Welcome and Episode Introduction

John Dehlin [00:00:02] Hello, everyone, and welcome to another edition of Mormon Stories podcast. I am one of your hosts for today, John Dehlin. It's September 23, 2024, and it looks like the Mormon Church is being sued for fraud, actually multiple times. But Today in the 10th Circuit Court in Utah, there was a hearing where the Mormon Church is being sued for misrepresenting its history, allegedly, according to the plaintiffs. And I believe that there are, there's at least one defendant, if not a group of defendants who are hoping to. Oh, sorry. A group of plaintiffs who are hoping to reclaim some of the tithing that they paid because they feel like they paid tithing under false or fraudulent pretenses.

John Dehlin [00:01:00] And so a hearing was held earlier this morning, and we have the full audio of the hearing. And what we're basically going to be doing is explaining the case. We've talked about it a little bit before. We're going to be explaining the case.

John Dehlin [00:01:14] We're going to be playing the audio from today's hearing, and we have a distinguished panel of guests here to help us understand and process what's going on. So without any further ado, I welcome back to Mormon Stories, JD Kolby Reddish. Hey, Kolby.

Kolby Reddish [00:01:36] Hi, John. Thanks for having me.

John Dehlin [00:01:37] Welcome back.

Kolby Reddish [00:01:39] Thank you. It's nice to be back.

John Dehlin [00:01:42] Kolby is, is an actual attorney. The rest of us just play one on tv.

Guest [00:01:48] That's true.

Kolby Reddish [00:01:49] And we're talking about appeals, which is my wheelhouse. That's the type of law that I practice primarily in. And excited to. I practice law in Boise, Idaho. So I'm coming to you from Boise. You can see the background of Boise behind me.

John Dehlin [00:02:03] Awesome. Well, thanks for joining CN Kolby. Gerardo knows more about the law than I think many law students. But Gerardo, you're back. It going. Gerardo, doing great.

Guest [00:02:16] Yeah.

Gerardo Sumano [00:02:17] Pretty excited to get into it.

John Dehlin [00:02:19] You do, you do enjoy these legal episodes, right?

Gerardo Sumano [00:02:22] Yeah, yeah. They're pretty fun.

John Dehlin [00:02:23] It's kind of a hobby of mine. Of yours?

Gerardo Sumano [00:02:25] Yeah.

Guest 2 [00:02:26] Yeah, for sure.

John Dehlin [00:02:28] And Julia, do. Do you have legal stuff as a hobby as well?

Julia [00:02:32] No. The church history side of this was what was fascinating to me.

John Dehlin [00:02:35] Yeah.

Julia [00:02:36] Yeah.

John Dehlin [00:02:36] All right. Well, cool. Well, let's go. We do have a live audience, so we do welcome. We, we want to welcome all of those of you who joined us through the live stream. Maven's going to be moderating comments today. We're glad Maven's here and she's going to star any questions or, you know, insightful comments that y' all have. We do want to let you, we want to thank our donors who make Mormon stories possible.

John Dehlin [00:03:05] So thank you. If you're just a regular old monthly donor, you know your contributions are crucial if you do want us to show your question or share your comment, donating through YouTube via Super Chat is the way to guarantee that that happens. So we'll make sure and show all the super Chats. But also Maven's going to cherry pick really good comments or questions. She'll star them and then we'll try to share those as well as they come up.

John Dehlin [00:03:37] And, and of course, we always want to encourage everyone to like and subscribe, subscribe to this channel, like it, comment on it. And that's the way that the algorithm gods will smile upon us. Gods and goddesses. Right, Julia?

Julia [00:03:53] Right.

Overview of Tithing Lawsuits Against the LDS Church

Gerardo Sumano [00:03:54] All right.

John Dehlin [00:03:55] Well, Kolby, let's, let's turn the time over to you. And we've got some slides as well. So where should we begin?

Kolby Reddish [00:04:04] Well, let's start at the beginning. It's a very good place to start. I like, John, how you've retained the turn the time over to language. It makes me feel very comfortable. We will start today and it's actually going to be a big week for these tithing lawsuits. The last time I was on Mormon stories, we actually talked about a putative class action that had started back in July.

Kolby Reddish [00:04:29] We had done some reporting on that. And so we're back talking about two different updates to some big tithing lawsuits across two different federal appellate circuits. So for those who don't know the federal circuit courts of appeal, there are 13 of them across the United States.

Kolby Reddish [00:04:46] Idaho is in the 9th Circuit as well as California. And so that's where the James Huntsman tithing lawsuit is taking place later this week. I think on Wednesday we plan on doing a similar response to that. And then the arguments in the 10th Circuit, which actually took place in Denver this morning. Utah falls within the 10th Circuit as well as Colorado.

Kolby Reddish [00:05:07] That's where the Gaddy case that we'll talk about today. So if you don't mind pulling up the slides, John, we can go from there.

John Dehlin [00:05:15] All right, so here's the title slide and let's go ahead and go to the first slide.

Kolby Reddish [00:05:23] Perfect. So here are the three different tithing cases and where they stand. So today we're going to talk about the first here on the far left. That is the Gatty case. There was oral argument Today at the 10th Circuit after the case was initially dismissed by the trial court judge. This case began as began back in mid-2019, the Huntsman lawsuit, which involves James Huntsman, that oral argument is set for an on bon rehearing in front of 11 a panel of 11 judges at the 9th Circuit in Seattle after that case was dismissed by the trial court and then reinstated by a first appellate panel. That is an individual suit. So it's not a class action. It only involves James Huntsman and his potential return of tithing. And that case began in 2021. And then the case.

Guest [00:06:12] I have a question.

John Dehlin [00:06:13] We're going to be live streaming that hearing on Wednesday, right?

Kolby Reddish [00:06:19] That's the plan. As long as. As long as I don't screw up too bad today.

John Dehlin [00:06:25] Okay, perfect. Were you going to say something, Gerardo?

Gerardo Sumano [00:06:27] Well, let's finish, actually.

John Dehlin [00:06:29] Okay. Okay.

Gerardo Sumano [00:06:30] Yeah, the three.

John Dehlin [00:06:31] All right. Okay.

Kolby Reddish [00:06:32] The third case actually is just getting itself off the ground. That case began in late 2023 at the trial court level, and it still is at the trial court level seeking a class action. There's been some movement in that case, actually, recently as far as the parties arguing back and forth over motions to dismiss. The church has filed some predictable motions to dismiss. There's been some discovery motions, and also the question of class certification. Those questions have yet to be decided by Judge Shelby. So one of the reasons that we haven't done an update on the filings that have gone back and forth is because the judge hasn't decided anything.

Kolby Reddish [00:07:09] And we're most interested in what the judge decides. So those are the three pending tithing lawsuits against the LDS church at the moment. There are additional ones, I think, also in the state of California that involve several plaintiffs. I think they were rolled into the Chappelle litigation. Those. My understanding. So those are the three cases that are pending, and we have movement in two of them this week. So today we're going to talk about the Gatti case, which, again, the oral arguments were heard at the 10th Circuit this morning after the case was initially dismissed by the trial court.

John Dehlin [00:07:40] Okay. Is Shelby involved in Gaddy?

Kolby Reddish [00:07:45] Yes. So Judge Shelby did not originally preside over Gaddy. Another judge did. But Judge Shelby was actually the judge that issued the order dismissing the case back in 2023. That is. That is on appeal.

John Dehlin [00:07:58] Okay, so. So Shelby is. Is with. Is presiding over Gaddy and Chappelle, but not Huntsman.

Guest 2 [00:08:05] Yeah.

John Dehlin [00:08:06] Correct.

Guest 1 [00:08:07] Yep.

Guest 2 [00:08:07] Okay.

John Dehlin [00:08:09] And again, remind us. The important ruling that Judge Shelby presided over that affected not only us, but maybe all of America. The. The. The same sex marriage ruling. Right.

Kolby Reddish [00:08:21] Yeah. So Judge Shelby, I think it was back in. It was before Obergefell basically led to obergefell. So in 2015, the Supreme Court of the United States. In a case called Obergefell B. Hodges recognized that discriminating against same sex marriages discriminates on the basis of sex. I think that case was rightly decided. The case is actually a little bit more complicated than that. But Judge Shelby was one of the judges that ruled that led at the trial court level, led eventually to Obergefell in. In Utah, so in the District of Utah. So that's something about Judge Shelby. He was appointed by Barack Obama. And we actually had some additional details on his background in our episode back in July, if people want to go back and listen to that.

John Dehlin [00:09:04] All right, and really quickly, I just want to thank Nancy for the super chat, as well as Laura Lee. And then there's a couple that actually have comments or questions. Sandaru Compilations writes, it is heartbreaking that the church has taken tithing dollars dishonestly. I wish I could redonate my money to organizations that would actually help people in need. Thank you for that comment, Sandaroo, and for the support. And Jake writes, love the content, guys. You do all do great work. I want my tithing back. All right, Gerardo, did you have a quick comment or question for. For Kolby?

Gerardo Sumano [00:09:41] No, I think it was the same question about Shelby.

John Dehlin [00:09:44] Okay, perfect. All right. Sorry to steal your thunder.

Gerardo Sumano [00:09:47] Oh, you're good.

Kolby Reddish [00:09:48] Perfect. And so to go back to those two cases that are, you know, on appeal now, one of the reasons I think that I wanted to talk about these issues is appeals is actually the area where I practice the most in. It's my personal legal area of interest. And where I started my career was appellate law. And I wanted to start with this statement about appeals just to kind of set the stage for what we're going to talk about today. Appeals are not just a second trial in front of a different judge or in front of a federal judge. Appeals are not simply a second chance to argue facts.

The Gaddy Case: Legal Errors and Procedural History

Kolby Reddish [00:10:19] They are about legal errors. So I actually pulled this case from one of my favorite Idaho Supreme Court cases, again, where I practice, that talks about this. The Idaho supreme court back in 2018 wrote, quote, an appeal is a formalized analysis of alleged legal error. An appeal is not merely a second attempt to argue relevant facts. As we have made repeatedly clear, it is improper when a party merely asks this court to second guess a trial court in weighing evidence. Instead, an appeal should be focused, a focused argument about specific legal errors that occurred at the court below. And so that's basically what we're going to focus on today.

Kolby Reddish [00:10:55] And one of the reasons that appellate law can be so interesting is it is specifically about whether in the Gaddy case, what we're going to talk about is whether the district judge, Judge Shelby, when he ended up dismissing the case, whether he did so on the proper basis, or whether that ruling incorporated some legal error. So to give people some background on how the Gaddy case started, and really the theory of the case, I think you summarized it pretty well, John. But this, this is another summary that I pulled.

Kolby Reddish [00:11:21] The plaintiff, Gaddy, Laura Gaddy, was a member of the Church of Jesus Christ of Latter Day Saints for most of her life. In 2018, she found information on the Internet that she believed conflicted with the church's teachings on its founding and history. As a result, Gaddy left the church. She then filed a federal lawsuit in 2018 making fraud and racketeering claims against church leadership. So let's look actually at a photo of the complaint to kind of give people a background of exactly what factual allegations were incorporated into Gaddy's complaint. You can see here. John, do you want to kind of go over the. The subpart B there? The Mormon Empire's false representations of material fact.

John Dehlin [00:12:05] Yeah. So just kind of re read them.

Guest 2 [00:12:08] Perfect.

John Dehlin [00:12:08] Okay. So she's concerned about Joseph Smith's first vision, that the. The official, you know, 1838 narrative that most of us are familiar with, where God and Jesus visited Joseph allegedly misrepresents the earlier account that we have where it was just the Lord that visited Joseph Smith.

John Dehlin [00:12:32] So, yeah, she feels misled about Joseph Smith's first vision. She feels misled about the origin of the Book of Mormon, you know, basically around its historicity, whether it's. Whether there are problems with the book. I guess that she's also concerned about how it was translated, how it was produced.

John Dehlin [00:12:55] I think the stone in the hat, rocking a hat theory and the treasure digging stuff is going to come into play here. I'm guessing, probably along with the art depictions and the way that members were both taught and visually the translation was depicted. I'm guessing it's going to be talking about that.

John Dehlin [00:13:15] And then she wants to talk about. She's concerned about or feels misled about the Book of Abraham. The, you know, having been taught that the Book of Abraham was translated from papyrus, when we now know that Egyptologists have denounced what Joseph produced as not being a translation of the papyra of the Book of Abraham. And then there's some miscellaneous representations or misrepresentations of material fact.

Guest 1 [00:13:44] Yeah.

Kolby Reddish [00:13:44] And I think one of the things that I wanted people to be able to see as we look at that. That's right. From the table of contents, from the complaint itself. Is that what the attorney, Kay Birmingham, is attempting to do for Gaddy, for the plaintiff? Gaddy is she's trying to walk a very fine line here of talking about the church's shift in its narrative on these different historical issues, while also attempting not to run afoul of the First Amendment's protection of religious freedom. And then the establishment. So the First Amendment has two different protections. The first is the free exercise clause, which protects freedom of belief, and then the Establishment clause, which protects religious institutions and their position vis a vis society.

Kolby Reddish [00:14:26] And so they're attempting to walk a very fine line here by talking about the shifting narrative. And people will be able to hear that. And I'll also just say, John, you must be a prophet, because you're absolutely correct. We're going to hear from in the oral argument about the seer stone, the rock in the hat, and the discrepancies between that and artist depictions, those pesky, pesky artists.

Kolby Reddish [00:14:48] If people want more in depth information regarding the basis for the case, I was going to point them to this prior episode of Mormon Stories where you and Radio Free Mormon take a look with K. Birmingham, at least for portion of. For a portion of the presentation for the actual case. And this is going back years ago where you on the front end basically had this discussion. And now here we are following up on the back end on appeal.

John Dehlin [00:15:15] So that's episode 1385. Check it out.

