provide all of (and only) the correct documents to the State in a secure manner, leaving the court to somehow supervise the State’s use of those documents … for purposes wholly unrelated to the long-concluded case- and claimsrelated processes for which those documents were filed and limited access to them was granted in the first place. The burden of justifying all of this is an unusually and exceedingly heavy one, and … the State does not come close to carrying that burden.”

A court cannot reopen bankruptcy proceedings after a final decree unless there is cause to reopen under section 350(b) of the Bankruptcy Code. Section 350(b) provides: “A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” Nothing in the record suggests that there are any assets to administer and the debtor is not seeking relief, “so the only possible basis for reopening the case must be some ‘other cause,’” such as correction of errors, amendments necessitated by unanticipated events that

frustrate the plan’s implementation, or the need to enforce the plan and discharge. As used in section 350(b), in other words, the phrase “other cause” means some bankruptcy purpose.

The state, however, seeks access to the abuse survivors’ sealed records for its own purposes: “to assess the accuracy of published lists of credibly accused faith leaders”; “for investigative leads, such as determining the identify of an unidentified abuser”; and to “inform the content of the Initiative’s final report.”

“None of this,” the court wrote, “has anything to do with this long-closed bankruptcy case.”

“The State may be suspicious of the reorganized debtor, and it may think it could be useful to review the sealed documents at issue here, but that falls well short of ‘cause’ for reopening a complex bankruptcy case nearly a decade after it ended.”

Especially dismaying was the state’s “significant delay in seeking to reopen this case.” That delay—“especially when combined with both [the state’s] persistent failure, for nearly thirteen years, to assert or take any action whatsoever to protect whatever interest it believes it has in accessing or reviewing the sealed filings … and the resulting costs of and obstacles to giving Abuse Survivors notice of and an opportunity to be heard on the State’s request for access to those filings—weighs decisively against reopening this case.”

Even apart from the delay in seeking to reopen, the state proffered no compelling reason to do so or to allow it access to confidential files:

The State … essentially asks the court to devote substantial time and other resources to facilitating an unbounded and roving investigation (or order the reorganized debtor to do that), for no particular reason that the court can discern (and certainly not for any reason that has anything to do with this bankruptcy case), contrary to this court’s assurances and consistent observation of confidentiality with respect to information provided by the Abuse Survivors that they could have but nearly unanimously declined to make available to the public.

–M.M.

See: In re Archdiocese of Milwaukee, No. 11-20059, 2024 WL 4355563 (Bankr. E.D. Wis. Sept. 30, 2024).

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West Virginia Law Banning Church Incorporation

Violates Free Exercise Clauses

Article VI, section 47 of the West Virginia Constitution provides that “[n]o charter of incorporation shall be granted to any church or religious denomination.” West Virginia is not the only state that prohibits churches from incorporating. Virginia’s constitution includes a nearly identical provision, but it was struck down on free exercise grounds in Falwell v. Miller, 203 F.Supp.2d 624 (W.D. Va. 2002).

After the decision in Falwell, West Virginia began issuing certificates of incorporation to churches despite section 47. This practice continued for 20 years. In 2022, voters defeated a ballot measure that would have rescinded section 47. After the vote, the West Virginia Secretary of State, citing the state’s ban on incorporation of churches, denied an application to incorporate filed by Hope Community Church.

The church sued to challenge the denial of its application on free exercise grounds and moved for judgment on the pleadings. The Secretary of State filed a response to the motion stating that he did not oppose the motion. The court nonetheless considered the merits, noting that the parties’ agreement to an issue does not necessarily bind the court, particularly when it is tasked with determining whether a state constitutional provision violates the federal constitution.

Section 47 is neither neutral nor generally applicable, the court concluded, because “it denies incorporation to a defined class of individuals solely based upon their religion.” It is therefore subject to strict scrutiny, which it fails to satisfy. The Secretary of State did not advance any governmental interest, let alone a compelling one—and the court found no compelling interest—that would support the state’s refusal to incorporate a church or religious denomination.

The court granted the church’s motion for judgment on the pleadings and enjoined the state from refusing to grant it a certificate of incorporation. –M.M.

