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First Amendment requires courts to stay out of tithing dispute

Written by William C. Duncan

October 5, 2023

How should we resolve religious disputes? If you think that a minister is insufficiently orthodox or that your church’s hierarchy chose the wrong pastor, what can you do?

Whatever the answer, one option would seem to be off the table – bringing a lawsuit. That is because there is a well-established rule derived from the religion clauses in the First Amendment (the free exercise clause and the establishment clause) that prevents courts from weighing in on internal church matters. This concept, the church autonomy doctrine, has been applied to prevent court involvement in questions of who should be selected as a religious minister, truth claims about religious doctrine, internal church disputes, and defamation claims against religious officials.

The free exercise clause protects religious practice from government impositions and the establishment clause precludes the government from creating an official state religion. Church autonomy doctrine promotes both concepts since it prevents the government from “taking sides” in internal disputes so that churches are given broad freedom to act in their own sphere. Importantly, the concept is “jurisdictional,” meaning it acts not as a rule for decision-making but as a threshold question of whether the court will even hear the case.

The church autonomy doctrine is an important part of the ongoing dispute between a disaffected former member and The Church of Jesus Christ of Latter-day Saints related to principle of tithing.

The case arose when the former member sought a refund of tithing paid to the church. His claim is that the church had made untrue statements about the use of tithing funds in the development of the City Creek Center in Salt Lake City. Specifically, he points to a statement from then-President Gordon B. Hinckley:

I wish to give the entire Church the assurance that tithing funds have not and will not be used to acquire this property. Nor will they be used in developing it for commercial purposes. Funds for this have come and will come from those commercial entities owned by the Church. These resources, together with the earnings of invested reserve funds, will accommodate this program.

The ex-member’s claim is that tithing funds were used for City Creek, and the implication of his lawsuit is that if he had understood that the money would be used for this purpose, he might not have paid tithing. Thus, he charges that the statements about tithing and City Creek are a form of fraud.

The church pointed out in response that tithing money was not used, but rather that – as President Hinckley promised – only money from commercial entities and earnings from invested reserve funds were used.

Thus, the district court summarily dismissed the lawsuit. Its approach was simple: Since there was no misstatement, there can be no fraud.

Then, however, a three-judge panel of the U.S. Court of Appeals revived the lawsuit. In a 2-1 decision, the majority decided that a jury should get to determine how a reasonable person would understand tithing. Thus, the jury would have to weigh the competing descriptions of tithing. On the one hand, the church teaches that tithing is a donation made consistent with divine direction as described in scriptural teachings of the faith. On the other hand, the plaintiff understands tithing to include not only the donations, but earnings from investments of the donations set aside for use in time of need.

This decision, from August, led to a recent petition from the church asking the panel to reconsider its decision or to have it decided by a larger panel of judges from the Ninth Circuit.

What does this have to do with religious freedom?

As the petition notes, the district court had recognized the potential religious freedom implications of doing what the panel majority is calling for, but it determined that it need not address them directly since the lack of a misstatement by the church doomed the fraud claim.

The district judge warned that “determining whether the term ‘tithing funds’ encompasses earnings on invested tithing funds would require an analysis of Church doctrines and teachings,” which “would entangle [a] Court or a jury in an interpretation of ‘ecclesiastical rule, custom or law.’” This type of analysis would be barred by the First Amendment, as described above.

The panel majority has now raised the possibility that a jury will have to determine whether to accept that the “distinction is rooted in longstanding church doctrine, which views tithing as an ongoing obligation to contribute ‘a tenth’ of a Church member’s ‘annual increase or income,’—a concept that excludes later investment earnings.”

This is precisely the type of intrusion into church operations that the church autonomy doctrine is designed to prevent. Such intrusions have led the U.S. Supreme Court to direct courts to decline other lawsuits, such as over whether a particular employee must be retained by a religious school to promulgate the faith.

When the state – specifically its courts – lacks jurisdiction to decide a dispute, it is clearly an overreach to move ahead. The Ninth Circuit (or the Supreme Court, if it becomes necessary) should correct the mistaken decision of the panel. This is a matter of constitutional integrity.

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • The constitutional principle of church autonomy requires courts to abstain from involvement in internal church matters.
  • A recent decision of two judges of the Ninth Circuit Court of Appeals violates this principle by requiring a federal court to determine the meaning of the religious principle of tithing as taught by The Church of Jesus Christ of Latter-day Saints.
  • The Ninth Circuit, or another court if necessary, should prevent this intrusion into church teachings, leaving disagreements over religious beliefs and operations to churches.

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