Kolby Reddish [00:15:21] Yeah, absolutely. So to go back, I guess, big picture, the theory of the case. In the lawsuit, Gatti accuses the church of misrepresenting its history and beliefs as a ploy to increase its membership, which she says results in more ties. A federal district court in Utah dismissed her case at the outset, ruling that her lawsuit could not move forward because it would require the court to decide whether church teachings about religious matters are true. Gaddy then appealed the lower court's decision to the 10th Circuit. And it is that oral argument, that oral argument on that appeal that we're going to listen to live today. Before we do, though, I want to go through some of the procedural history of the case.

Kolby Reddish [00:15:59] And I am going to do this at a high level because it is very complicated in the slides. Julia, I gave a link to where people, if they want to read the documents for themselves, can pull and access those thanks to the public access information that the courts generally have.

Kolby Reddish [00:16:16] Cases often go through a big, lengthy back and forth procedurally, and this one is no exception. As we talked about in the past. You know, a complaint is the first document that will start a typical lawsuit, and then a defendant may file response called an answer or some other type of response. And then there may be motions that go back and forth that can be responded to by amended complaints. And that's essentially what happened in this case, is originally the plaintiffs filed their complaint, the church responded with a motion to dismiss, actually two different motions to dismiss. And then there were amended complaints that were filed that basically just changes the theory of the case or adds additional support or facts to.

Kolby Reddish [00:16:57] To the complaint can eventually add new plaintiffs. That's what happened in this one. It started with one plaintiff, and we ended up with three. And so Gatti's case went through several different amended complaints, too, before it ended with several rounds of motion to dismiss. Before Judge Shelby, when he was at the. Well, he still is at the district court level now, there were financial fraud claims that basically related to the church's history and the way the Church has taught about its history, as well as claims that were based on rico, which is the Racketeer Influence and Corrupt Organizations Act. That is a federal law that was signed into.

Kolby Reddish [00:17:36] Signed into law by Robert Nixon, or I'm sorry, Richard Nixon, President Richard Nixon, which I think is pretty hilarious just because I'm a fan of irony. And I think it's funny that, you know, a federal statute that was passed in 1970 dealing with corrupt organizations and basically mob rule was signed into law by one of our most notorious presidents for his bad action.

Kolby Reddish [00:18:02] So as far as the financial claims go, the financial fraud claims go. The financial fraud claims are very similar to the case that we discussed back in July. It basically is premised off of the plaintiffs alleging that they would not have paid tithing if they'd understood certain things about the church.

Kolby Reddish [00:18:21] One issue in this particular case that's different from the Huntsman case that we'll talk about on Wednesday and then from the Chappelle case we talked about back in July, is that Gaddy's case does. As people can see from that overview of the complaint that we looked at, Gaddy's case does raise certain questions about the church's historical claims, on which typically run afoul of First Amendment protections. And in fact, going back to the procedural history, it was last year, March 28, 2023, that Judge Shelby dismissed Gatti's complaint for exactly that reason. Judge Shelby held that he had concluded all claims relying on the church's religious history and teachings fail under the church autonomy doctrine.

Kolby Reddish [00:19:04] That is a common law doctrine that's evolved as, as by operation of the First Amendment that basically churches have some protection for how they regulate their internal affairs and their policy and doctrine. So if we can pull up the case about church autonomy doctrine there. John, unless you had a question.

John Dehlin [00:19:25] Well, I just wanted to kind of, you know, switch between legal jargon and just kind of common sense. And so let me just, maybe just try and make sense of this. And so members, members are taught a certain narrative about the church. Then when they've, then, you know, the church starts coming clean about its history, starting around 2014 with the gospel topics essays and other sorts of things. And the church, I guess in 2015 for the first time, didn't it publish the, the fact that it had a seer stone in a, in a vault and kind of acknowledged the seer stone, that somehow it was used that that all kind of happened in 2015. Is that right?

Julia [00:20:07] 15 yeah, that's right.

Kolby Reddish [00:20:09] And one of the things, one of the reasons I highlighted on when these cases started, because I do think this is important, is we also have the enzyme peak whistleblower information that was leaked by Lars Nielsen In December of 2019, if I have my dates correct. But the Gatti case actually started before that in mid-2019. And so that's one of the reasons that the financial fraud claims were added in one of the amended complaints. They were basically an add on to these historical claims. But you're right, John, and thank you for the reminder to bring things back outside of the legal jargon is that is the premise of the case is the church had made certain, it had made certain historical teachings and certain historical claims about its history.

Kolby Reddish [00:20:49] And the essential claim that these plaintiffs are making is if the church would have taught them an accurate version or at least had acknowledged that there were two different conflicting versions. It may have led those plaintiffs to look into these issues further. And they wouldn't have been out the tithing money that they eventually paid or the time that they sacrificed to the church. All of those things are part of what they asked for as as far as relief goes in their complaint.

Gerardo Sumano [00:21:14] Okay, Kolby, are you talking about the, the most recent complaint or are you still talking about the original that was later amended?

Kolby Reddish [00:21:22] So I am talking about the original and the amended. The original. The original did not have like the explicit. It did have fraud claims and it did have financial, a financial element, but it was basically after David Nielsen's whistleblower report was leaked that these things were basically incorporated into an amended complaint. Yeah, yeah.

Gerardo Sumano [00:21:42] The reason I ask is just it's It's a little bit more. And you can correct me if I'm wrong. My understanding is a little bit more complicated than just whether they disclose the information or not. I think what the plaintiffs are alleging is that the leaders knew about the truth. They decided to hide the truth about its history and, and put it in vaults. And they did it because they knew that if the truth came out, they would lose membership or members wouldn't convert. So it, it's kind of like this intention to defraud that they're alleging. It's not like, oh, I was not giving the entire information is they're alleging fraud and an intention to defraud. Is that, is that right? Did I get that right, Kolby?

Kolby Reddish [00:22:30] Yeah, you're absolutely right. So there were six causes of action in the original complaint and common law fraud was one of them. So you're right. Fraud typically has nine elements that, you know, we could go through. We're not going to. Yeah, but that's one of the things is intent basically to conceal or intent to. In fact, I think one of the additional, one of the additional allegations in the complaint was actually fraudulent concealment. So the idea that not only was there like this intent to defraud, but there was actually like a, a plan to defraud people by withholding information. So I think, I think you're absolutely right, Hero.

Gerardo Sumano [00:23:03] And I think one of their examples is how is the correlation committee. And they're alleging that the church intentionally created a committee to hide this information from the members and massage the information in order to keep members in the church so that they wouldn't find out the truth. And I think that's something that will come out in the oral arguments. The idea of a correlation committee.

Kolby Reddish [00:23:27] I think, yeah, and I think, I think the other thing that one of the reasons that the plaintiffs appointed to the correlation committee is because when you're dealing with a big institution like this, right, you have to, when you're, when you're dealing with that as an attorney, particularly as a plaintiff's attorney, you need to impute the decisions to the organization. And so that's one of the reasons that they're doing that is to say these aren't just like, you know, one off actors that are teaching things that may be outdated. The church has this entire correlation program and committee to make sure that what is being taught in its congregations is consistent with what it wants to be taught. And so you're absolutely right.

John Dehlin [00:24:08] And so just, just for those who are joining us for the first time, who know nothing about Mormonism or who. Who aren't familiar with the facts in this case, I'll just state my understanding and experience with the Mormon Church is I was always taught that Joseph Smith translated the Book of Mormon from golden plates that were sitting in front of him, where he was looking through these magic glasses or spectacles called the Urim and Thummim that he got from the hill, from the angel Moroni, and that it was sort of this biblical translation which, with the plates, what we were never told, what I think the Church knew about for at least 100, if not 200 years and apparently intentionally hid, was the fact that, number one, he was a treasure digger before he ever produced the Book of Mormon, and that he would run around with a.

John Dehlin [00:25:02] A sear stone, this stone that he found in a well that he believed had magic powers, and he would lead people around to try and tell them that he could find buried treasure underground. It was with that peep stone, seer stone, that he ran afoul with the law that he also apparently used to, quote, translate the plates, but the plates weren't in the room, and he just basically put the stone in a hat, looked into the hat, and then would. Would come up with the text that ends up being the Book of Mormon. That story, the Church knew and hid and punished people who talked openly about it.

John Dehlin [00:25:42] So if I think about whether the common sense fraud test would be applicable at face value, trying to be as objective as possible, Kolby, I, you know, it seems with common sense that there was some type of fraud that took place. You know, that's just my gut reaction. And I think that's what a lot of people feel. Right?

Guest 2 [00:26:05] Yeah.

Kolby Reddish [00:26:06] And to be clear, one of the reasons that Judge Shelby dismissed the case, or the basis, I guess, on which Judge Shelby dismissed the case, which, again, that's the decision being appealed, he didn't actually reach or make a decision on that point at all, John. And the reason is, because the US has the First Amendment, which protects religious freedom. And the current view of what religious freedom protects is that it doesn't allow for the courts to look that in depth or to scrutinize that closely a church's decisions regarding its internal policies or its religious doctrines and its claims of faith. And so one of the distinctions, I guess I wanted to be really clear about when we're talking about this is, you know, my job when I'm an attorney or when I communicate.

Church Autonomy Doctrine and Its Legal Limits

Kolby Reddish [00:26:52] I also, you know, teach in the evening sometimes for the local law school here. And one of the things that I Try and do when I discuss these issues is, is when we're talking about the law, I'm giving an opinion on what the law is and what the law says, what the law requires. I'm not opining on morality or ethics because the law, to me, the law fixes a certain standard. And I wouldn't go below what the law requires. But I also think that actual morality and actual ethics, and ironically, it's the church that taught me this, goes above and beyond what the law requires.

Kolby Reddish [00:27:25] So I always want to make sure that people understand when I'm sharing my opinion about this legal doctrine or that legal doctrine or why the court did or may do certain things. That's not to say that I'm necessarily okay with those things. It's just to say that there are legal questions and then there are moral questions. I think all the things that you highlighted, the shift in the Church's narrative is obviously a big part of the reason that I'm no longer a member. But the question on whether those. That discrepancy is legally actionable, I think, is an entirely different question. Does that, does that make sense?

John Dehlin [00:27:58] Yep, that's perfect. And there's actually a comment that, that somebody made. Newton writes LDS judges are going to be impartial. He's basically implying, number one, that that Judge Selby is lds, which my understanding is. Is that he's not. That's my understanding. And then secondly, that that when he did. When he did dismiss this case, that he did it because he was religious. But I think what you were trying to communicate, I believe, with this slide. Right. Is. Is. Is what you just explained, which was, if you had to summarize, again, it's that the court can't tell churches how they should be teaching religious matters or what religious teachings are true versus not. The courts can't really weigh in on that.

Kolby Reddish [00:28:54] Yeah, that's essentially correct. Is. The court ultimately dismissed the. The complaint in response to the church's motion to dismiss on the grounds of the church autonomy doctrine. So if you'll pull up the slide focused on church autonomy doctrine, we can talk about that. Just a brief overview here, I think. One more forward.

John Dehlin [00:29:14] This says autonomy doctrine. Okay, there it is. Yeah.

Kolby Reddish [00:29:17] Yeah. So here is actually. And you'll hear this case referenced in the oral argument when we get to it here in just a minute, they'll talk about it as the Bryce case. So I pulled this from 2002 from the 10th Circuit. The court wrote, quote, the church autonomy doctrine prohibits civil court review of internal church disputes involving matters of faith doctrine, church governance, and polity. And basically that church autonomy doctrine is born out of the First Amendment's protections for religion here in the United States.

John Dehlin [00:29:50] I know this is going to be discussed, but I'm seeing history not listed there. And so for me, I don't think this is an issue of faith doctrine, governance, or polity, unless you can count how it teaches its history as governance. What is polity, Kolby?

Kolby Reddish [00:30:12] Polity is like the internal affairs. It's very similar to the church governance question.

Gerardo Sumano [00:30:17] Policy, basically.

Guest 2 [00:30:18] Right?

Kolby Reddish [00:30:18] Yeah. Policy is another analog, I would say. Yeah.

John Dehlin [00:30:22] Okay. I guess part of. I wonder if we'll get to that is whether or not how it teaches its history is a part of how it governs.

Kolby Reddish [00:30:29] Well, and I think that's a great question. It's one of the questions that I think ultimately the court will resolve in when it has to decide this, this case is where does history end and where does matters of faith or doctrine begin? Because I think it's very accurate to say, regardless of how I personally feel about those doctrines. Right. I think under any secular definition of the term doctrine, the church's beliefs or the church's teachings about the first Vision or about priesthood restoration or about the Book of Mormon, I struggle to view those things as not involving questions of faith or doctrine.

Kolby Reddish [00:31:05] But at the same time, one of the things that's very unique about Mormonism is we're not dealing with first century history. We're dealing with history that, you know, is not even as old as our country. It's not even as old as our Constitution. And that's one of the things, I think, that makes Mormonism unique amongst religions, particularly when we're dealing with questions like this.

John Dehlin [00:31:28] And that takes us, I think, to the next slide, which is, are there limits to the autonomy doctrine? Is that right?

Guest 1 [00:31:35] Yeah.

Kolby Reddish [00:31:35] Well, and real quickly, before we wanted to. I wanted to talk about the facts of Bryce just at a high level.

John Dehlin [00:31:41] Okay.

Kolby Reddish [00:31:42] Bryce involved a claim against the Episcopalian church. So that was the. The plaintiff, Bryce, was actually a youth pastor for an Episcopalian church, and the church was teaching very anti LGBT things in 2002. And that basically was how.

Kolby Reddish [00:32:02] How this case evolved was. Was the plaintiff basically brought claims saying that, you know, the church shouldn't be able to teach these things, that it's discriminating against me. All the things, again, when we're talking about morals and ethics, that I agree with. But in that Bryce decision, which again, will. Will factor into the oral arguments in a large way, the. The court basically said, you know, we can't go here as a matter of First Amendment protections. And people can either agree or not agree with that. Again, I have my own opinions. I'm just talking about what the court essentially found, that, you know, anytime we're dealing with internal governance or questions of faith, that the Court even wrote at one point in the Bryce decision, quote, the church autonomy doctrine is rooted in protection of the First Amendment rights of a church to discuss church doctrine and policy freely. And so that, I guess, for what it's worth, just kind of brings home some of those things.

