Exactly a month ago, I wrote about James Huntsman’s success at the 9th Circuit. Essentially, the majority of a three-judge panel on the 9th Circuit held that there was an open question of fact in the case (that is, what is the definition of tithing) and, as a result, the case couldn’t be dismissed prior to a jury trial.
I also mentioned that the church could file for rehearing en banc. And yesterday, it did just that. (You can read the petition at the bottom of this post.)
I don’t have a ton of time, today or for the rest of the week, so I’m not going to dive deeply into it, but I skimmed the section where the church argues for the rehearing. Essentially, the church makes three related arguments
There was no fraud.
I’ve written about this before. Substantively, I think that’s right. This is a frivolous lawsuit.
But the prior panel didn’t claim it was a meritorious suit, just that there was an open question of fact that a jury needed to address. So the argument that there was no fraud, even if it’s right, doesn’t get the church a rehearing. And, while the church mentions this in passing, it doesn’t dwell on it.
This is a non-justiciable issue.
The church points out that the Supreme Court has a pretty broad church autonomy doctrine, which basically says that the state (including courts) can’t interpose itself into issues of church governance, doctrine, and faith.
What does the church autonomy doctrine have to do with Huntsman’s suit? The whole thing turns, the church says, on the definition of tithing. The church says tithing means what people gave it; Huntsman, by contrast, says it’s what the church gave it and any earnings on what the church received.
So we have a disagreement! One that is a question of fact! But also, says the church, is a question of church doctrine. Different religious might define “tithing” differently. But a church’s internal definition of tithing is outside the scope of what courts can look into.
(And what about EPA employees calling everything tithing? That leads to my favorite line of the petition: “if the loose usage of portfolio managers differs from the understanding of Church authorities, the answer under binding Supreme Court precedent is clear: Courts must “defer” to ecclesiastical authorities.”)
Whether Huntsman “relied” also would violate the church autonomy doctrine.
Fraud requires not only a misstatement, but reliance on that misstatement. But this case would require a jury to determine how a “reasonable” Mormon would understand the definition of tithing, which is also foreclosed by the church autonomy doctrine.
Like I said, I don’t have a ton of time to dig in, but on my quick skim of the petition, it’s very well-done and compelling. (Assuming, of course, it’s not misrepresenting the cases it cites, and given Paul Clement’s reputation, I’m pretty comfortable assuming he’s not misrepresenting the cases he’s relying on.)
Where do we go from here? Well, eventually the 9th Circuit will decide whether to grant the petition or not. It could do it quickly (ha!), but more likely we’ll be waiting months or years before the next thing happens.
Photo by Tingey Injury Law Firm on Unsplash
(h/t to Marc for the head’s-up about the filing)