Introduction and Episode Overview

John Dehlin [00:00:01] Hello, everyone, and welcome to another edition of Mormon Stories podcast. I'm your host, John Dehlin. It is February 1, 2025, and the headlines are all around us today. I'll share a couple of them just to give you a sense for what today's episode about is about.

John Dehlin [00:00:23] The Deseret News headline is unanimous. 9th Circuit Court panel dismisses James Huntsman's Tithing lawsuit and the Church response. The subtitle is judges grant summary judgment to Latter Day Saints, saying, quote, no reasonable juror could conclude that the church, the Mormon Church, misrepresented the source of funds for the City Creek Project.

John Dehlin [00:00:51] That's what the Deseret News has to say. The Sally Tribune gives a a different headline. The Sally Tribune says, the LDS Church prevails. As Federal Appeals Court Tosses out James Huntsman's tithing lawsuit. The 9th U.S. circuit Court of Appeals finds no reasonable juror would believe allegations that the faith misrepresented how it spent money on City Creek Center. And I think I would add beneficial life with the little that I have retained about the case. So we are here to break it all down for you to do some analysis. And two of my favorite legal eagles are in the house with us today. We have Kolby Reddish back. Hey, Kolby.

Kolby Reddish [00:01:41] Good morning, John. Good morning, Gerardo. How are you?

John Dehlin [00:01:44] Great. And, Kolby, tell us your. Your legal background and kind of what you do.

Kolby Reddish [00:01:49] Yeah. So I'm a licensed attorney. I practice in Boise, Idaho. I'm also an adjunct instructor for the local law school, and I've done that for six. Yeah, six years. So love delving into these types of cases and getting to share a little bit from. From my world. So excited to be here.

John Dehlin [00:02:07] We're so glad to have you. And, of course, Gerardo. Gerardo is. Is a legal ninja slash special weapon. And people don't know that, but it's absolutely true. I would bet my life on it. Gerardo, tell us why you're involved in a legal episode.

Gerardo Sumano [00:02:25] I. I really care about the law and about how the government works. And it's something. A topic that I'm really interested in probably just as much as Mormonism. And it's something that I constantly read about and research about and follow really closely. So, yeah, that's. That's basically why I'm here.

John Dehlin [00:02:49] And. And in the preparation for this, there was an exchange of texts where Kolby's basically saying, gerardo, why aren't you a lawyer? You know the law better than many of the people I work with. I'll just say it that way. Is that True, Kolby.

Kolby Reddish [00:03:02] Yeah, that is true.

John Dehlin [00:03:05] All right, well, Kolby, you and Gerardo have the stage. I'm going to play the role of the uninformed listener, because that's probably pretty accurate. And we'll turn the time over to you. Other than me just saying, please, like and subscribe to this episode, Whether you're on YouTube or Facebook subscriptions, help grow our channel. It helps with the algorithms. We're thankful to all the donors who donate to Mormon Stories. You make this possible. And if you value this type of content, I just want to invite you right at the outset to go to MormonStories.org, click on the Donate button, become a monthly donor, and we'll be able to keep doing stuff like this. All right, Kolby, take it away.

The Ninth Circuit's Tithing Case Opinion Explained

Kolby Reddish [00:03:51] All right, so this is a follow on from episode we did back in September, where we actually live. Listened to this oral argument. So people who are interested now in how the case has resolved. The Ninth Circuit panel issued its decision yesterday, Friday, January 31st. So we have gone through the opinion. We're going to break down the opinion for you, but I don't want to bury the lead. If you'll pull up the slides, John, and we can go to the. Go to the second slide.

Gerardo Sumano [00:04:21] Wait, should we start. I'm sorry. Should we start just by saying our initial reactions when we heard the news before reading the opinion?

Kolby Reddish [00:04:32] Yeah, sure.

John Dehlin [00:04:33] Okay. Yeah. You want to go first?

Gerardo Sumano [00:04:37] Yeah. Well, I'll say that I was. I felt disappointed, but then also I was pretty shocked that this was a unanimous decision by a panel of 11 judges, I believe.

John Dehlin [00:04:53] Correct.