John Dehlin [00:32:56] All right, perfect.

Kolby Reddish [00:32:59] So, yeah, like you said, Judge Shelby, even in his order granting the church's motion to dismiss, made a point of saying that the church autonomy doctrine is not without its limits. If you'll pull that slide up, John, the Judge Shelby noted again while he was granting the church's motion to dismiss, that the church autonomy doctrine is not without limits. Churches may not invoke the doctrine to shield purely secular decisions. To determine whether the church autonomy doctrine applies in a given instance, courts must decide whether the dispute presented is an ecclesiastical one about discipline, faith, internal organization, or ecclesiastical rule, custom or law, or whether it is a case in which we should hold religious organizations liable in civil courts for purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated one, and at a high level.

Kolby Reddish [00:33:48] What I want to say, basically that's saying is if you're suing a church and you're suing a church for something you could sue any other organization for based on the laws of civil fraud, then the First Amendment is not going to give the church any protection or any church any protection. And that's one of the things going back to our earlier comments about how this case relates to the others, that's one of the things about the Huntsman lawsuits that's very interesting is both at the trial court level and then at the appellate level, none of the four judges that have heard that case yet have found that the claims that James Huntsman has raised about misrepresentations by Gordon Hinckley and other church leaders about the use of tithing funds to ultimately go to the City Creek Mall project do implicate the First Amendment.

Kolby Reddish [00:34:33] And so that's, I guess the line there that I would invite people to think about is if you're suing a church, but you're suing a church for, for something that you can steal any other organization for, then you're probably not going to run afoul of the First Amendment if it gets close to involving what religion does uniquely talking about these claims of faith or these claims of. About belief, then you may implicate the First Amendment. And that's ultimately why Judge Shelby dismissed the case and why the. The plaintiffs decided to appeal. So let's now turn to the oral argument, and we will listen in and respond live.

John Dehlin [00:35:07] All right, so we're just going to play this thing all the way. It's an entirety, and then we'll pause when we've got something interesting to say. Is that. Or questions to ask. Is that all right?

Kolby Reddish [00:35:18] Yeah, that's good.

Julia [00:35:19] Yeah.

John Dehlin [00:35:19] Yeah. All right, let's go ahead and start.

Tenth Circuit Oral Arguments Begin

▶ Video Clip 1

Video Clip 1 [00:35:30] Your honorable judges of the United States

Video Clip 1 [00:35:33] States Court of Appeals for the 10th Circuit.

Video Clip 1 [00:35:40] Hear y, hear y. The United States Court of Appeals for

Video Clip 1 [00:35:44] the 10th Circuit is now in session.

Video Clip 1 [00:35:46] All those having business before this honorable

Video Clip 1 [00:35:48] court may now draw near. They will be heard. God save the United States.

Video Clip 1 [00:35:52] In this honorable court.

Video Clip 1 [00:35:54] Please be seated. I apologize for our late start. One of the judges, who will be unnamed, had trouble getting his robe on. We have six cases for our argument this morning. We'll take a break. Am I speaking loud enough for you to hear?

Video Clip 1 [00:36:21] Maybe I'm not understanding, but is this Cole? This is not Shelby. Who's going to be involved in today?

Video Clip 1 [00:36:26] Nope. Nope. There were three judges from the 10th Circuit that sat on the panel because

Video Clip 1 [00:36:32] it's the appellate court, correct?

Video Clip 1 [00:36:33] Yep.

Video Clip 1 [00:36:33] Judge Hartz, Phillips and Ide.

Video Clip 1 [00:36:36] Okay, so there's gonna be three judges asking questions to what, both attorneys? Yeah. Correct.

Video Clip 1 [00:36:42] So first it's gonna go the attorney for the plaintiffs for the attorney for daddy.

Video Clip 1 [00:36:47] Right. Kay Birmingham will start. She'll give a presentation. There are actually two appellees or respondents, attorneys that will present. Because the church was joined in saying that the First Amendment doesn't allow the courts to go here by, I think, the convention of American event, something like that. You'll hear it introduced here in a minute. And then Kay Birmingham gets a second chance. That's the way all these appellate arguments work.

Video Clip 1 [00:37:15] Got it. Okay, let's keep rolling. Yeah, I don't have a.

Video Clip 1 [00:37:25] My eighth grade teacher said I don't have a hog calling voice, and I'll try to speak up. So we have six on our docket. We'll take a break at some point, usually after the third or fourth case. So stay near. We don't take a long break. We'll start with 23 4110. Getty vs Corporation of the President of the Church of Jesus Christ.

Video Clip 1 [00:37:59] May it please the court. My name is Kay Burningham and I represent the Appellants who are plaintiffs in the underlying action. Laura Gatti, Lyle Small and Leanne Harris.

Video Clip 1 [00:38:09] Go ahead.

Video Clip 1 [00:38:11] Sorry.

Video Clip 1 [00:38:14] Now you know who is having trouble with the role.

Video Clip 1 [00:38:18] That's great. The case is a putative class action action case. We have not yet moved for certification because we wanted to get the. Any constitutional issues willed upon first. And it's against Apoli Corporation. We have appeal dismissal of the RICO claim that has been alleged in two separate types of areas. Number one is a misrepresentation of facts concerning LDS history. I don't have the time and I will only talk about the brown stone in the hat issue for purposes of today's oral argument because there are too many to. To reference. The second one is with regard to misrepresentations on how tithing was used once tithing was collected. Are we good to go? Okay.

Video Clip 1 [00:39:00] These pens work.

Video Clip 1 [00:39:05] I have.

Video Clip 1 [00:39:05] Okay.

Video Clip 1 [00:39:06] All right. It was interesting. I noticed on the exterior of the courthouse there's a Latin phrase, and I won't attempt to pronounce that Latin, but it. It states in English that to know when shall we deny justice, nor shall we discriminate in the application thereof. And I would just ask the court if they could keep that in mind because we are just a group of individuals and we are former members of the LDS Church who are suing the church, not all of all of the members of the church. And that's a much smaller group that was incorrectly stated. I believe in the appellee's briefs, but it's just the former members.

Video Clip 1 [00:39:34] We realize that there may be many members who don't think that the issues we address are significant. But to the ones that we are representing, those were very key issues. And our argument is, number one, that the church autonomy doctrine does not apply. Because if you go back and read the Watson case, that was the origin of church autonomy or ecclesiastical deference.

Video Clip 1 [00:39:53] Two things had to be shown before the threshold of application of church autonomy was met. Number one, that the church and its members can believe anything they want. And they can practice any kind of religion or preach or do any act that they like, as long as it wasn't against public morals. Number two, is that the reason for that is that there's an assumption that people who join a church do so with their implied consent and they know what they're doing.

Video Clip 1 [00:40:18] Why does it matter whether the church leadership believes the church doctrine?

Video Clip 1 [00:40:22] Because the brethren have said many, many times in General Conference, which is twice yearly attended by the plaintiffs in this case, every year, twice a year, that we will not lead you Astray. And their doctrine is correlated. And only certain things are taught at the local level or at the. At the high level. And they have admonished the members not to read the Internet, not to check outside sources. In 2010, a Deseret News article came out and said, don't you use proper sources?

Video Clip 1 [00:40:49] Well, let me ask it a different way, because we're not really getting to what I'm asking.

Video Clip 1 [00:40:52] Okay.

Video Clip 1 [00:40:54] If the church leaders do believe it, do you lose your lawsuit?

Video Clip 1 [00:40:57] Do you? What?

Video Clip 1 [00:40:58] Do you lose your lawsuit?

Video Clip 1 [00:41:02] Yes.

Video Clip 1 [00:41:05] I would have thought that even if the leaders of the church believed it, there could still be a possibility for fraud from omissions, which is to say, even if the church is true, there's still room for a civil recall. But your first answer says no, Let me qualify that.

Video Clip 1 [00:41:18] Your Honor, if I may. There was an argument that we made a circular argument that the church leaders are not sincere, therefore what they taught, they don't believe. And therefore, the case is worth nothing. But because the church leaders have concealed all these artifacts, stones, documents, primary sources, for over 100 years. Years, that argument doesn't fly. And so the church, even though certain people don't believe it, they're charged with knowing about the contents of their archives. And just as President Nelson a couple of years ago revealed in the reenactment of the video, this is how Joseph Smith created the Book of Mormon, dictated the Book of Mormon.

Video Clip 1 [00:41:53] Was he placed a brown stone or a stone in a hat, put his head in the hat, and the gold plates were covered, usually. And so that's an admission as far as we. We believe that what they had taught for decades was not true and that they didn't believe it because they had the stone in their wallet since 1907.

Video Clip 1 [00:42:09] Well, when you say not true, then we are heading into deep religious waters there.

Video Clip 1 [00:42:14] Well, but their state of mind was not true. They did not believe what they represented.

Video Clip 1 [00:42:20] Why does it matter if they believed it? In other words, here's my point. Even if everything about the church is true, the plaintiffs still may not have joined the Church, may not have contributed their time and money if they would have known about the Seer Stone or if they would have known about the translation of the Book of Abraham or other items. Even if it's true. But you're kind of fighting me on that.

Video Clip 1 [00:42:41] I'm not sure. I guess I don't understand your question.

John Dehlin [00:42:44] All right, I'm going to go ahead and pause there.

Kolby Reddish [00:42:46] Let's talk.

John Dehlin [00:42:47] What do you want to say about what's happened so far? Kolby, what's going on there?

Kolby Reddish [00:42:51] So it starts out very procedural. People may think that's weird, but that's how I've opened all of my oral arguments as well, is, you know, good morning, and may it please the court. Here's my name. Here's what I'm doing. That's just kind of the way it goes. I think court's one of the few areas we still have this weird kind of antiquated formality.

Kolby Reddish [00:43:09] I, like you hinted at earlier, John, or like I hinted at earlier in response to you bringing it up, you know, the church, or. I'm sorry, Kay's argument is really premised on talking about the change in the church's position. So she specifically goes and talks about the Book of Mormon translation and talks about the change in the use of the Seer Stone. And that's one of the. The reasons you can already see that the judges are asking her questions about, you know, how does the church autonomy doctrine affect this? She hasn't gotten here yet, but what she'll attempt to do is basically separate out the question of religious belief from actual facts that can be adjudicated.

Kolby Reddish [00:43:51] And I think if I'm understanding her argument correctly, and I've listened to it twice, she's essentially trying to say that regardless of First Amendment protections, the one narrative that the church taught or the other that it's teaching today has to have been false because they knew about these things dating back so far. Julia, I know, you know, the history is the reason you're interested in this. What did you think about her comments?

Julia [00:44:19] Well, hang on. I just have. This is a spot I had a big question on, because he tries to ask this question, like, three. Three different times, and she does. Not quite understanding. And even when I watched it this morning, I didn't quite understand what he was asking. So, like, I feel like I know what she's trying to say. Like, you just mentioned, like, the churches not being honest with their history. What was he trying to get at? What was he trying to ask? Like, if they all believe, then it's dismissed.

Gerardo Sumano [00:44:39] I think he's just saying. My understanding is he's saying if the church leaders believed it was through the Urim and Thummim and not through the Seer Stone, does it matter? Like, do you. Do you still have a lawsuit, you

Kolby Reddish [00:44:53] know, to go to your earlier comments about fraud? Gerardo, he's basically asking questions that hint at intent.

Guest 1 [00:45:01] Right, right.

Kolby Reddish [00:45:02] He's asking, like, well, if they really believe it, doesn't that just defeat your lawsuit entirely? And I guess to K's credit, she basically says, yeah, I guess it would. I think obviously then what she'd say is, the difference is I can prove that they didn't believe it because we know that they've shifted the narrative.

Fraud Claims and the Book of Mormon Translation

John Dehlin [00:45:20] So this is where I, I, this. I'm a little bit frustrated about how muddled this conversation is because so, so first of all, I was surprised that she said, yes, the, the case fails if they believe it. Because here's the scenario that, that, that seems like fraud to me. Even if they're sincere believers, let's say that they knew that Joseph Smith was a treasure digger and translated the Book of Mormon with the stone in the hat and the plates not even in the room. Let's say that they, that they believed that, you know, he, he did translate with the stone in the hat, so they're sincere believers, but that they intentionally misrepresented how, how the Book of Mormon was translated because they felt like if they told the true mechanics of how it was translated, then people wouldn't believe it.

John Dehlin [00:46:19] There can still be fraud, knowing fraud and misrepresentation, even if they believe that the Book Book of Mormon was translated by the gift of power of God. That's why I was disappointed.

Gerardo Sumano [00:46:30] I think that's why the judge was surprised that she said, no, I don't have a lawsuit.

John Dehlin [00:46:35] Yeah, it's like the judge was trying to help her almost, and she stuck a, stuck a figure in her eye a little bit.

Julia [00:46:41] Okay, so wait, so we did it. We. Hang on. I just want to plug in for a second. We did a recent episode with Sandra Tanner responding to Richard Bushman about the Seer Stone and some of the historical documents where they denied his use. And then we knew that he was using it like Lorenzo Snow had it. And like, so Joseph Fielding Smith in the history, he denies that Joseph Smith ever used the Seer Stone, even though the church has it in their, in their vaults. So like, so wouldn't it be like, even if I don't believe it, but there's historical evidence that he did use it. Does that like, I guess I'm just

Gerardo Sumano [00:47:08] saying for fraud, you still need to prove that they, there was an intention of hiding it. But like John said, there's a scenario where they still are sincere believers in God, but they still hid the reality of how it was translated because they thought it was less inspiring or, you know, or kind of weird or like

John Dehlin [00:47:30] Bushman said, too weird sounding. Right?

Julia [00:47:32] Right.

Guest 1 [00:47:33] Yeah.

Kolby Reddish [00:47:33] And there will be a question that's actually asked of the Church's attorneys down the road that kind of gets to this. But the basic question is, like, how far does this go? Like, intent is always a difficult thing in the law to figure out because we can't read people's minds, right? So unless someone sits and writes, you know, some diatribe about why they're doing something, it can often be difficult for us to discern. And I think that's one of the reasons that K tried to kind of, like, dodge the question. But, yeah, you know, again, one of my concluding thoughts is actually talking about. I've got.

