‘Tithing’ or ‘reserve funds’? The state shouldn’t try to interpret the language of faith-based institutions
In the recent Federal Court of Appeals decision to reinstate James Huntsman’s lawsuit, two members of the three-judge panel asserted that this was a solely secular dispute. A closer look suggests the opposite.
“Give to the emperor the things that are the emperor’s and to God the things that are God’s,” so Jesus famously told people trying to trap him with a loaded political question. Christians and other believers have sought to follow this injunction in the centuries since His pronouncement, deferring to the state those things which are the legitimate province of government, while making it a first priority to render to God what is God’s, as the source and summit of all things.
In our pluralistic and increasingly secular society, questions not unlike the dilemma proposed to Jesus are arising with ever more frequency. Sometimes these conflicts are obvious, such as a requirement that physicians provide medical services that are contrary to their conscience. But often they can be subtle, involving perennial religious teachings thrust into a context of seemingly secular disputes.
Historically, American courts have sought to avoid involvement in religious controversies, especially in issues of religious doctrine or practice. This legal doctrine of ecclesiastical abstention (or church autonomy) requires courts to refuse to resolve such claims.
The challenge often lies in determining when the doctrine applies — and when it does not.
In 1944, the United States Supreme Court decided the case of United States v. Ballard, in which a man claimed to be a divinely inspired healer, but was charged with fraud. That important case established the principle that a jury cannot determine the truth or falsity of sincerely held religious beliefs. Said the Supreme Court:
“The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.”
What that earlier Supreme Court did allow, however, was inquiry into whether someone’s religious belief was sincerely held. A claim of religious motivation does not offer protection if itself is a sham.
That same principle was applied in examinations of doctrine in order to decide property disputes, such as determining which competing group seeking control of church property was adhering more closely to a particular doctrine. These type of disputes are not uncommon as rival factions develop among different groups of believers, much like the people of Ephesus were chastised by Paul because each of them said, “I am of Paul,” or “I am of Apollos,” or “I am of Cephas.”
In cases of such division, the associated property held by the faith group can become the subject of bitter dispute — with state courts frequently bedeviled with the problem of how such cases can be resolved.
In the 1990 case Employment Division v. Smith, the Supreme Court said that courts were not to attempt to distinguish which religious practices were trivial and which were important. The sincerity of the believer as to the importance of following a religious practice is sufficient.
The refusal of a court to adjudicate a claim can involve painful issues, such as whether religious healers can be sued for medical malpractice in attempting to heal children unsuccessfully. While a state statute might require a parent to seek medical help, under Ballard a judge or jury can’t be asked to decide if the healer’s religious methods are malpractice under secular standards.
In the recent Federal Court of Appeals decision Huntsman v. Corporation of the President of the Church of Jesus Christ of the Latter-Day Saints, two members of a three judge panel agreed with the plaintiff — thereby asserting that this was a solely secular dispute and not a matter of “internal church disputes involving matters of faith, doctrine, church governance, and polity.”
In doing so, these justices explicitly rejected the applicability of Ballard and similar cases. Although the court found that this case is an example of a secular dispute where the abstention doctrine is inapplicable, a closer look suggests the opposite.
For instance, the court acknowledged tithing is a commandment of the church, clearly making it a religious doctrine. Yet and as noted, courts are not to undertake an analysis of whether a particular doctrine, such as tithing, is central or ancillary to religious belief.
However, the court took the position that it understood for purposes of a fraud claim the secular meaning of the term tithing funds, otherwise it would have had no basis to conclude that there was a potentially fraudulent statement. At the same time, the court said that other, related concepts at issue, such as the meaning of the term “reserve funds,” were so undefined as to be akin to a foreign language.
Once it is acknowledged that the concept of tithing is doctrinal, it follows the exact definition of tithing funds and its relationship with linked concepts, such as reserve funds, are within that doctrinal realm, and can only be fairly understood within that framework. As the dissent pointed out, the plaintiff was familiar with the teachings, pronouncements and tenets of the faith. To follow the majority’s analogy, while both parties are fluent in the foreign language of the church, the court is not, which will leave it ill-equipped to adjudicate the claim.
This, then, speaks to the wisdom of the abstention doctrine, both generally and in the context of this case. The court was trying to puzzle out a just result by seeking to supply a secular meaning to both a language and a set of rules and principles that may have looked familiar, but were not of a secular nature. They belonged to the world of a church, an institution with an orientation and belief system entirely its own, not the secular world of Caesar, with its separate values and vocabulary.
The Becket Fund for Religious Liberty filed an amicus (friend of the court) brief, and made a similar argument. As a spokesman said in an article about the group’s position in the case, “Even though outsiders may think a particular church’s beliefs are weird or nonsensical, churches are entitled to hold those beliefs, to raise money from people based on those beliefs, and to try to fulfill their religious missions as they see fit.”
While not directly relevant to the decision of the court on the legal issue, another argument in favor of the abstention doctrine is that the parties involved are often in fundamental disagreement about issues of church teachings which not infrequently is the underlying cause of the dispute. The matter before the court is simply the hook that is used by one of the parties to draw in the secular authorities to administer what is perceived to be the appropriate punishment that only the government can dish out. One senses that this might be the case here.
Harkening again back to the time of Caesar, there was a considerably more extreme case involving an otherwise obscure provincial official in a backwater province, where the religious elite brought before him charges against someone who they claimed had violated their sacred laws. Although the official correctly concluded that the defendant was innocent of any secular offense, he allowed himself to be intimidated into adjudicating the matter and punishing the defendant as requested. Pontius Pilate would not be known in infamy had he followed his better instincts and refused to be a secular authority who allowed himself to become involved in a religious dispute.
Carl W. Herstein is a retired partner of a large midwestern law firm, a University of Michigan and Yale Law School graduate, and the recipient in 2019 of the St. Thomas More Award from the Catholic Lawyers Guild of the Diocese of Lansing, Michigan.