Gerardo Sumano [00:04:56] And so, yeah, that was my initial reaction. Like, whoa. Like, 11 judges looked at this and said, there's no way a reasonable juror could. Could come on the other side. And then just thinking about the idea that when. When you're suing someone, an organization for fraud, you didn't expect to have all the. All of the details, any evidence at the beginning of the case. That's why there's discovery where you know you're gonna find more information that will support your case, hopefully. And so the idea that they would just take this decision based on. On the statements, which are kind of murky,

John Dehlin [00:05:45] and.

Gerardo Sumano [00:05:47] And not allow for. For it to go forward. It was a little bit shocking. But what about you guys? What do you think will be.

John Dehlin [00:05:55] I don't want you to give the ending away if you don't want to, but what do you want to share at the outset?

Kolby Reddish [00:06:00] No, that's okay. No, I think this is a good idea. My first. I mean, when I First just saw the, the headline and I hadn't actually had a chance to read the opinion. I wouldn't say I was all that surprised. If folks remember back in September, John, you're lovingly kind of pushing me to project what I think is likely to happen. And I especially because we had talked relative to the other tithing lawsuits and I had basically said, you know, we know that the First Amendment is going to play a heavy role in this case, even if not like explicitly the grounds on which the court decides the case.

Kolby Reddish [00:06:32] It's always going to be this overlay in the background just because religion does have a very preferenced role in our society. And so I wasn't all that surprised by the result when we get into the opinion. I was a little bit surprised by the opinion and how the court decided to get there. So I guess that's, that's the part that I was a little quizzical about when I read it yesterday and when I was breaking it down was I wanted to read how the court actually got to that result because I think that's one of the most important parts of this.

John Dehlin [00:07:04] Yeah, yeah, I'll say. On a personal note, I do feel like the Mormon Church has been dishonest in, in how it makes money, how it uses its money, how it hides its, its wealth from the membership in the general public. I think the SEC decision, I think the City Creek scandal was, was a big problem for me. But also I think the Ensign peak, you know, whistleblower David Nielsen and all that's come about from that just shows just such a pattern of multi, generational deceit and corruption and dishonesty that of course I'm personally, you know, bummed that, that this decision happened. I'm also, you know, personal friends with James.

John Dehlin [00:08:01] You know, James, you know, was, was a Mormon stories listener when he was, you know, trying to figure things out back when I was living in Logan and he was living in Texas. And so we've been, you know, we've been in touch over the years and, and I care about this guy and his wife and I know that this was a sincere effort for him for, for him. And he felt personally deceived, he felt personally misled and this was personal. I, you know, I don't, this is just speculation. I, I think that if the church would have, this was so personal and sincere to James that I think if the church would have just paid him out, I think he would have probably dropped the case.

John Dehlin [00:08:42] And that's speculation. But my, my point there is just to say That I think he was sincere and really felt deceived and misled. And, you know, I'm guessing he's a Huntsman in theory. He'll get by, you know, without a judgment, but he felt hurt and misled. So I'm sad for James and for his family, although he'd probably say he's great because he's super resilient.

John Dehlin [00:09:08] But then I'm also, yeah, super surprised that, you know, I mean, even in a state or a district that would seem quite. Or in a circuit, I should say, that would seem quite balanced politically, that. That a unanimous decision like this would get made, that there would be no dissent.

John Dehlin [00:09:33] And the only reason I'm not, like, shocked is because I know the way I've been through my own legal endeavors. I've seen how judges work. I've seen how lawyers work. I've seen how the process works, and it's super messy, and it can be very political.

John Dehlin [00:09:54] And. And that's not to say that it was necessarily politics that resulted in this decision. Although I can say that if. If James were to have won this case, given the current structure of the Supreme Court, I'm. I'm guessing it's guaranteed it would have died in the Supreme Court if it. If it in any way prevailed. So those are just some of my reflections. But overall, I'm. I'm sad and disappointed, but I'm also, you know, inspired by James and his courage, because he didn't need to do this.

Gerardo Sumano [00:10:28] He.

John Dehlin [00:10:30] He didn't need to go public with this. And absolutely, there's no question that in one sense, he won in the case. One, because he brought so much. He helped, along with David Nielsen and others. They have helped bring so much visibility to the deceit and the corruption in. In the church. And by the way, I don't hate the church. I just think it hasn't been upfront about its finances. Anyway, those are my. Those are my feelings.