Kolby Reddish [00:48:06] On the wall that I'm looking at right now, I've got a picture of Teddy Roosevelt, and one of his famous quotes is this man in the arena quote. And so while we're talking about this, I also don't want to give people the impression that, like, doing what K is doing here and making these arguments at this level is really difficult. Like, you have to keep so many things in mind.

Kolby Reddish [00:48:26] Like, two weeks ago, I argued a case in front of the Idaho Court of Appeals. And my record in that case was much smaller than the record that Kay is probably dealing with. But I still had to know, like, right off the top of my head where to find, you know, references in thousands of pages. And that's just the reality of this type of appellate work is it's very technical, it's very difficult.

Kolby Reddish [00:48:47] So I do want to give her that credit that, like, I think she was trying to rely on the record she had. And so she's basically trying to say, well, it doesn't matter on these facts, because we know that they knew it wasn't true because of the shift in narrative. But, yeah, I do think that question was a bit of a softball that she kind of whiffed. And that happens. I've done it myself.

Gerardo Sumano [00:49:06] I think she just didn't understand it, to be honest. And I. It also. This question goes back to the beginning, right? If you go with Dan Vogel's theory of how the Book of Mormon was produced, he believes Joseph believed it was inspired, but he not. But he was not delusional. He know there was no Nephites and Lemonites, and he was just making these things up in order to make people believe in Jesus. So. And he thought God approved of his methods because he was being blessed or he felt good about it, you know, and he was inspired to write it. And it kind of, you know, it's kind of what John. John's point of like. Well, he. He knew there was no Nephites and Lamanites but he still believed he was inspired.

John Dehlin [00:49:50] Maybe I'll give an example of what I'm thinking about. Let's just say that I. Let's just say that I believe that God appeared to be in the form of a talking ham and cheese sandwich. Right. And I. And that's what the record is. That's what I wrote down in my journal. That's what I believe happened. But I was embarrassed to admit that God came in the form of a talking ham and cheese sandwich. And so I told the world that Jesus appeared to be God appeared to me in the form of Jesus when I'm intentionally misleading. Actually, what happened. I can still believe that God appeared to be in the form of a ham and cheese sandwich, but.

John Dehlin [00:50:28] But deceive people by. By misrepresenting what actually happened during the visitation. Does that come close to what. And basically the judge was saying, if I still believe that God appeared to me, does. Does the case fall? And. And, you know, in theory, you know, K. K would have said no because I'm a sincere believer that God visited me. I just misrepresented what happened. Is that.

Kolby Reddish [00:51:00] Yeah. Or Kay could have said something like no. And the reason is because while the First Amendment protects religious belief, it doesn't allow you to lie about those sincere religious beliefs. So if you've got this belief in Jesus, you know, the ham and cheese

Guest 2 [00:51:16] Spanish,

Kolby Reddish [00:51:19] then you should just be. That's basically the effect of what Kay's saying is they should just be honest about what they actually believe, not have shifted the narrative over time. I think the difficulty we get with. And the reason the judges are asking about this is one, the intent alone settlement, and then two, because of those First Amendment protections, because they are so broad for religious beliefs. It's because this is one of the reasons that the church autonomy doctrine exists in the first place, is because the courts are, at least in theory, not supposed to adjudicate these types of questions. Now, again, people can feel like that's right or wrong. I personally think it's wrong if you want my policy decision. But my opinion of what the law is. Is informed by what I think the law should be.

John Dehlin [00:52:04] Yeah, but the focus of this case shouldn't be whether the prophets believe that Joseph Smith translated the Book of Mormon. It should be about whether or not the prophets and church leaders misled the world in the membership about the story of Joseph Smith's translation. Yeah, yeah. Intentionally misled them. All right, let's keep going. Let's go back to the video or audio. And we're Speeding it up just to make it go a little bit faster.

Guest 1 [00:52:33] Okay, well, I'll let you continue.

▶ Video Clip 2

Video Clip 2 [00:52:36] I'm just saying that misrepresenting one state of mind is a misrepresentation of fact. If we say that these are the correlated true facts about the church in the history and. And they're not, that's fraud.

Video Clip 2 [00:52:48] There we go.

Video Clip 2 [00:52:49] Well, let me look. Let me ask you from a. The opposite side.

Video Clip 2 [00:52:53] Okay.

Video Clip 2 [00:52:56] I suspect that most religious leaders have doubts on occasion.

Video Clip 2 [00:53:01] Sure.

Video Clip 2 [00:53:03] So if that's the case, then you can always avoid the religious doctrine, the legal doctrine involving religious matters by saying, well, at this time, that church leader didn't actually believe it.

Video Clip 2 [00:53:20] Right.

Video Clip 2 [00:53:20] Even though they may have overcome their disbelief for a variety of reasons. But does it mean that if religious leaders ever have doubts about their faith, then the doctrine that protects them from court examination of doctrine is eviscerated?

Video Clip 2 [00:53:36] No, but I think facts are different than beliefs. And I think certainly part of the faith process is deciding, do I really believe that Jesus was resurrected or not? And you have to come to some sort of, you know, maybe I do, maybe I don't. Do I believe in God? I'm not sure. I'm an agnostic. But when we have facts and we have evidence of a fact that happened, which is different than belief, which is empirically provable, my argument is that. And maybe I'm extending this a little bit or the underlying implication in Ballard is that you need to sincerely believe those facts to take them out of the fraud elements.

Video Clip 2 [00:54:08] Fraud is a misrepresentation of fact, and that's what we have here. And all these artifacts in the stone just let go of. The stone had been in the church's possession for over 100 years. And so they. They knew or were charged with the knowledge that the stone was there, and yet they commissioned artists. The only artwork that they ever displayed was Joseph Smith translating from open gold plates with no seer stone in sight. So this is a fact issue. And there has to be, I would think there has to be a line drawn between fact and belief.

Video Clip 2 [00:54:35] Well, nobody has repudiated the golden plates, have they?

Video Clip 2 [00:54:39] Nobody knows what happened. No, this is not about the golden plates.

Video Clip 2 [00:54:41] Well, but you're saying. I just want to make sure you're not saying, in fact, it was a seer stone and that gold plate stuff never happened. And that's not a religious.

Video Clip 2 [00:54:49] No, we're not saying that. We're saying that exactly what the prophet admitted. And he said, we know. Not just this is my opinion, my belief, but in his Reenactment it is. We know that Joseph Smith put the stone in the hat and the plates were covered, usually. And so that's. That process is radically different. When you join the church, you're taught that. And when my clients joined the church, you're taught that there were these gold plates and they were in scrub, described by ancient Hebrew prophets to give wisdom to the latter days. And now with this different process that the court or that President Nelson has admitted, that really casts a lot of doubt.

Guest 2 [00:55:20] And it's, it's an admission. And they've done that with the other things like the Book of Abraham and Joseph Smith having many, many wives as well. And so this is different than any church because, number one, there may be churches that negligently didn't disclose things about their religion or have different beliefs. That's fine. We're not saying that. That RICO would cover that type of thing, but we believe, and we've alleged that they intentionally made this correlation committee in order to conceal all these, all this evidence against what really happened. Because the narrative.

Guest 2 [00:55:50] I think we get your briefs, too. Okay, let me ask you specifically about your claim regarding the use of type.

Guest 2 [00:55:58] Okay, sure.

Julia [00:55:59] Before we.

John Dehlin [00:56:00] Yeah, go ahead, Julia.

Julia [00:56:01] I just want to talk about the, the artist, because the, the church's attorney comes in later and he kind of, you know, kind of dismisses that, that the church, like, oh, it's the artist's fault. But like in our previous episode with Richard Bushman or responding to Bushman with Sandra Tanner, we talked about how, how the. The church, on a couple of occasions in the Ensign, the church did publish about the seer stone in the hat. And then. But the picture, the picture that went along with it was always not the stone in the hat. It was like the sheet in front of them or Joseph Smith using, you know, looking at the plates and using his finger, like, there was no pictures, I think even before maybe 2015, of him using the seer stone in a hat.

Julia [00:56:39] So I just wanted to, like, say, like, absolutely. There was no. They didn't commission any artists to make the. The right depiction of, of this historical event.

John Dehlin [00:56:48] And I just want to add, I think it's absolutely factual that if the Mormon Church basically had as its official narrative the truth, which is Joseph Smith was a treasure digger, put a stone in a hat to find buried treasure, got in trouble with the law, and then took that same seer stone, allegedly got plates, but the plates weren't anywhere in the room. And when he wanted to produce the Book of Mormon, he stuck that Magic stone in a hat and then would dictate what became the Book of Mormon. If the church had told that both to the world and to the membership, I think, personally, I think we would have had significantly higher levels of defection from members and significantly decreased conversion rates to the church. Now, I'm open to y' all disagreeing with me, but I think the church leaders knew that and that's literally why they didn't tell the correct version.

Gerardo Sumano [00:57:45] That's my opinion for the lawsuit. It doesn't really matter what would have happened if they had disclosed it. What matters is what the church leaders believed would have happened if, and you know, if they had disclosed it and made intentionally decided not to because they, they thought that they would lose members.

Kolby Reddish [00:58:05] Okay, well, and to go off of your comment, John, I completely agree with you when we're talking about moral and ethical, so I want to set the legal stuff aside for a second, but one of the examples I use all the time is that the church talks all the time. And apologists still use this line from the last testimony of Emma Smith. All of us can probably like almost quote it verbatim that, you know, Joseph Smith could either, could neither write nor dictate a well worded letter. Right? That's. Emma says that in her last testimony, which she gave to Joseph Smith iii. The bottom line is that though the church had built that into its correlated material and its correlated narrative again for a very long time, Emma also talks about that Rock in the Hat story in response to a question from Joseph Smith iii, what is the truth of Mormonism?

Kolby Reddish [00:58:52] And she talks about the Rock and the Hat story. And in my view, to selectively choose to quote something. And again, people can look up this, this last testimony of Emma online. It's readily available. It's only like a page and a half, maybe two or three pages. But to selectively quote from something like that, you have to be picking and choosing which parts you want to build into your narrative. Right?

Kolby Reddish [00:59:18] And so to me, that is the very clear problem. Is this, you know, apologetic that, like, I know that you talked about it in that episode Julia's referenced about Bushman where he says, like, oh, the church leaders were learning this at the same time as everybody else, like, bullshit. No, they weren't, because there were people who were picking and choosing which parts were going to go into the correlated narrative. They've done the same thing with David Whitmer's address, an address to all believers in Christ. He talks about the rock and the hat in that pamphlet which the Church cites all the time to say that, you know, he never lost his testimony of the Book of Mormon.

Kolby Reddish [00:59:52] So right me is when you look and you see when people are selectively picking and choosing, there has to be intentionality there. That's the only way to do it.

Gerardo Sumano [01:00:02] And there, there's no way, there's no journals or records somewhere about all of this meetings happening and them talking about it. Like if, if we have details about the meetings, about the BYU federal investigations that Matt Harris has uncovered with his latest book, there's no way, there's no detailed meeting minutes about, about these decisions that could be uncovered potentially if this moves forward to discovery.

Julia [01:00:31] Yeah.

John Dehlin [01:00:31] Been destroyed. Yeah.

Guest [01:00:33] Yeah.

Julia [01:00:33] I was just gonna say, check out Matt's book. It's, it's called Second Class Saints, the Black Mormons in the Struggle for, for Equal Rights or something like that. Equality, I think.

Kolby Reddish [01:00:41] Racial equality.

Julia [01:00:42] Racial equality. Yeah. There you go. It's a fantastic book.

John Dehlin [01:00:47] Yeah. Okay. Should we, should we keep going?

Kolby Reddish [01:00:50] Yeah, let's do it.

Tithing Representations and Church Leadership Statements

John Dehlin [01:00:51] All right, let's keep going.

Guest 2 [01:00:55] Now, I think you, I think the complaint acknowledges that to belong to the church, you had to type to get

Guest 2 [01:01:03] the full benefits of the church. You could belong to the church, but you wouldn't be able to, for instance, go into the temple and be married for time and eternity without swearing that you're a full tithe payer. So to get the full benefits, you had to be a full time.

Guest 2 [01:01:17] My impression was that then that the plaintiffs who claim they wouldn't have tithed if they knew that the money for the real estate development was coming from the sources it was coming from, they would not have tithed. Right. Would they have left the church?

Guest 2 [01:01:35] Yeah, many, many, many would.

Guest 2 [01:01:37] There's no allegation in the complaint.

Guest 2 [01:01:38] Well, I think there's an alley. I'm sorry, I think there's an allegation that says they would not have tithed or they would have reduced the amount of tithing they paid and that the combination of both using tithing and this is principle because as per David Nielsen's affidavit from 1997, they used about 1 to $2 billion of a 6 to $8 billion annual tithing income and just dumped it into EPA, into Enzyme Peak Advisors. So, so we have people who, a few people who say, well, I don't know if I really believe the core tenets of the church, then the tithing thing wouldn't have bothered me so much. And we have other people and my plaintiffs are saying, no, they both, both of these things really would be reason to pause. And especially if we knew about the tithing, we might have researched more and gone and not trusted our leaders. Gone beyond.

Guest 2 [01:02:19] That's not an injury. The injury you're alleging is an economic injury.

Guest 2 [01:02:22] Yes, that's right.

Guest 2 [01:02:23] You paid the tithing.

Guest 2 [01:02:23] That's right. Just saying that we might have researched more and left the church altogether if we would have known that they weren't straight with us about the tithing. And the tithing is mostly material omissions. I do believe that because as the

Guest 2 [01:02:34] plaintiffs say, they would have taken the risk to their souls essentially by not tithing. If they had been told they would go ahead.

Guest 2 [01:02:42] Yes. And they would have. They would have. And I can find that during Apoli's argument, if you want me to. But they would have. They wouldn't have joined the church or tithe if they knew what they know now and what was revealed.

