William C. Duncan: Coverage of LDS Church tithing lawsuit is missing some key details

(Francisco Kjolseth | The Salt Lake Tribune) The Church of Jesus Christ of Latter-day Saints office building on Wednesday, March 30, 2022.

The ongoing lawsuit against The Church of Jesus Christ of Latter-day Saints by a former member over past tithing payments has resulted in some news coverage, including in this paper, that lacks some important details. While good legal reporting is no simple feat, the people’s civic understanding could benefit from improvements in coverage of cases that impact core constitutional rights.

The basic facts of the case are straightforward. The lawsuit is premised on a claim that the church misled members about whether tithing funds would be used on the development of City Creek Center. The church argues, and the trial court agreed, that there was no fraud because the key statement by then-church President Gordon B. Hinckley about the use of tithing funds on the project was factually correct — that money from commercial entities owned by the church and interest earned on reserve funds, not donated tithing funds, would be used on the project.

On appeal, a 2-1 decision of a panel of the U.S. Court of Appeals for the 9th Circuit disagreed with the trial court and determined the lawsuit should be revived. One circuit judge dissented, agreeing with the trial court decision, but the majority believed a jury should determine whether a reasonable person might have agreed with the plaintiff’s characterization of what constitutes tithing funds, rather than the definition of tithing offered by leaders of the church.

As reported last week, the church has petitioned for a rehearing by the panel of judges who made that decision or a larger “en banc” panel of judges on the circuit.

The reporting on this petition, however, missed several points, which may give readers a mistaken impression about the important religious freedom implications of the case.

For instance, while The Tribune’s article noted that the church’s petition raised religious freedom concerns, it also relayed the plaintiff’s claim “that all the judges who had reviewed the case thus far — both in U.S. District Court and the three-judge appellate panel — had rejected the idea that it was barred by religious protections.”

This statement misses some key context. As noted above, the trial judge rejected the lawsuit out of hand since President Hinckley’s statement accurately described the source of the funds used in City Creek (no misstatement, no fraud). Thus, an extended discussion of religious freedom might have seemed unnecessary. However, the trial judge actually did talk about religious freedom and did not reject the religious freedom claim. As explained in the petition:

Accordingly, the district court concluded that it “need not” reach or apply the church-autonomy doctrine. But the court recognized that James Huntsman’s claim implicated it. As it explained, Huntsman’s claim reflected his understanding that tithing funds and earnings on invested tithing funds are “two sides of the same financial coin,” such that proceeds from invested tithing reserves constitute “tithing funds.” But the court observed that “determining whether the term ‘tithing funds’ encompasses earnings on invested tithing funds would require an analysis of Church doctrines and teachings,” and “[t]he First Amendment bars such an inquiry.”

The dissenting opinion in the 9th Circuit ruling did not address religious freedom claims, but that is different from rejecting the religious freedom issues at play. Having decided there was no misstatement from church leaders that could justify a claim of fraud, the dissenting judge may simply have decided that there was no reason to address the religious freedom concerns.

A reader of The Tribune’s coverage could be excused for concluding that the religious freedom claims in the petition had been raised only after other legal arguments had failed, when in fact, they have been a part of the church’s legal filings in response to fraud claims from the beginning.

The press has great capacity to contribute to civic understanding. Legal reporting is not easy, given the volume of documents, technical language, and the nuances of the legal process. But simple practices like summaries of competing arguments could help. Maybe there are other steps that can be taken to help reporters and readers navigate legal issues in ways that increase civic knowledge. Figuring that out would be a valuable contribution because litigation and court decisions have implications for public policy and constitutional rights.

As this case continues either to review by a larger panel at the 9th Circuit, review by the Supreme Court, or a return to the district court, members of the press will have the opportunity to enhance the public’s understanding of the core constitutional right of religious freedom. For the benefit of their readers’ civic understanding, they would be wise to do so.

William C. Duncan | The Sutherland Institute

William C. Duncan, J.D., is the constitutional law and religious freedom fellow at Sutherland Institute.