The ruling that reinstated the lawsuit of a former Latter-day Saint seeking the return of his tithing donations is a dangerous intrusion into internal religious issues that would cause constitutional chaos, a diverse group of religions say in a friend-of-the-court brief.

The brief from Jewish, Baptist, Methodist, Lutheran, Seventh-day Adventist denominations and other organizations says the August ruling in the Ninth Circuit Court of Appeals violates the First Amendment and threatens all denominations, which “now risk a deluge of dubious lawsuits over their use of donated funds.”

The group of religions took specific issue with the court saying the issue at hand was secular, not religious, which the brief said was an attempt to do an end run around First Amendment constraints.

“If a court can reframe an inquiry into the meaning of a religious term, as indicated by a church’s highest ecclesiastical leader, as purely ‘secular’ in nature, then there is no sacred ground left under the First Amendment for religious organizations,” the brief said.

The faith organizations filed the brief Monday with the Ninth U.S. Circuit Court of Appeals in San Francisco.

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California businessman James Huntsman filed a federal lawsuit in March 2021 asking for the return of more than $5 million in tithing he said he donated to The Church of Jesus Christ of Latter-day Saints over a quarter of a century.

A U.S. District Court judge tossed out Huntsman’s lawsuit in September 2021.

But a 2-1 vote in August by a three-judge panel of the Ninth Circuit reversed that decision and reinstated Huntsman’s suit, saying that the issue in question was secular, not religious.

The brief homed in on that part of the decision.

“The majority determined that the questions it faced were ‘secular,’” the brief said. “Yet the question it faced was the meaning of a religious term. And if that is ‘secular,’ then nothing is sacred.”

The denominations who filed the amicus brief said labeling the issue secular was a sleight of hand to get around the First Amendment. They called it an enormous threat to religious organizations throughout the Ninth Circuit, which includes California, Oregon Washington, Alaska, Hawaii, Arizona, Nevada, Idaho and Montana.

“Under the panel’s logic, every religious dispute can be recharacterized as secular, gutting constitutional protections for religious entities and societies,” the amicus brief said.

“That is why the Supreme Court has consistently refused to allow courts to hide theological elephants in secular mouseholes,” the brief added.

The Church of Jesus Christ appealed the ruling by the two judges last month. The church is seeking an en banc review or rehearing before 11 judges of the Ninth Circuit. The religions that co-signed the amicus brief also requested a rehearing.

The amicus brief quoted the ruling of a previous en banc review of another case by the Ninth Circuit in 2010, when the larger panel of judges declared that the First Amendment “prohibits government from intervening in a religious dispute.”

What does James Huntsman allege?

Huntsman’s suit said that late church President Gordon B. Hinckley and other senior Latter-day Saint leaders misrepresented the financing of the City Creek Mall project when they said tithing funds were not used.

“In fact, tithing was not used on the City Creek project,” a church spokesman said when Huntsman filed the lawsuit. “As President Hinckley said in the April 2003 general conference of the church, the funds came from ‘commercial entities owned by the church’ and the ‘earnings of invested reserve funds.’ A similar statement was made by President Hinckley in the October 2004 general conference.”

The 9th Circuit panel in August held that the ecclesiastical abstention doctrine did not apply because the questions regarding the fraud claims were secular and did not implicate religious beliefs about tithing itself.

What did the church say in its appeal

“Under the panel’s decision, any disillusioned former adherent who finds his way to the 9th Circuit can sue for a refund and attempt to get civil authorities to label their former church a liar,” lawyers representing the church wrote in its appeal. “It is hard to imagine a greater threat to religious liberty or a better reason to grant en banc review.”

What does the amicus brief from other faiths argue?

The amici (friends) represent about 24 million Americans of faith who are not in theological agreement with Latter-day Saints about tithing, the brief said.

But if the panel’s decision stands, it added, “no religious organization within the Ninth Circuit — the nation’s largest circuit, both geographically and demographically — will be safe from judicial or jury intrusion into internal religious issues.”

The panel’s decision represents a broad threat, the brief said, because it would require that every time a disgruntled former church member or employee raised an allegation, a judge or jury would be asked to decide who had more theological understanding, the religious organization or the person.

“And, in attempting to redefine a theological dispute as a secular one, the panel misunderstood the very type of inquiry in which it engaged: interpreting the words of the church’s highest spiritual leader who was, in turn, providing a doctrinal interpretation of religious term based on church scripture and his theological understanding

“It is hard to see an issue that is less secular than that,” the brief said.

President Hinckley declared that “tithing funds” and “reserve funds” were not the same, and that tithing funds were not being used on the mall project, the brief said.

“The Constitution prohibits any further inquiry, even if there are secular dimensions to the case, because the ultimate inquiry is a theological one,” it said.

The amicus brief also took issue with the panel’s conclusion that it was common usage in the church to consider tithing principal and earnings on tithing principal to be “tithing funds.”

“How did the majority determine this ‘common usage?’” the brief asked. “The only evidence cited was usage by some employees in a single church-directed entity that only handled financial matters.”

The real questions, the brief said, are whether tithing is still called tithing after receipt by the religious organization, and if tithing refers just to the original donation or any interest that may accrue afterward.

“Both across faiths and within faiths, there are a host of opinions on these issues,” the brief said. “Yet somehow the panel majority deemed a district judge or jury to possess sufficient theological prowess to answer the last of these questions, which is the religious dispute at the heart of this case. In so doing, however, the panel ran through the guardrail of the First Amendment — a collision the majority’s decision cannot survive.”

The brief said the panel’s decision ran through that guardrail in three ways:

  • “First, it authorizes a jury or judge to decide what amounts to an intra-church dispute between the top leader and employees of The Church of Jesus Christ of Latter-day Saints over the meaning of tithing.
  • “Second, and perhaps alternatively (it’s not clear), the decision authorizes a government decisionmaker to determine which of two possible religious meanings of tithing church leaders were invoking when they made the statements challenged by Huntsman.
  • “And third, the decision allows a jury to interpret the church’s scripture.

“In all three respects, the decision gravely offends the First Amendment.”

Who signed the amicus brief supporting the Latter-day Saints?

  • Agudath Israel of America.
  • The Christian and Missionary Alliance.
  • The Ethics and Religious Liberty Commission of the Southern Baptist Convention.
  • The California Southern Baptist Convention.
  • The General Conference of Seventh-day Adventists.
  • The General Council on Finance and Administration of The United Methodist Church.
  • The International Church of the Foursquare Gospel
  • The Jewish Coalition for Religious Liberty.
  • The Lutheran Church-Missouri Synod.
  • The Union of Orthodox Jewish Congregations of America.