Guest 1 [01:02:55] In 2019, Judge Shelby ruled that the allegations on the tithing were not particular enough for Rule nine and fraud. And you contrast the allegations in this case with, say, James Huntsman, who's very precise on how much he paid for tithing, as well as relying on the five statements that are identified. Your plaintiffs are not as precise, is that right?

Guest 2 [01:03:16] I don't think that's true, you, Honor, actually.

Guest 1 [01:03:18] Do they say how much tithing?

Guest 2 [01:03:19] No, we don't say that because we don't have to plead the amount of damages, although I can tell you right now, but. But we have specifics starting in 1963 with when the church begins fostering belief that tithing proceeds, proceeds are separate from the the money making or the profit bearing subsidiaries of the church. We have 1997, when EPA was created. We have back in 2003 when the classic no tithing was used for City Creek. And that was not explained then. That was repeated in Deseret News and Ensign magazines and online. And Laura Gaddy, we have a specific allegation that her husband and she had her friend say, oh, did you know they're using tithing to build the mall?

Guest 2 [01:03:53] And she had her husband look it up. And in these two publications it said no tithing was used in city Creek in 2003 and 2007. Also, they didn't indicate that Beneficial Life was bailed out by the use of tithing.

Guest 1 [01:04:07] Isn't all the church's money tithing?

Guest 2 [01:04:09] Yes, and they admit that as much that it's all one. They put it all in one big hedge fund to use.

Guest 1 [01:04:15] Well, then why are the plaintiffs surprised that the money came from Tithing if that's the only source.

Guest 2 [01:04:20] Because, because that's not the only source. The LDS Church has many subsidiaries that are profit making subsidiaries investing tithing, you know, Deseret News from Songbooks, Bonneville International Corporation.

Kolby Reddish [01:04:34] Not to unduly, you know, criticize K. That was another big whiff there. When we're talking about the differentiation between these two funds, I can understand why she gave the answer. She, she did because that's basically she's relying on David Nielsen's affidavit, but her declaration or affidavit one or the other. But you can see where he's going is if the church's standard is that it all goes into one pool of money, he's basically saying how was anyone harmed? Basically. And what it really comes down to when we, when we'll talk about the, the Huntsman tithing lawsuit, when we look looked at the Chappelle, those statements in our coverage of the Chappelle lawsuit is the differentiation between tithing and invested tithing reserve funds was never explained to the members except in I think a speech that Gordon Hinckley had given like 13, 12 or 13 years before he made that statement about how no tithing funds would be used for building the City Creek mall project.

Kolby Reddish [01:05:32] And so that to me, to come back to a phrase I use when we talked about that back in July, that to me is patently ridiculous. That like you're expected to remember something that a church leader said from 12 years before in a completely different venue to get the context of an appropriate statement. So that was a big whiff there. The other thing, and I had this in the slides, but we didn't really talk about it. The other thing I wanted to highlight is fraud in the law, per court rules is something that has to be pled with particularity. That means that you have to give more facts in a complaint than you would in a typical case.

Kolby Reddish [01:06:06] And actually the fraud claims in the gaddy case, judge, shall be dismissed for failure to comply with those court rules, basically saying that the financial fraud element or some of the financial fraud elements basically they just weren't explained well enough in the complaint to give the church enough to give the church basically like enough advance notice per court rules to actually get to the bottom of that particular issue. So when they're asking about Rule 9, that's what they're asking about is this requirement that the courts have that in a fraud case along with other types of cases that you plead, those with specific, like with a very, very heightened level of specificity.

John Dehlin [01:06:46] Did you Want to add anything to that, Julia?

Julia [01:06:48] I just have a question. So he, one of the judges says something to the effect of where the members are taking risks to their souls by not paying tithing. I don't know, was he getting at belief or what was he getting at when he asked that question?

Kolby Reddish [01:07:00] I think that question is aimed at like, he's basically signaling this is all First Amendment protected stuff what you're talking about, because he's saying, you know, whatever they did with that information under their belief system at the time or under the church's belief system, it has these religious overtones. And so he's basically signaling, I think, and it's difficult to read the tea lives of those types of questions, but if I were doing so, I would say he's basically saying, isn't this all First Amendment protected stuff? You're saying that they would have acted differently, but they would have acted differently in light of, like, these eternal consequences or potential eternal consequences.

Julia [01:07:40] Okay.

Kolby Reddish [01:07:41] And he's basically signaling First Amendment.

John Dehlin [01:07:43] Isn't he also saying, oh, go ahead, Julia.

Julia [01:07:45] Oh, no, no, that was good.

John Dehlin [01:07:46] Isn't he also saying, why are you bringing up City Creek Mall or Beneficial Life members when they give their tithing, just assume the church is going to buy stuff with it. So what is, what is Ensign Peak or Beneficial Life for the City Creek Mall have to do with anything?

Guest [01:08:02] Right.

Gerardo Sumano [01:08:02] Well, yeah, and I think there's, I. It is pretty clear that there's at least one judge that's really familiar with either the LDS Church on the claims, and the other two are kind of not really understanding what the plaintiffs are arg. Are mentioning. But I think what they, what, what they're not understanding each other. And Gaddy's attorney, she's thinking, when, when he asked, doesn't it all go into one pool? She's thinking inside Peak.

Guest [01:08:31] Right.

Gerardo Sumano [01:08:31] Which was revealed in 2019. Members didn't know back then when City Creek was being built that there was something called Ensign Peak. So when Gordon B. Hinckley talked about, about the commercial entities of the church, I think most members would have believed, you know, the Desert News and all these other commercial entities sustain themselves and they also produce income that the church then she uses for commercial purposes, like, and, like City Creek. And I think the judge is like all putting it all together in one one thing.

Kolby Reddish [01:09:09] Yeah. And that, that temporal element there, Gerardo, I think is really important because David Nielsen's report didn't come to light until late 2019. And I think that's the piece that the judge isn't Understanding. Like, while it's true that they aggregated all the funds into Enzyme Peak. Nobody knew that until David Nielsen's whistleblower report.

Gerardo Sumano [01:09:29] But it's also important for. For Gary's argument to be that. That the church considers the entirety of Ensign Peak as tithing, as sacred funds, because then they can pin. They can, you know, pin Gordon B. Hinckley statements about not using tithing into the fraud element. You know.

John Dehlin [01:09:52] I see, I see, I see.

Julia [01:09:54] Right. So, Hank, because Hinckley said there's tithing and then there's not tithing, and we're going to use not tithing for them. All right. But then they're saying that it's all the same.

Gerardo Sumano [01:10:02] Well, yeah, because there's statements from church leaders and, you know, and people who work at Ensign Peak saying that they see it all as tithing, even if it's.

Julia [01:10:11] Yeah, the lawyer says that later. You're right.

Guest [01:10:13] Right.

Kolby Reddish [01:10:13] Okay, Very. The very particular statement is that Hinckley said so. He says no tithing funds will be used. We will use funds from the church's commercial interests, something like that, and invested reserve funds. And it's in the same sentence that he's talking about commercial interests. And so to me, that's one of the reasons that I think Huntsman's lawsuit has legs, is that I don't think from the context, it's clear that what the church is saying today is what Hinckley was representing to the membership. I would have walked. I remember that statement being made because I was like a teenager when Hinckley made that. And I remember walking away from him talking about that in conference.

Kolby Reddish [01:10:48] And people even in my area, which was very devout, had a lot of questions about, like, how is the church paying for this, like, multibillion dollar project? And so Hinckley gave this assurance in general conference, if I remember correctly, basically saying, like, I think anyone would have walked away from his statement with the. With the assumption that no tithing funds were being used. Yeah, commercial funds. Right.

Gerardo Sumano [01:11:12] That the invested refund, the invested funds came from the commercial entities, not from tithing.

Julia [01:11:19] And you said the Gatti case happened before Huntsman's case. Is that what you said?

Guest 2 [01:11:23] Correct.

Kolby Reddish [01:11:23] So Huntsman started in 2021, and Gatti started mid. In 2019, before we even knew about the whistleblower report.

Julia [01:11:30] Okay, that's what I mean to ask is like, before the whistleblower report from David Nelson.

John Dehlin [01:11:34] And I'm going to just make an admission. I'm super slow. I just realized this is being argued in Denver Colorado, not in Utah. And I'm guessing none of these three justices have ever been Mormon. They're all never Mormon justices, is that right?

Kolby Reddish [01:11:49] As far as I know. I. I didn't look up their background, but they don't sound like one of them.

Gerardo Sumano [01:11:55] I mean, mentioned the Book of Abraham and. And it was a lot more familiar with the lingo, I think. And you'll see it more when the church's attorney comes up. The other two seem a little bit.

Julia [01:12:06] Do we know. Do we know if the attorney, Kate Burningham, is. Is Mormon or was Mormon? She said we. Okay. She said we at one point. I wasn't sure if she meant we as in the three, or.

Guest 2 [01:12:16] Or including her.

Kolby Reddish [01:12:17] She's been open about the fact that she's an ex.

Julia [01:12:20] Okay.

Gerardo Sumano [01:12:20] Yeah.

Julia [01:12:21] Okay. That's interesting to know.

John Dehlin [01:12:23] All right, all right, let's keep. Let's keep rolling.

▶ Video Clip 3

Video Clip 3 [01:12:32] From broadcasting. Not just conference, not just LDS things, but other companies and other things. And they've always been told that this is a profit making. These are profit making subsidiaries. This is not the spiritual aspect or the typing that's being used. And so I just don't think that. I mean, I think. And then in 2018, there's some graphics in the ensign just before they resigned that say this is what we use tithing for. And nowhere does it disclose that we invest principle into commercial activities. So I see that your time is expired.

Video Clip 3 [01:13:00] Yes.

Video Clip 3 [01:13:00] Thanks.

Video Clip 3 [01:13:01] Thank you.

John Dehlin [01:13:02] Wow. That's all she got to do? That's all she got.

Julia [01:13:04] Well, she gets to speak again in a little bit. Yeah.

Church's Defense Strategy in the Appeals Court

▶ Video Clip 4

Video Clip 4 [01:13:11] Good morning. Your Honors, may it please the court. I'm David Jordan. Here on behalf of the Church of Jesus Christ of Latter Day Saints. The appellants are asking this court to reverse and remand to the district court for a jury trial on whether Joseph Smith, the church's founding prophet, saw one member of the Godhead or two in a vision in 1820, and whether God inspired him to translate the Book of Mormon from plates engraved by ancient prophets using a stone known as the Urim and Thummim, or instead using an opaque seer stone.

Video Clip 4 [01:13:42] Let me. Let me have you pause there, because that's what you. That's what I need help with. How does our case and the allegations in our case involve resolving internal church disputes requiring adjudication of questions of religious doctrine? In other words, you say that plaintiffs are asking us to say which version of the vision is the true one. But in fact, what they're saying is there were two versions. We don't care which one is true? If we would have known that there were two, we would have headed for the exit. So I don't see how we're resolving any religious doctrine. We don't care which one.

Video Clip 4 [01:14:15] It does involve the resolution of church doctrine, because, in effect, what they're asking for is a heresy trial. It's a determination of what is the orthodox belief. As if there were some monolithic understanding of every detail of church history by every leader of the church or every church member from 1820 to today. And as the court said in Watson B. Jones, the law knows no orthodoxy.

Video Clip 4 [01:14:43] Well, whichever is true, not concerned about. The plaintiffs aren't bringing that to us. But what they are bringing to us is that a seer stone was used, which, if that were disputed, I would understand. Okay, now we're getting into religious waters. But it sounds as though the church agrees that a seer stone was used and that was something that was not revealed for decades. And the plaintiffs say if only. If only someone would have told us that it was a seer stone instead of gold plates, at least for some of it, we would have walked. And I don't know why this earth stone would have been concealed except for that. So that's what I need help with.

Video Clip 4 [01:15:16] Isn't that a bizarre thing to say? They say, specifically, we don't dispute that the Book of Mormon is true. We don't dispute that it was translated by the gift and power of God. We dispute whether it was translated using the Urim and Thummim, a clear stone or an opaque stone. That almost sounds silly. Churches have the right to define, develop, and evolve their own history. The inconsistency that she's pointing out, I would like to make clear, alleged in the complaint is the use of a seer stone versus a piece of art, a painting painted by some early member of the church, depicting Joseph Smith sitting at a table looking at gold plates.

Video Clip 4 [01:16:00] Well, who's to say he didn't? Who knows who what happened in 1820, or whether he sat at a table and looked at gold plates. We're asking that. She's asking the court to intrude on the miraculous, on matters of faith. Church history is full of references to the seer stone. Church history is full of references to the Urim and Thummim. It's full of references to the Joseph Smith studying the gold plates and how 200 years later we're supposed to decide exactly by what process.

Video Clip 4 [01:16:36] Nobody's asking that. I think that. That. That is not their argument, that they're asking the Court to say, was it the seer stone or was it the gold plates? Which clearly we can't do. Their argument is, you all have your beliefs and keep them, and we respect that, but don't join us in without telling us key information like there was a sear stone. We don't. I don't think they're here to prove that untruth is a truth of Delds Church. They're saying, if we had only known these facts which weren't revealed, we wouldn't have participated. And you all do as you please.

Video Clip 4 [01:17:12] Well, what I would say to that, your honor, is this. What they're asking the court to prescribe is the manner in which the church teaches its doctrine. What things you should emphasize, what things you should particularly point out to members of the church or to prospective members of the church when you're teaching the gospel of Jesus Christ to them in the history of the church. And to say, well, what you need to do as a church, what courts are telling you you must do as a church, is put particular emphasis on the method by which the Book of Mormon was translated and any disputes about that or anything that hasn't been given emphasis in the past. That is an intrusion on a deeply rooted religious matter.

Video Clip 4 [01:17:56] Is there any limit to that principle, which is to say, can a church conceal anything, even if it thinks, wow, we're going to lose half our membership?

John Dehlin [01:18:04] All right, before we get into the intrusion part, let's just discuss what his approach is. Kolby, do you want to comment on that? He's basically trying to frame it as a heresy trial.