See: Hope Community Church v. Warner, No. 3:23-CV-231, 2024 WL 4310866 (N.D. W.Va. Sept. 26, 2024).

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Regulatory Issues

Government May

Not Assess the Correctness or Internal Consistency of Individual’s Religious Beliefs

Michael Ray Fuqua is an inmate in the Arizona state prison system. He describes himself as an “adherent to the Christian-Israelite beliefs,” which he asserts are a subset of the “Christian Identity” faith. A central tenet of this faith, Fuqua says, is that persons of European descent are descendants of the ten northern tribes of Israel. Based on these religious convictions, Fuqua asked the prison chaplain, Jefferey Lind, to place him on a list of those who observe the Passover and Feast of Unleavened Bread subject to the dietary restrictions of those religious holidays.

Lind denied Fuqua’s request for a dietary accommodation after meeting with him. At the meeting, Lind allegedly told Fuqua that his religious beliefs were “false,” that the Christian Identity’s teachings about descent from the tribes of Israel are “wrong,” and that the materials he had submitted to Lind did not support his request to eat kosher or Passover meals.

Fuqua brought a section 1983 action against Lind on free exercise and other grounds. The trial court granted summary judgment in favor of Lind.

The Ninth Circuit has now reversed and remanded for further proceedings:

Here … a rational trier of fact could find that Fuqua’s religious beliefs were sincerely held. In addition, on this record, a reasonable factfinder could further conclude that … Lind failed to stay narrowly focused on the sincerity of Fuqua’sreligious beliefs. Instead, a trier could readily find that Lind refused Fuqua’s dietary request because he thought (1) that Fuqua’s fundamental religious premises were false and (2) that, as a theological matter, Fuqua’s claimed obligation to observe Passover dietary restrictions did not follow from Fuqua’s own religious premises.

The Free Exercise Clause forbids the government to decide the truth, falsity, or consistency of a person’s religious beliefs. Fuqua has plausibly alleged that that is precisely what the government did here. –M.M.

See: Fuqua v. Raak, No. 21-15492, 2024 WL 4645493 (9th Cir. Nov. 1, 2024).

USCCB Submits Comments on Proposed HHS Regulation that Could Impede Enforcement of State Abortion Laws

On October 2, the USCCB filed comments on a proposed regulation, issued by the Department of Health and Human Services (HHS), on sharing electronic health records. In its comments, the USCCB opposed the proposed regulation insofar as it would make it more difficult to obtain access to health records for what HHS calls “reproductive health care,” including abortion. Impeding access to such records, the USCCB explained, could deter civil and criminal investigations into violations of state and federal laws regulating abortion and other procedures. The USCCB also opposed the proposed standardization of terminology relating to “sexual orientation,” “gender identity,” and the use of “pronouns” in medical health records, and urged HHS to refrain from arbitrary classifications on this basis.

Practice Point: In June 2023, the USCCB filed comments on a related regulatory proposal issued by HHS under the Health Insurance Portability and Accountability Act (HIPPA). The 2023 comments raised similar concerns about the possible deterrent effect of the then-proposed HIPPA regulation on investigations into state law violations on abortion. The now-finalized HIPPA regulations are the subject of a pending court challenge. Purl v. HHS, No. 2;24-cv-00228 (N.D. Tex.) (complaint filed Oct. 21, 2024).

See: 89 Fed. Reg. 63498 (Aug. 5, 2024) (proposed HHS regulation on sharing electronic health records).

LAW BRIEFS

USCCB Opposes HHS’s Interpretation of Federal Nondiscrimination Statutes

In 2020, the Supreme Court held that an employer violates the sex discrimination prohibition of Title VII if it “fires an individual for being homosexual or transgender.” Bostock v. Clayton County, 590 U.S. 644, 649. On October 2, purporting to rely on Bostock, HHS issued an interim final rule that interprets 13 various nondiscrimination statutes to prohibit discrimination on the basis of sexual orientation or gender identity (SOGI) even though the statutes themselves say nothing about SOGI and Bostock by its terms applies only to Title VII.

On October 30, the USCCB filed comments opposing the application of Bostock to these 13 statutes.

See: 89 Fed. Reg. 80055 (Oct. 2, 2024) (HHS interim final rule interpreting federal nondiscrimination statutes).