Three disaffected Latter-day Saints whose long-fought fraud and racketeering lawsuit against their one-time church involving tithing got rejected in August are asking an appeals court to reconsider.
Laura Gaddy, Lyle Small and Leanne Harris have filed for a review by the full 10th U.S. Circuit Court of Appeals, saying the three-judge panel’s ruling last month mistakenly refused to delve into their legal claims by invoking the church autonomy doctrine, which bars courts from probing religious matters.
They’re now seeking what’s called en banc review by the 12-judge appeals court based in Denver in the latest turn in their suit against The Church of Jesus Christ of Latter-day Saints, first filed in 2019.
“Only if the church has a sincerely held religious belief in ‘Lying for the Lord,’” the brief argues, “can they plausibly defend their conduct under the federal fraud statutes.”
In a would-be friend-of-the-court brief filed alongside the Gaddy appeal, a self-described stay-at-home mother from Provo, Candice Kulbeth, argues that treating church autonomy as the first basis for examining the case threatens to create “constitutional black holes where rights vanish without remedy.”
Kulbeth said in an interview her motion to file an amicus brief — which includes the brief itself — stemmed from a family member’s divorce case in which, she argues, on-the-stand testimony involving ecclesiastical pronouncements from the W. Christopher Waddell, a member of the church’s Presiding Bishopric, unfairly preempted legal fact-finding.
Why it was dismissed in August
In the August ruling dismissing the Gaddy case, the three judges said she and her co-plaintiffs were seeking to hold the church liable for teaching core beliefs that didn’t line up with what the plaintiffs believed to be the historical truths of the faith.
The plaintiffs alleged, for example, that the Utah-based church misled members into committing and donating to the church, partly by knowingly misrepresenting Latter-day Saint history, including shifting accounts about whether the Book of Mormon was translated by founder Joseph Smith by looking at inscribed gold plates — or through visions from a brown “seer stone” in a hat.
That alleged misconduct by church leaders, the court wrote, “is religiously rooted, relating to core issues of faith.”
Invoking a lower federal court ruling that had also dismissed the case, the judges wrote that a court “can no more determine whether Joseph Smith ... translated with God’s help gold plates ... than it can opine whether Jesus Christ walked on water or Muhammad communed with the archangel Gabriel.”
The panel also found the plaintiffs had failed to adequately link their own personal claims of legal injury with alleged misstatements by church leaders about how tithing money would be used.
The decision marked the third high-profile tithing lawsuit against the church to be dismissed by courts this year.
Did church leaders believe what they were saying?
In their latest appeal, filed Sept. 12 by Salt Lake City-based attorney Kay Burningham, Gaddy and her co-plaintiffs counter that their assertions of deception and concealment against the church over tithing could be decided under neutral legal principles — without having to decide actual matters of faith.
August’s 36-page ruling, they contend, incorrectly turned aside the question as to how sincerely church leaders themselves believed some of their own teachings, which they contend could be decided under separate case law not entangled with faith.
Despite depictions of Smith poring over gold plates being widely circulated for generations, the plaintiffs assert church leaders did not sincerely believe that version, given that Smith’s seer stone was held in church vaults for nearly a century before it was revealed to the public in 2015.
In a recent Q&A on its website, the church reported that “eyewitness accounts show that in some instances Joseph Smith looked at a seer stone in a hat to translate, but in other cases he looked through the interpreters [or spectacles God supplied] at the plates.”
(Rick Bowmer | AP) A picture Joseph Smith's seer stone.
(The Church of Jesus Christ of Latter-day Saints) An actor portraying Joseph Smith in a church-produced movie depicts him looking at the gold plates.
The central legal question of the sincerity of these beliefs, the plaintiffs contend, can be decided without spilling into wider questions of faith itself, which would be barred under the First Amendment, and protections under the church autonomy doctrine.
“[T]he ultimate answer,” the plaintiffs state, “was that the church did not believe their correlated historical narrative.”
Utah, they contend, has a profound interest in protecting the public against fraud by applying neutral legal principles in the case, given the Beehive State has one of the highest per-capita rates of affinity fraud and Ponzi schemes in the nation.
More on Waddell and the amicus brief
In her request to file an amicus brief, Kulbeth, the Provo resident, asserts that Waddell was permitted to testify in a family member’s divorce case in regards to religious definitions of fatherhood and church worthiness, as well as issues of custody and financial responsibility.
She said in her brief that testimony from Waddell, who reportedly was a relative of one of the parties in the divorce, “directly shaped the court’s orders” and she asserts that the church leader “misrepresented his own beliefs under the color of ecclesiastical authority.”
“Autonomy is meant to keep civil courts out of theology,” Kulbeth wrote. “Here, it was inverted — ecclesiastical answers displaced civil law.”
Her brief backs the request for en banc review in the Gaddy case “for the sake of judicial integrity, constitutional consistency, and the rights of citizens entitled to a forum.”