Julia [01:18:17] That is he intentionally misunderstanding what they're trying to say.

Gerardo Sumano [01:18:21] I mean, the church has always done this, and they did it on. Even if they have to make up church doctrine that doesn't exist and has never been taught. They did it on the Arizona case, where they literally. The lawyer, the lawyers of the church literally told the court that it was doctrine from the church that bishops could not disclose the abuse of and that it was a. A deeply held religious belief.

Kolby Reddish [01:18:46] That bishop, even more. Even more offensively, I would add, because I followed that particular case very closely. They celebrated the win, which to me is disgusting. Like, I don't care who you are. That's disgusting that they celebrate the win in that particular case. I didn't mean to cut you off, Gerardo. Sorry.

Gerardo Sumano [01:19:04] No.

Guest 2 [01:19:04] Yeah.

John Dehlin [01:19:05] It's kind of smart. I don't know. Is it? I guess it's not smart because it doesn't seem to be working. But what they're trying to do is say Things like the court shouldn't be telling churches what its doctrine is or isn't. The court can't adjudicate religious doctrine that the court can't put on a heresy trial to decide if the church leaders were committing heresy or not, if they were orthodox or not. Who cares if it was a clear stone or an opaque stone? He says churches have the right to divine and develop their own history.

John Dehlin [01:19:40] Who knows what really happened? And, you know, it's like the church is overflowing with references to the seer stone. It's all over the place. And, you know, the church can't be telling. Courts can't be telling churches what they should emphasize and point out. I mean, it's. If this were going to work, it would be effective way of muddying the water. Right? Right, Kolby.

Kolby Reddish [01:20:07] Yeah. And I mean, what he's explicitly trying to get the court to do is to agree with Judge Shelby and say that the First Amendment just doesn't allow the courts to go there. And I was actually surprised, to be honest, listening back, how the panel really didn't seem too receptive to that argument. And maybe. Maybe I'm reading too closely to the tea leaves, but I like how the one judge held his feet to the fire and basically said, that's not their argument.

John Dehlin [01:20:31] Yeah, I love that.

Julia [01:20:32] Right? I love that.

Kolby Reddish [01:20:33] I counted it twice where he basically says, you're straw manning their argument. That's not their argument. Their argument is you need to. I mean, he goes on this diatribe about this parade of horribles, and part of me just wants to go, and this is what I've said in all of these lawsuits. Like, what's the end result of these lawsuits? We're going to make churches tell the truth. Like, that's defending. We can just say whatever we want and the First Amendment allows us to. And, like, maybe that's what the first will be held to hold to. But, like, what's the downside here? Like, the church should have just picked its, you know, its honest history and told that honest history. What. What is so damaging about that? It's. It's. To me, it's just absurd that they defend this stuff so aggressively.

Julia [01:21:17] And he's just about to say that. And when we get started. What were you gonna say, Gerardo?

Gerardo Sumano [01:21:21] I was a little bit alarmed that he made a misrepresentation to the court where he said that the church history is full with references of Joseph looking directly at the plates.

Julia [01:21:31] Yeah, he did say that.

Gerardo Sumano [01:21:32] My understanding is there's no. Literally not a single reference to that

John Dehlin [01:21:37] event of him not having the plates in the room.

Julia [01:21:39] You mean because he's saying. He's saying there's references of Steerstone, the glasses, and him just looking at the plates. Right?

Guest 2 [01:21:45] Yeah, but.

Julia [01:21:46] But if the church history is not full of him looking at the plates, there's none. Yeah. So, yeah, as far as I know, the history. The history. Right.

John Dehlin [01:21:54] The actual history.

Guest 2 [01:21:54] Yeah.

John Dehlin [01:21:55] The depictions, but not the history are full of it.

Julia [01:21:58] So maybe that's what he means.

Kolby Reddish [01:21:59] I also think you can tell that he's clearly a believing, active member just because he. He says church history. Like, instead of, like, you know, the church's history or the Church of Jesus Christ of Latter Day Saints history, he's like. Just like, well, church history is full of these types of references.

Gerardo Sumano [01:22:12] The Gospel of Jesus Christ also.

Julia [01:22:14] He's. He's like, how silly is it that they believe the Book of Mormon but they're having trouble whether he translated with a seer stone or the. The glasses, like, he doesn't say that word. But, like, the urim and Thummim, like, it's so silly. Like, why are we worrying about method when we know the Book of Mormon is true, but, like, if you knew these things, you would stop believing or these plaintiffs or whatever might stop believing the Book of Mormon is true anyway? Yeah, it was. Yeah. Yeah. But this next part was the part that really caught my attention and what we're about to hear.

John Dehlin [01:22:41] So the question is that the justice is asking, are there any limits.

Julia [01:22:45] Right.

John Dehlin [01:22:46] You know, to these protections? Right, Kolby?

Kolby Reddish [01:22:48] That's what he asked. Yep.

Gerardo Sumano [01:22:49] Prediction right now is that the decision is going to come to 2 to 1. And this is the one before you

Kolby Reddish [01:22:56] play, and especially because I've made some comments about, you know, K. Whiffing a few of the questions. One of the things I want people to appreciate is when you go in and you prepare an oral argument like this, they get to just, like, pause you and ask questions whenever they want. They can cut you off in the middle of a sentence. It's really difficult to, like, return to your talking points or advance your argument when you're sitting there in the middle of, like, grappling with this question. And you may not even fully understand it. So, however, this question is great. And I agree with Julia. I love this part because the judge basically asks him, well, are there any limits to what you're saying? And this is. This is the church attorney's response.

John Dehlin [01:23:34] All right, let's roll it,

▶ Video Clip 5

Video Clip 5 [01:23:38] Jeff, on this. We better put it in a vault somewhere. Is there Any limit on what the church can conceal and not be subject to civil recall.

Video Clip 5 [01:23:46] I think there is no limit at all on what a church is required to teach or not teach. Emphasize or not emphasize. I think that would be a deep intrusion into what you described as deep religious waters.

Video Clip 5 [01:24:03] Let me switch to the other part of their claim.

John Dehlin [01:24:06] Do you agree that you want me to pause that?

Kolby Reddish [01:24:08] Yeah, let's just pause it for one second. This is, again, where I want to be really clear about the distinction between talking about moral and ethical decisions, which I find his answer abhorrent, and legal decisions. Because I actually think from a legal perspective what he's saying may be. And I don't want to disappoint people, but that may be the rule that comes out of this case, is that there is no limit. Because if we start opening this door, where does it go? We're going to basically require churches to. Like I jokingly said, we're going to require churches to tell the truth. But you can see how problematic this becomes when you take it outside of Mormonism.

Kolby Reddish [01:24:44] Right. Let's say we start talking about, just like general Christianity, and we talk about the problems with an empty tomb or a resurrection. The bottom line is that all religious beliefs are based on believing things that are impossible.

Kolby Reddish [01:24:57] That's just a reality, is that they're all premised on believing things that don't happen in our everyday experience. And so I wouldn't be surprised if that was a judge trying to, like, get him to constrain what he's saying. But again, I want to build out this distinction between what's moral and ethical versus what's legal. Maybe the First Amendment protects religions to say whatever they want. It could set a dangerous precedent, and maybe the pendulum will swing back. But if you want my honest opinion as a lawyer, I think that's probably the way this case would resolve is consistent with Judge Shelby's direction that if you start opening the door to allowing people to sue religions based on their historical claims is that.

Kolby Reddish [01:25:39] Where does that. Where does that line end? Can you adjudicate whether Jesus rose from the dead? I don't know that you can. And that's one of the. Sorry, go ahead.

John Dehlin [01:25:48] No, no, I was interrupting. Finish. Go ahead and finish.

Kolby Reddish [01:25:51] No, I think I was finished. I think. I think, again, I just. When we talk about these legal concepts, I always want to be really clear that I'm talking as a lawyer. When I'm talking as a lawyer and I'm talking as a person. A person. When I'm talking as a person, As a person, I don't agree with that. The church should just have told the truth in the first place. But whether them not telling the truth makes it legally actionable, I think is a different.

John Dehlin [01:26:10] I'm just super frustrated because it's not about what it. Belief has nothing to do with this, in my opinion. It's all about whether they misrepresent the facts, whether they misrepresent the history, whether they misrepresent, Whether they knowingly and intentionally misrepresent the history in a way that would apply undue influence to cause someone to give money or to join. It's all about knowingly misrepresenting the facts. Has nothing to do with beliefs. And I. I wish it were made more clear.

Guest 2 [01:26:46] Yeah.

John Dehlin [01:26:48] All right. Should we keep going?

Julia [01:26:51] Yeah.

▶ Video Clip 6

Video Clip 6 [01:26:53] Religious doctrine, that's what I'll call it, does not apply to their claim that the church misled them about how tithing funds would be used because they were told, go sit forward, you've turned up the MIC as far as you can. Sorry about that. Do you agree that they. That the plaintiffs can bring a RICO claim based on misstatements regarding how tithing funds would be used, in particular, whether principle, whether the funds would go directly to the real estate development by the temple?

Video Clip 6 [01:27:32] I do. I do not agree. First of all, I think Judge Shelby is right about his application of 9B to their RICO claims.

Video Clip 6 [01:27:39] So he. Let me ask you about that. He said the allegations of reliance for not. There's nothing in 9B about reliance. 9B does not cover reliance. It says you have to state with particularity the circumstances constituting fraud or mistake.

Video Clip 6 [01:27:55] Right.

Video Clip 6 [01:27:56] And the circumstance, of course, reliance is an element of fraud.

Video Clip 6 [01:27:59] So it's not that. That's not what 9B covers.

Video Clip 6 [01:28:02] All right.

Video Clip 6 [01:28:02] You might have an argument under Iqbal Twombly, but you don't have an argument or 9B.

Video Clip 6 [01:28:07] All right.

Video Clip 6 [01:28:07] I certainly won't dispute that with your honor. But let me go to the heart of your question. The statement that they reference is one made in a sermon by the then church prophet Gordon B. Hinckley in 2003 in which he said that tithing funds would not be used for the development of City Creek. And then he said, instead of tithing funds, we will use revenues from commercial enterprises owned by the church and earnings on invested reserve funds.

Huntsman Case and Boundaries of Religious Deception

Video Clip 6 [01:28:36] That's not their. I think you have a pretty good argument with respect to that statement. But they also reference other statements endorsed by the church and their publications which said that principle is not used, et cetera. And in fact, it was used. That's their allegation.

Video Clip 6 [01:28:53] In fact, they do not allege that principle was used and not earnings or interest, nor could they. That's the dispute in the Huntsman matter. And, and it. It boils down to this. It ultimately comes to a definition of tithing, which is also a deeply rooted religious matter. Let me explain it in this way. Tithing as the church defines it, and the church has the right to define it. Under the autonomy doctrine, tithing means the donation. It's the sacrificial free will offering of a member.

Video Clip 6 [01:29:26] It's not earnings on bond coupons. It's not stock dividends. Earnings is what a tithing is, what you give. And so when President Hinckley distinguishes between tithing and earnings on invested funds, he's making a distinction, if you will, between principal and interest. And they cannot allege, and they do not allege, unlike James Huntsman, that tithing, in the sense of their donations were used to build City Creek. And I will point out.

Video Clip 6 [01:29:58] Isn't there an affidavit to the contrary in the record?

Video Clip 6 [01:30:00] No.

Video Clip 6 [01:30:02] Explain why that affidavit doesn't contradict what you're saying.

Video Clip 6 [01:30:05] Okay. That's an affidavit at page 106 of volume four of the record. And what it says is that this man attended a meeting, he's also a disaffected former member. In which a. An executive of Ensign Peak, a management of a management, a funds management company employed by the church, said every. We think of everything as tithing. We think of everything as the widow's mite. Well, that's simply an expression of a view of an executive, not a church ecclesiastical leader, that everything, whether it's the original tithing donation or whether it's earnings on it.

Video Clip 6 [01:30:48] It goes further than that. That he alleges that the use of principle was hidden by having the money go to this other entity, which then put it into the real estate development. But, you know, I don't see it

Video Clip 6 [01:31:05] that way at all.

Video Clip 6 [01:31:07] You cannot see it that way, but couldn't one draw a reasonable inference to that effect? And you could dispute this at trial or maybe with further affidavits on summary judgment, but at this stage of the proceeding, hasn't the complaint alleged enough with this attached affidavit to suggest there's evidence that money from tithing was essentially, maybe through a couple channels, but was directly used for commercial development? And contrary to what church official church

Video Clip 6 [01:31:40] statements have said, I think that's. I don't think that's consistent with the record Tithing is the donation. Tithing is not earnings on the donation. That's what President Hinckley said was used. And there is no allegation in this record. There is no allegation in the second amended complaint about tithing itself having been used as opposed to earnings on tithing.

Video Clip 6 [01:32:03] I can look at it again. I thought that is alleged in that affidavit, and I didn't feel that the your brief respond to that fully. So that's why I wanted to pursue that here. I, I, I.

Video Clip 6 [01:32:14] What they try to do is what Mr. Huntsman tries to do and conflate the two and say, well, it's all tithing, but it's not all tithing. As president police statement makes clear. And I'm now intruding on Mr. Share's time.

Video Clip 6 [01:32:25] We'll give, we'll give him his three minutes.

Video Clip 6 [01:32:27] Any other questions for me?

Kolby Reddish [01:32:29] I think probably just in the interest of time, John. So there's an amicus that argues on behalf of the church's side. He's really just going to rehash a lot of the same arguments, to be completely frank. And then K goes again. But I don't know that we should listen to that. Maybe we should, because I know you have a hard cut off in 14 minutes. Right.

Gerardo Sumano [01:32:50] Well,

John Dehlin [01:32:52] I'll run a little late if there's something that the listeners of yours need to listen to.

Julia [01:32:57] I like the last five minutes because she references the Packer quote about not telling all the truth. And I think that, like, I like the ending. If you wanted to skip over the

Gerardo Sumano [01:33:07] attorney for the evangelicals was not very good.

Julia [01:33:09] Right.

John Dehlin [01:33:10] So what do you know around what time that starts?

