James Huntsman is trying to resist a growing wave of legal attempts by The Church of Jesus Christ of Latter-day Saints and other groups to turn his high-profile fraud lawsuit over tithing into a religious affair.
In a brief filed Monday with 9th U.S. Circuit Court of Appeals, the prominent Utahn and former Latter-day Saint reasserts that his federal suit to recover millions of dollars in past donations is “a purely secular” dispute based on his assertions of being misled — not a plunge into resolving matters of church doctrine.
The latest salvo comes as Huntsman’s lawyers mount arguments against the church’s petition for a rehearing before the San Francisco-based court after a three-judge appellate panel reinstated the lawsuit in August on a split decision.
In support of his latest filing, Huntsman has enlisted attorneys from Americans United for Separation of Church and State, a Washington, D.C.-based nonprofit dedicated to disassociating religion from government.
All the rulings so far in the case have found Huntsman’s claims he was deceived into donating to the church are not barred by the First Amendment, his lawyers contend — so there has been no need to answer questions of religious belief.
“That narrow, unremarkable conclusion,” they write, “aligns with the long-standing rule that a religious institution’s right to control religious doctrine does not allow it to defraud its members.
“...The First Amendment guarantees that the church generally can spend its money how it wants. And the First Amendment gives the church the unfettered right to define religious terms,” the brief states. “What the First Amendment does not do, however, is give carte blanche to the church to induce its members to donate by explicitly promising one thing and then secretly doing the opposite.”
When the case began
(Tribune archives) Then-church President Gordon B. Hinckley speaks at General Conference in April 2003, when he explained how City Creek Center would be funded.
Huntsman, a brother of former Utah Gov. Jon Huntsman Jr., sued the church in March 2021 in a Los Angeles federal court, alleging that then-church President Gordon B. Hinckley and other senior Latter-day Saint authorities had lied about how regular donations, known as tithing, from those within the 17 million-member global faith were spent and diverted for private business purposes.
In the church’s April 2003 General Conference, Hinckley insisted that tithing funds “have not and will not be used” to develop City Creek Center, stating that the money came from “commercial entities owned by the church” and “earnings of invested reserve funds.”
A federal judge tossed out Huntsman’s case, but appellate judges ruled 2-1 to reverse that decision, saying a juror might believe Huntsman’s assertions that church leaders misrepresented how $1.4 billion in church funds was spent on the shopping mall in downtown Salt Lake City.
In a petition filed in late September, church lawyers argue the resulting legal clash has “created a profound threat to religious liberty” — one potentially affecting all faiths.
Allowing the case to proceed to a jury trial, the faith’s attorneys contend, would violate church-autonomy doctrines upheld by the U.S. Supreme Court, barring courts from intruding on internal religious affairs and matters of faith.
Other religious and nonprofit groups have since added their voices to the case before the 9th Circuit in what are known as amicus briefs in support of the church’s position, raising a variety of warnings and arguments about the case’s legal implications.
Four nonprofit groups — including Thanksgiving Point in Lehi — argue that because they rely heavily on donations, the Huntsman case might open them up to a disproportionate share of new legal actions from disgruntled former members seeking donation refunds.
The appellate panel’s August ruling, they caution, “invites litigation against every nonprofit who makes any fundraising promise containing terms that could be deemed imprecise, confusing, overly technical, or insufficiently defined.”
Threat to religious freedom?
(Francisco Kjolseth | The Salt Lake Tribune) Students walk between classes on the BYU campus in 2022. Scholars at the J. Reuben Clark Law Society, affiliated with Provo university's law school, have argued the James Huntsman's tithing lawsuit threatens religious liberties.
The Becket Fund for Religious Liberty, a Washington, D.C.-based nonprofit law firm representing " all religious traditions” in the case, has filed a brief saying all tithing disputes “are inherently religious” and that courts “cannot second-guess the content of sermons.”
“Freedom of religion could not survive,” the firm warns, “if courts had power to investigate every complaint about a church’s internal decisions, thus becoming endlessly entangled in religious decision-making.”
Scholars at the J. Reuben Clark Law Society, affiliated with the law school at church-owned Brigham Young University in Provo, filed their own brief arguing that Latter-day Saint scripture and doctrine closely bind the management of tithing to senior church leaders. That gives their decisions religious authority, the society writes, but also puts them beyond judicial review.
“Allowing a plaintiff to contradict President Hinckley’s statement on a matter of church doctrine and practice,” the society adds, “would invade the autonomy of the church in a way the First Amendment forbids.”
But judging what beliefs Huntsman himself might have relied on in making his tithing donations, its brief argues, also would require a jury to evaluate doctrine on tithing and whether Huntsman adhered to it or if his views “were out of step with believing members of the faith.”
Two groups representing religious institutions of higher education (the Association of Catholic Colleges and Universities and the Council for Christian Colleges & Universities) along with California Baptist University, in Riverside, Calif., LDS Church-owned BYU-Hawaii and BYU-Idaho, have also weighed in, saying the August ruling “will disrupt and chill fundraising efforts in the nonprofit industry.”
Finally, a group of 10 major faiths has jointly filed its own brief, saying no religious groups within the jurisdiction of the 9th Circuit — the nation’s largest in terms of population and geography — “will be safe from judicial or jury intrusion into internal religious issues” if the latest ruling stands.
Huntsman counters that the August ruling leaves a clear path for evaluating his fraud assertion without nosing into religious questions and with no constitutional reason to stay away — letting judges decide whether church leaders misrepresented facts “‘without resolving underlying controversies over religious doctrine.’”
His lawyers contend elsewhere that deciding the case hinges on “a credibility argument — it has nothing to do with the correct meaning of church doctrine.”
“The question is whether the church materially misrepresented the source of funding for City Creek,” Huntsman’s brief asserts. “It did.”
Huntsman’s lawyers say the August decision “holds only that church leaders cannot fraudulently misrepresent how church funds will be used” and “keeps with the well-established principle that ‘the cloak of religion’ does not give religious organizations a free pass to ‘commit frauds upon the public.’”
It is unclear when the 9th Circuit might decide whether to grant a new hearing, whether by the three-judge panel that made the August ruling or by the full appellate court.
Editor’s note • James Huntsman is a brother of Paul Huntsman, chair of the nonprofit Salt Lake Tribune’s board of directors. In addition, this story is available to Tribune subscribers only. Thank you for supporting local journalism.
