Opinion: In James Huntsman lawsuit, you can’t define tithing without religion
A recent amicus brief filed by “Ten Major Religious Organizations,” representing nearly 24 million believers, supports The Church of Jesus Christ of Latter-day Saints’ position in a lawsuit centering on the question of who gets to define the word tithing.
Because of the First Amendment’s religious freedom protections, the U.S. Supreme Court has long held that “courts are not arbiters of scriptural interpretation.” But that constitutional protection is now threatened in a “fraud” lawsuit against The Church of Jesus Christ of Latter-day Saints.
The fundamental question at the core of plaintiff James Huntsman’s accusations is what exactly constitutes tithing, and, crucially, who gets to make that determination. Though various parties seem eager to weigh in on the matter, this question — what constitutes tithing? — is inherently a religious one, according to a newly-submitted brief by the church. If a court or other governmental actor answers that question, instead of the church itself, it will undermine the faith’s constitutionally-granted autonomy to define its own doctrine and teachings.
The amicus brief submitted by various Southern Baptist, Seventh Day Adventist and Orthodox Jewish groups, among others, says that there is no way to give a purely secular interpretation of “a religious term based on church scripture and (a church president’s) theological understanding.” Indeed, “it is hard to see an issue that is less secular than that.” The U.S. Supreme Court has long held churches have broad discretion over internal decisions regarding doctrine, personnel and property. The reason for this is clear: If the government could dictate what churches must believe or whom they must hire, churches would lose the ability to define their own mission and purpose.
In a previous case, for example, the Supreme Court unanimously held that forcing a church to retain an unwanted minister would violate both of the First Amendment’s Religion Clauses: The Free Exercise Clause (because it would deny the church the ability to freely determine who will personify its beliefs as leaders) and the Establishment Clause (because it would impose the government’s decision on the church).
Court attempts to define “tithing funds” for a church would run into similar problems. The Church of Jesus Christ of Latter-day Saints says the meaning of tithing is defined, first, by scripture, especially Doctrine and Covenants 119:4 (members “shall pay one-tenth of all their interest (or income) annually” to the church). It is also established by the church’s own self-understanding and teachings (see, e.g., “Tithing” on the church’s website).
In the context of this dispute, the meaning of tithing is also influenced by a statement made by President Gordon B. Hinckley in the April 2003 general conference of The Church of Jesus Christ of Latter-day Saints, when he made a clear distinction between tithing funds and interest earned on reserve funds: “I wish to give the entire Church assurance that tithing funds have not and will not be used to acquire this property (City Creek). 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” (emphasis added).
Here, President Hinckley plainly states tithing funds would not be used for beautifying the metropolitan area adjoining Temple Square, while noting a portion of that development would come from the earnings from invested church savings called “reserve funds.”
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At least a subset of those funds naturally include tithing funds not yet spent for their ordained purpose. Does that mean the reserve fund as a whole — both the saved tithing and the earnings on the saved tithing — should be considered “tithing”?
While some have insisted as much, many other thoughtful members and leaders have concluded differently — seeing these reserve funds as something different than tithing. Notably, the church president saw them as something different.
The more critical question here is whose determination matters most in defining tithing — the church’s or the court’s?
If a court decides against the church, it would essentially be saying the real answer to the question of what constitutes tithing is determined by someone other than the ecclesiastical leaders of the church. The best argument that “tithing funds” were used is a claim by a former employee of Ensign Peak Advisors (the investment manager for the church) who claims that Ensign Peak Advisors were in the habit of internally referring to all of the invested money in the accounts — both principal and interest — as tithing funds.
Even if this is true, employee nomenclature would not trump the words of a church president in defining what constitutes tithing and what constitutes earnings on reserve funds. Furthermore, it would be an unconstitutional intrusion on the autonomy of the church to say the language or practices of affiliated investors should control the meaning of tithing for the church.
Why should the investors, rather than church leaders and scripture, get the final say over a concept that is patently religious?
Some readers may be concerned that churches can avoid accusations of fraud simply by changing the meaning of their terms. The church’s brief alludes to this fear, stating “none of this means that a church leader raising funds for hurricane relief can raid the collection basket to fund a pleasure trip. ... But a fraud claim simply cannot turn on a difference in understanding of a religious term or the failure of a religious leader to define his terms with greater precision.”
The church isn’t asking for a convenient change in terms to avoid a lawsuit. The church is simply asking for the court to accept the definition it has long maintained — the definition President Hinckley clearly and publicly understood and used when he made a distinction between tithing and earnings on reserve funds. The church isn’t asking to manipulate its definition of tithing — it’s asking for the court not to manipulate it by dismissing the ecclesiastical leaders’ definition.
Courts should be extremely cautious when evaluating the internal decisions and teachings of a church. Using the coercive power of government to compel a church to act against its wishes goes against both the spirit and letter of the First Amendment.
Daniel Frost is the director of public scholarship in the School of Family Life at Brigham Young University. He also serves as editor-in-chief of Public Square Magazine. Anna Bryner is a third-year law student at Brigham Young University.