Julia [01:33:13] I don't, I, My time is based on what was this morning, but it's, it's like the last five minutes or so.

John Dehlin [01:33:19] Okay.

Kolby Reddish [01:33:20] She probably reserved about five minutes.

▶ Video Clip 7

Video Clip 7 [01:33:22] Maybe go back in court's decision and hosanna Tabor squarely reject alleged that by reference.

Video Clip 7 [01:33:30] Is it okay if we include K or not?

Video Clip 7 [01:33:32] What?

Video Clip 7 [01:33:32] I'm going to give you five minutes. I think that'll be enough. We'll see.

Video Clip 7 [01:33:35] Okay,

John Dehlin [01:33:37] we're keeping the amicus brief and we're going straight to Kay's final words.

Julia [01:33:40] Wait, did we want any comments on, on the tithing thing?

John Dehlin [01:33:43] Yeah, yeah, really quick, Julia.

Kolby Reddish [01:33:46] Well, I'll just say again. You know, he said, he said that this was clear if you listen to Hinckley's statement, but again, it wasn't clear according to the statement that he's actually talking about, like this distinction between tithing and Invested tithing reserve funds or invested reserve funds isn't clear in that statement by itself. It's only clear when you read it in conjunction with the statement Hinckley had made. Like it's something like 12 or 13 years before that. And I just think that's ridiculous. Like if you clicked on like, you know, a Terms and conditions page and you had, you had clicked on something 12 years earlier, that's the effect of what the church is saying is like that as long as you understood the terms, maybe possibly 12 years before that, that you should have had that in mind.

Kolby Reddish [01:34:33] I just think that's ridiculous. No one can look at that statement. That is the substance of the, the Hinckley lawsuit. And again, we went through that in depth in our podcast back in July. No one can look at that statement in isolation and tell me that they walked away from it with the understanding that tithing funds were just not going to be used, period. Hinckley was like saying it with that end in mind. I'm almost positive. And that's one of the things about these individuals and about church leaders behavior that gets so frustrating to me is their behavior is so predictable. They often have a problem with like out and out lying, but they have no problem with saying things that are super, super misleading that will give people a false impression, but not out and out lie.

Kolby Reddish [01:35:16] And that's the thing about Hinckley's statement that really bothers me and why I hope the Huntsman lawsuit has legs. Because the end result is simply that, that churches shouldn't be allowed to lie while soliciting donations. It's just as simple as that. Guys, I understand. You know, the last time we podcasted about this, I got a lot of pushback even here at work. Like I got people who called my office trying to get me fired, calling me a religious.

Kolby Reddish [01:35:40] Someone who wrote me a 17 page letter telling me how I don't have any understanding about the second Amendment's protection of religious freedom. And you may be thinking, wait a second, doesn't that actually fall within the scope of the First Amendment? And you'd be brighter than the person who spent 17 pages writing me about how awful I am. But that's, that's. I guess my takeaway is like, all we want is for the church to tell the damn truth. Why is that so difficult for members to square? Like, are we really asking for that much? If the church is asking for funds and saying we're not going to use these funds that you give us for this commercial interest project, why is it so hard to hold them accountable for the fact that they did without people knowing. That's all these lawsuits have to do with.

Julia [01:36:23] Yeah, so. So the judge was saying. He's saying that people. There's tithing and then there's the ensign. There's the. The temple things that they do with tithing, and then there's the other things. And he's saying it's all the same. And then the. The. The Jordan was saying, I don't think that's consistent with the record. So he's trying to say it's. It's different. Can you just summarize what he was trying to say?

Gerardo Sumano [01:36:44] Well, he's saying that the interest was used in. To build and to build the mall and not the actual principle typing.

Julia [01:36:52] Okay, so it's principle and interest that he's arguing.

Kolby Reddish [01:36:55] He's trying to say that from Hinckley's statement alone, that Hinckley said we wouldn't use tithing funds. Funds, but that what ultimately was used was invested tithing reserve funds, and that that was apparently permissible. Again, the only way to really, like, have that in mind was to have this statement that hinckley made, like, 12, 11, 13 years before he made that statement saying, we're not going to use tithing reserve funds. Where he talked about, here's how the church runs its finances. That's. That's what he's talking about. About is that he's basically saying, you know, the. The plaintiffs are pointing to this affidavit from David Nielsen saying they commingled everything. They used everything the same way. They treated it all as tithing. And he's trying to say, well, no, like, you know, maybe this disaffected member, he also has to, like, get that dog whistle out.

Guest 2 [01:37:46] Right.

Kolby Reddish [01:37:47] But that. That's what he's talking about, Julia, is he's trying to say Hinckley didn't make misrepresentations because guess what the legal word for misrepresentation of that nature is. It's fraud. And that's. That's what he's talking about. That's why he's trying to save that statement.

Julia [01:38:02] Yeah, gotcha.

John Dehlin [01:38:05] Yeah. It seems like he's trying to argue for the right to mislead the members any way they want to. You know what I mean?

Kolby Reddish [01:38:12] I mean, he literally was asked, is there any limit? And he said, no, there's no limit

John Dehlin [01:38:16] on what the church is required to teach or not teach or emphasize. It's. You know.

Julia [01:38:23] But, yeah, yeah. And I really like Kay's response to him just her whole section was really good.

John Dehlin [01:38:28] That we're about to listen.

Julia [01:38:29] That we're about to listen to.

Guest 1 [01:38:30] Yes.

John Dehlin [01:38:30] All right. All right, let's do it. Let's pull it up and. And hear how K responds.

▶ Video Clip 8

Video Clip 8 [01:38:36] Mr. Jordan's points, your honor. We did, absolutely. As your honor pointed out, it was in the early part of the Second Amendment complaint alleged that by referencing Exhibit 5 of Mr. David Nielsen, who was an employee, not just a disaffected member of Ensign Peak Advisors, where he says that the president of Ensign Peak Advisors, Roger Clark, is the one that said, oh, we consider it all tithing and that we have to be careful because we don't want them to know what it's used for. Meaning the commercial investments. That is a quote, and that's in his affidavit. That's actually a paraphrase, but it's in his affidavit that they didn't want the members to know what the tithing was used for.

Video Clip 8 [01:39:14] And the problem here is that when, when President Hinkley in 2003 at April conference says that we're going to use and we're going to use. Hang on. Investment income from reserves. They don't say from tithing reserves. They still, it's very vague. It doesn't reference tithing. Two of my three clients are female, and this was said at a priesthood meeting where only men were allowed to attend. And it. They claim it was later published in the Ensign. But. But still, it was a very big statement was made.

Video Clip 8 [01:39:46] So the women wouldn't have even heard the statement that we're not going to use tithing for commercial. For commercial uses. That wasn't heard by the women either.

Video Clip 8 [01:39:58] That's right. No. They heard in general conference in April of, I believe it's 2003, that President Hinckley said, no tithing will be used for City Creek Mobile. And.

Video Clip 8 [01:40:08] And it wasn't called when it was made at that later event, President Hinckley's proviso that we can use investment income.

Video Clip 8 [01:40:20] Actually, actually, it was two times in the 1990s, your honor, when President Hinckley used the earned interest on invested reserves. That was in two. Two times in the 1990s at priesthood meetings where women weren't allowed. And then it was about 10 years later in 2003 or four, where he said at general conference where my clients attended and heard or read it, that note tithing was used for City Creek and did not define what investment on reserve.

Video Clip 8 [01:40:45] Did he use that term, income on invested reserve?

Video Clip 8 [01:40:48] I think he did, but he didn't define it. And so again, we go back to meant. My clients had the idea because it was fostered by the locals, the local ward leaders that, that tie. That the church, because it has these profit making subsidiaries that it was from the profit making side of the church. There's the profit making side that's under the corporation of the bishopric and then there's the spiritual under the corporation of the president. And so these are pretty much separate entities. And.

Video Clip 8 [01:41:13] And we come to find out in 2019 that all the funds are commingled. And we did allege that contrary to what Mr. Jordan said. If I just may get to. The crux of the matter is, is that we understand that Ballard prohibits the interpretation of doctrine. We cannot overstep into the inner workings of the church to interpret doctrine. We're not saying that, that God, you know, inspired Joseph Smith. We're just saying we can't litigate that in accordance with ballard. But we are saying we are challenging the application of doctrine. They have not identified exactly what religious freedom they're trying to protect. And it sounds to me like they're trying to protect fraudulent activities by concealing things that are very important material facts, material artifacts from members.

Video Clip 8 [01:41:56] And, and the First Amendment doesn't protect that. And under either religious clause in our opinion. And that's our argument. The other thing as to Mr. Share is that none of these other churches that he's talking about, he made a reference to the Shroud of Turin. Well, maybe they do have it and it wasn't disclosed. We don't know, but they haven't admitted as much. There's no admission and, and there's no indication that there was a committee formed to propagate what's. Basically,

Gerardo Sumano [01:42:22] this is why Elder Oak says that the church cannot apologize because as soon as they come clean or they apologize, then there's the admission of fault and. And then they can be sued.

John Dehlin [01:42:33] Is that like Law Advice 101, Kolby, never apologize?

Kolby Reddish [01:42:37] Well, there are different lawyers that give you different advice. I don't give that advice because.

John Dehlin [01:42:43] Because you're traumatized by your church.

Kolby Reddish [01:42:47] I didn't have a church court. They never invited me.

John Dehlin [01:42:50] No. Church of origin. Church of origin.

Kolby Reddish [01:42:52] Church of origin.

John Dehlin [01:42:53] That's right. Yeah, that's right.

Julia [01:42:55] I want to point out also.

John Dehlin [01:42:56] No, but you said you don't give that advice. I was kidding. I didn't mean to interrupt you, but remember I.

Kolby Reddish [01:43:02] You're right, Gerardo, that that's one of the reasons he takes these like, ridiculous positions. But again, like the downside is just like, tell the truth. So, like, I don't have to deal with that, you know?

Guest 2 [01:43:14] No.

John Dehlin [01:43:15] But if they apologize for misleading people and admit that they misled people knowingly, doesn't that then leave them liable for other lawsuits because now they're admitting fraud, basically.

Kolby Reddish [01:43:27] It would depend a lot upon the conditions of the apology. I honestly think that Dallin Oaks opinion on offering apologies has a lot more to do with Dallin Oaks as a person than Dallin Oaks as a lawyer, if you want my honest opinion.

Guest 1 [01:43:42] Okay.

Kolby Reddish [01:43:43] Not all lawyers, I guess, would give that advice that Dallin Oaks has, but Dallin Oaks has certainly given it. So there you go.

Gerardo Sumano [01:43:48] The real question is, what should the Church of Jesus Christ be doing? Right.

Kolby Reddish [01:43:54] It is the real question.

Gerardo Sumano [01:43:56] I wanted to be avoiding lawsuits or should be doing the right thing.

Julia [01:44:00] Right. There's another thing in Matt Harris's book where he pointed out in the 90s, when people were starting to give black members of their churches just any general church that more freedoms or membership capabilities where they were different churches were offering apologies to them. Very public apologies, very sincere. But the Church of Jesus Christ of Latter Day Saints never did that. And I just think that's like, the church should have done it. They didn't do it. And maybe the reason why is because they didn't want to be sued. Like, I don't know. But I just wanted to point out that other people have apologized for their harmful teachings.

Guest 1 [01:44:32] Yeah.

Kolby Reddish [01:44:33] And there are even protections in the rules of evidence for, like, apologies or fixing problems after the fact that can't then be used against you in court. So this idea that, you know, that's where Dallin Oaks is getting it from. I don't think so. I think really he's just. Well, I won't tell you what I think he is. He's an apostle of the Lord Jesus Christ, according to him.

John Dehlin [01:44:55] All right, should we. Should we finish up? I loved it that she was making. Making this point. I think it's really important. She's saying what religious doctrine or belief are, you know, needs to be protected here. It. It's just like. It's just like the proclamation of the family we learn was not a revelation. It was literally some legal maneuver to try and establish a doctrine prohibiting same sex sexuality or transgender identity, you know, expression that you needed to have some way to codify your doctrine because there isn't a revelation about it. And so they're creating doctrine and theology and beliefs that really aren't historically Mormon so that they can then have a legal defense. It's really frustrating. Right?

Kolby Reddish [01:45:50] Yeah, it was to give them enough interest to intervene in certain cases. That's literally what it was created to do.

Julia [01:45:58] Right.

John Dehlin [01:45:59] But in this case, they're trying to protect their right to deceive and mislead people. They're not defending faith or baptism or repentance or. Or, you know, belief in God or an afterlife or even in the Book of Mormon. They're. They're literally just wanting to protect.

Julia [01:46:14] And that's a good point.

Guest 2 [01:46:16] Yeah.

Guest 2 [01:46:17] Or.

Kolby Reddish [01:46:17] Or how about. How about we have a religious freedom case dedicated to, like, beliefs about usury? Right. Usury was this old and New Testament practice against charging interest to people. How come. How come religious freedom is never about lending people money and allowing them to pay it back without interest? It's always about discrimination against, like, miscegenation laws. It's always about discrimination or it's about the right to defraud people with no consequence. Like, why is it only always those things? And I guess I'm. I'm kind of straw manning, to be fair. There are good religions out there that do lots of good things, but man, my religion of origin sure gives me a lot of complicated feelings.

John Dehlin [01:46:57] No, you could, you could just. If you hear religious freedom in 2024, you could replace it with bigotry or fraud. And that's pretty much what they mean when they say religious freedom.

Guest 2 [01:47:09] Yeah.

Julia [01:47:10] Yeah.

John Dehlin [01:47:11] Is that fair?

Kolby Reddish [01:47:12] Unfortunately, yes, I think that is fair

John Dehlin [01:47:15] because it's never like, genuine expression of belief. Right.

Gerardo Sumano [01:47:19] Well, no one, no one's persecuting people in the US for genuine expression. Expression of belief.

John Dehlin [01:47:24] Yeah. Yeah. Not that I know. All right, we've got, like, one minute left. Let's go ahead and play it Untruths.

Predictions and Final Thoughts on the Lawsuits

Guest 2 [01:47:31] Just as Boyd K. Packer said, we have to tell the truth, but we don't have to tell the whole truth. And that was back in the 80s, and he was an apostle for the church. And that. That's their. That's their. That's in our Second Amendment complaint. And that's their whole sort of. They go along with that. They believe that. And even Mr. Jordan said that he believes that religion should be able to conceal anything, intentionally conceal anything. And I don't think that's the First Amendment law. And I think that is where reliance comes into play. Material emissions are a substitute for reliance here because the material mission, in cases of material omissions, reliance is inferred. And that's what we've done in the RICO case. And I think I'm over my time.

Guest 2 [01:48:06] Well, I Also think you've discussed all the issues that came up.

Guest 2 [01:48:09] Okay. So thank you very much.

Guest [01:48:12] Thank you.

Guest 2 [01:48:14] Thank you, Council. Councilor excused.

John Dehlin [01:48:18] I thought that was a pretty strong conclusion, Kolby. What'd you think?

Kolby Reddish [01:48:22] No, I thought. I thought her end was great. I thought she really got comfortable. It also shows a real skill to respond to the other side's arguments and incorporate them into what you're saying, particularly in response to a question. So I thought that was really great.

Gerardo Sumano [01:48:37] Really not. I mean, kudos to her, I'm sure. It's a difficult thing to do, to go in front of three judges and be answering questions, but at the end, you're literally arguing against these guys who are wanting to commit fraud and. And say that it's okay. You know, it's kind of ridiculous, and it does get people fired up.

Kolby Reddish [01:49:00] It doesn't. You know, there's this saying that pigs get fat and hogs get slaughtered. And if you want my kind of, like, overall conclusions, I. I like the K. Ended with highlighting that. That with them basically saying, hey, they're saying, there's no limit on this. You've got to do something about this. Because while I do think the law tends to favor the church's position in this, I really do. I think, actually they're taking things too far. May be the thing that ends up either having the pendulum swing back just through, like, public support of, like, hey, religions can't be frauding people with no consequences, or it may cause the panel to decide to go against what Judge Shelby decided in this case to. In the first instance.

John Dehlin [01:49:41] Yeah. So your prediction, Kolby, based on the. I mean, the only one. Only one of the three judges was really talking, Right?

Kolby Reddish [01:49:49] It's difficult for us to say because I don't know their voices well enough. And they were all men.

John Dehlin [01:49:54] Okay, There was a.

Gerardo Sumano [01:49:55] No, the three of them, but there was one that talked the most.

John Dehlin [01:50:01] Oh, go ahead, Kolby. What's your prediction?

Kolby Reddish [01:50:03] Sorry, I was just trying to answer your question. I think my big. My big takeaway is I think the church is likely to prevail here. And the reason is because unlike the Huntsman lawsuit and unlike the Chappelle lawsuit, which is just starting, both of those lawsuits were very careful about not implicating the First Amendment. Like I said earlier, none of the four judges that looked at the Huntsman case thought that the case implicated the First Amendment at all. The church raised those grounds. And every single judge who looked at it, including the ones that ultimately sided with the church. There were two. They said, no, the First Amendment isn't implicated here.

Kolby Reddish [01:50:39] And I think because of that, that more targeted approach is more likely to succeed than this case, which does bite off some, at least arguably according to Judge Shelby. And some of the questions seem to indicate from the panel does bite off some of the First Amendment piece. However, I still want to say I think that pigs get fat, hogs get slaughtered piece is something that's important to keep in mind because the other thing that people need to understand about the legal system is things swing back and forth all the time.

Kolby Reddish [01:51:07] We're experiencing a lot more change at the federal like SCOTUS level, Supreme Court of the United States level than I wish we were. But the reality is that this is the way things have gone for a long time. Things swing back and forth, back and forth, back and forth. And so, you know, it's entirely possible that cases like this where the church takes things too far and basically says there's no limit to our protections under the First Amendment, we can just full on defraud people and it doesn't matter is maybe that ends up swinging the pendulum back. I don't know.

Kolby Reddish [01:51:37] My other kind of takeaways are, you know, just to bring people back to that case. We talked about that, they talked about a few times, this church autonomy doctrine. If you're suing a church for something that you could sue another organization for, it's likely to, or it's more likely to succeed. Succeed more, less likely to run afoul of the First Amendment. And that's one of the reasons that I do think that the Huntsman lawsuit and the Chappelle lawsuit, which are more targeted, do have a better way. The, the last thing, and I don't want to be a downer again, but the last thing is that even if Gaddy were to prevail at the 10th Circuit, the church can still appeal the 10th Circuit decision either to have an en banque rehearing like we'll talk about on Wednesday for the Huntsman case, or they can always appeal up to the federal Supreme Court of the United States like the top scotus.

Kolby Reddish [01:52:28] And it's just a reality that the federal SCOTUS right now is a 6:3 conservative majority and has in the past two years overruled lots of precedent that set limits on First Amendment protections. There was the case of Kennedy v. Bremerton School District and the Masterpiece Cake shop decision, the 303 creative decision. All of those indicated really, really strong support for religious freedom. So that's the other reality that I hate to be a downer about, but even If Gaddy were to prevail, I see the current makeup of the Supreme Court siding with, you know, religious freedom and siding with broad First Amendment protections. But again, one of the geniuses about the American system is that everything can be changed, including the First Amendment, rfra, state.

Kolby Reddish [01:53:12] State laws like the Religious Freedom Restoration act are exactly that. And in reality, I think maybe it's time that the pendulum swings back a little bit the other direction and says that, you know, religious institutions don't have this license to just, you know, do whatever they want.

Guest 1 [01:53:28] Yeah.

John Dehlin [01:53:29] Do you have a prediction, Gerardo? Oh, go ahead, Gerardo.

Gerardo Sumano [01:53:32] Oh, yeah, I think I. I said with Kolby, the only thing I would say, I would add, is that it would be amazing to have a church lawyer arguing in front of the Supreme Court of the United States that religions should be allowed to commit fraud and they should be allowed to conceal and hide evidence and just tell their members whatever they want in order to keep membership. And it would be. It would be just great the, the new news media coverage of that. And, and just overall, the. The arguments would be amazing to just display the churches, the. The re. The reality of the church in a national level.

John Dehlin [01:54:17] Yeah, I, I hope the Supreme. I hope this gets appealed to the Supreme Court, and I hope this gets argued for the Supreme Court.

Guest 2 [01:54:22] That would.

John Dehlin [01:54:23] That would be legendary. Like the Smoot hearings, right?

Julia [01:54:25] Oh, yeah, for sure.

John Dehlin [01:54:28] Julia, any final thoughts for me, Julia?

Julia [01:54:30] Well, I don't know if I have any predictions where this would go, but I think this really shows the church's priorities where they want to continue to hide their history. They don't believe in informed consent, and they want to control the narrative. Like, this is what they're trying to push for. And even if it doesn't go anywhere, we're seeing what the church really cares

John Dehlin [01:54:46] about, and they're willing to use any means necessary to deceive both those judges and the membership, and that they're literally going to fight for the right to deceive the membership. That's why I think this is significant, even if it's going to go nowhere. And that's why we should be sharing it and talking about it and publicizing it. And I want to encourage everyone listening. Subscribe to Mormon Stories podcast on YouTube and on Facebook and TikTok and Instagram.

John Dehlin [01:55:13] Comment, share this like it and, and start a conversation with your family members and ask them if they have any thoughts on whether the church has the right to deceive its members. And if they think like this, this attorney, this lawyer for the church was upholding their understanding of what the Church taught us all about what, what honesty really is. Because I don't think this attorney, I think this attorney acted in a semi effective way as an attorney to try and muddy the issue. But I don't think he, he, I don't think he was a super. Acted with, with a high degree of integrity in terms of his arguments. That's just my opinion.

Gerardo Sumano [01:55:53] Yeah, I think there could be a podcast, a whole podcast dedicated to analyzing the church's lawyers arguments in photo from courtrooms. I think people would be appalled at the things that they.

Julia [01:56:05] Oh yeah, for sure.

Gerardo Sumano [01:56:06] They argue and at the end they're representing a client.

Guest [01:56:09] Right.

Gerardo Sumano [01:56:09] I think the church, I mean we know Lori Valo did not allow their lawyers to use any kind of defense that would disparage Chad Dabel. And the church could do the same with her, their lawyers and tell their lawyers, you know, you're not allowed to say in court that we, that we should be permitted to commit fraud. It's evidently that the church is just giving them a free pass to argue whatever they need in order to, to, to win. And, and that's, that's a little bit disgusting, I think.

Julia [01:56:40] Yeah, for sure.

Upcoming Huntsman Appeal and Closing Remarks

John Dehlin [01:56:42] All right. Well, Kolby, so Wednesday, I guess James Huntsman's lawsuit is going to get its appellate hearing out of San Francisco. It's going to be live streamed and so join us on Wednesday afternoon to hear whether that case is what, return to return to trial. What are, what's the verbiage there?

Kolby Reddish [01:57:10] What's the, yeah, he would be remanded to, to basically proceed with trial. Again, the church does have the option there. Even if they lose at the en banc rehearing, which is on Wednesday, they do have the option to attempt to seek a writ of certiori, which is how you ask the federal Supreme Court to hear your case. So they would likely do that.

Kolby Reddish [01:57:32] Whether the court would or wouldn't hear and whether, you know, what they would decide if they did hear the case is always interesting. And, and I do think, you know, to come back to your comments, John, and to Gerardo's comments when we're talking about.

Kolby Reddish [01:57:47] I've tried to keep it very clear when I'm talking from my legal perspective and I'm talking from my, my person perspective and that's the other thing I guess I want people to take away from this discussion is the fact that the church may prevail here. I think they probably will. Doesn't mean that it's still not something worth talking about. It doesn't mean we can't still have those conversations about ethics and morality and acting like the church asked us, asked us and taught us to act because there are other remedies that we can have that aren't just in courts of law.

Kolby Reddish [01:58:18] So that's kind of my closing thought. I guess the only other thing I'd say is, yeah, we're excited to talk about the Huntsman lawsuit on Wednesday, and I promise I'll be a little bit more optimistic because I do think that has longer legs than the Gatty case.

John Dehlin [01:58:31] And it's a busy week because we're also going to be doing part three of our coverage of the Hulu hit smash series Secret Lives of Mormon Wives. And Nemo's getting excommunicated. On Thursday, we're going to be live streaming a live vigil to support Nemo. I don't think we planned on it being such a busy week, but that's just the way it's going to be.

John Dehlin [01:58:54] Crazy short. Thank you for that super Chat donation, he writes. Have some of my tithing that I haven't paid in a decade. He's donating that to Mormon Stories. Put it to actual good use. Love you, Mormon Stories. Thank you, Cray. Short one for that super Chat donation, we also received another Super Chat donation from Gorf. So thanks Gorf, and thanks to everyone who donates to Mormon Stories, the Open Stories Foundation. We couldn't do this without you. If you want to become if you value this type of programming, if you want to see it continue, we do pay our participants, please go to MormonStories.org click on the Donate button and you can become a monthly donor and we'll keep providing this type of content. All right, well, Gerardo, Kolby, Julia, any last words?

Julia [01:59:43] Yeah, this is super interesting to me. I really like this.

Gerardo Sumano [01:59:46] Yeah.

Kolby Reddish [01:59:48] My one last little thing, John, if you don't mind, is people have teased me before about being the pro most prolific Ex Morgan Mormon Podcast or without a podcast. And I'm still happy to join Mormon Stories panels or panels on other channels regarding Mormonism. But I actually will be starting in conjunction with my my wife who's helping produce and run things in the background. I actually will be starting in about the Next Month, a YouTube series dedicated to legal education and helping kind of explain some of these legal scenarios, legal terms, legal jargon, and really walking point by point through big federal Supreme Court cases that have helped shaped our civic institutions and help basically explain those things to other people. I've hinted at that on a few other channels. So I thought I'd just do it here, if you don't mind.

John Dehlin [02:00:35] I love it. What's it going to be called?

Kolby Reddish [02:00:37] We're still trying to finalize a name, but I'm, I am really partial to common law. Uncommonly explained because the idea is we want to talk about, you know, our civic institutions and how they've evolved the way they have because they're really is a method behind the madness.

John Dehlin [02:00:51] Well, when you get the name and the link, give it to Julia. She'll put it in the description in the show notes, and then people can click on it if they listen to this episode in future weeks and years.

Kolby Reddish [02:01:02] Great.

John Dehlin [02:01:03] All right, thanks for having me. You do great work. Thank you. Kolby and Gerardo and Julia and Maven, thanks for helping make today possible.

Julia [02:01:10] Yeah.

Gerardo Sumano [02:01:11] Yeah.

John Dehlin [02:01:12] All right, we'll see you guys later in the week. And thanks, everyone, for joining us today on Mormon Stories. Good job. To Kay Birmingham and her legal team and, and the plaintiffs for trying to fight deception and fraud. We, we appreciate that as, as we do all, all the plaintiffs in all these cases and the, the attorneys that represent them.

John Dehlin [02:01:35] We think that fraud's bad and we think that fraud should be prosecuted. So anyway, thanks to everyone for joining us today on Mormon Stories. Thanks again for the donors. Thanks for everyone who commented. Please subscribe to this channel, like it, share it, comment on it. And thanks to those who donate. And if anyone wants to become a monthly donor again, you can do that@mormonstories gmail.com sorry, @mormonstories.org click on the donate button. Become a monthly donor. If you have feedback for us, go to our new website. There's a feedback form you can fill out if you want to be a guest on Mormon Stories Podcast. You can also click on the new application form and apply to be on the show.

John Dehlin [02:02:14] We, we always love new guests. If you have feedback, please email us@mormonstoriesgmail.com we'd love to hear from you. Be good to each other, be kind to each other, and we'll see you all again soon on another episode of Mormon Stories podcast. Take care, everybody.

Transcript © 2026 John P. Dehlin. All rights reserved. Brief quotations are welcome with attribution and a link to mormonstories.org; all other use requires written permission.