Gerardo Sumano [00:10:57] Love that.

Kolby Reddish [00:10:58] Yeah, I love that, John. Especially because as we go through the opinion, you know, and I know people are going to be disappointed with the result, but those are kind of. What you just said is going to bookmark, I think, really nicely with some of my closing thoughts, which. Which is that this was never necessarily about winning this particular case. I. I don't think for Mr. Huntsman or for really anyone involved in these cases, it's really about the money. I know that's something that, you know, the little junior armchair apologists like to claim that it's just about trying to get money back. I think it's more about using the courts to express.

Kolby Reddish [00:11:33] Exactly. Like you said that. That expression of disappointment with the church and how it has handled its, its finances and, and just the complete lack of disclosure that we dealt with for decades and decades in the church. We really wouldn't know so much of what we know today except for people like James Huntsman and for David Nielsen. And that's a reality. And sometimes we don't win, but sometimes we bring these things out into the light and we allow people to know better how the church operates, how it, how it deals with these situations. And that is its own important victory in a way. So I, I know people are going to be disappointed, but that's basically what I wanted to say.

Kolby Reddish [00:12:12] Is there, there still is a victory here in making the church take certain positions and getting those things on the record so that people are better informed about its practices.

John Dehlin [00:12:22] Yeah, yeah.

Gerardo Sumano [00:12:23] And just, I, I don't want to give the ending away, but anyway, so we can move on.

Background on the Huntsman Lawsuit

Kolby Reddish [00:12:28] Okay, well, let's talk about. Let's talk about how we got to the decision yesterday. So for folks that remember back in September, we did this. I'll just make this very quickly, but Huntsman's. The Huntsman case procedure is kind of interesting. Huntsman's case was heard in district court in California. It was dismissed by the trial court judge, as John's talked about, on a summary judgment motion. The basis of a summary judgment motion, or the idea behind a summary judgment motion is you're essentially saying before discovery has happened, before we're even at the case, where we're before we're at the stage, I mean, where we're, you know, taking witness testimony or doing any type of trial work.

Kolby Reddish [00:13:07] It's essentially allowing the defendant or the plaintiff in rare cases to say, you know, I'm going to accept your version of the facts as true, and I still win. So it's important that people understand that's basically the procedure upon which the course the case was dismissed by the trial court judge. And so when that decision was rendered a few years ago, Huntsman appealed that to the Ninth Circuit. And then almost miraculously, I would say in a 2:1 panel decision on that appeal, the Ninth Circuit panel, the first panel, reversed, finding that when red and light most favorable to Huntsmen, the church could be found by a reasonable jury to have committed fraud.

Kolby Reddish [00:13:45] The church then requested what's known as an en banc rehearing, where 11 judges from the circuit again then rehear the case. Those are rarely granted. That's what we watched back in September together. And that's where the case was heard. And then the decision was rendered on Friday unanimously in favor of the church. So if you'll go to the next slide, John, I'll just say.

John Dehlin [00:14:07] I'll just say really quickly that would I. If you would have asked me after watching the en banc hearing, I would have been willing to bet a lot of money that at least some of those justices, you know, would have. Would have ended up ruling the other way. Would you. Would you both agree?

Kolby Reddish [00:14:29] Yeah. I'm surprised there weren't at least, you know, one or two, maybe even three dissents, frankly.

John Dehlin [00:14:36] Out of nine. Right.

Kolby Reddish [00:14:37] 11 out of 11.

John Dehlin [00:14:39] Okay.

Gerardo Sumano [00:14:39] Yeah.

John Dehlin [00:14:40] Okay.

Gerardo Sumano [00:14:41] Yeah, I agree. Especially because I. I think this is something important to mention, Kolby, for people to understand when you sue someone civilly, the. The plaintiff gets kind of like a more. Kind of a little bit more leeway on. On the claims they're making. Like. Right. Like, I guess where I'm trying to get is like the. Kind of the. The. You. You put a little bit more like, even if all of the pieces of the evidence are not there, you give the plaintiff kind of like, reasonable doubt that the case could move forward. Can you explain that a little bit better than that?

Kolby Reddish [00:15:27] Nope. I'm happy to. So, yeah, what you're referencing there is the summary judgment standard or even the motion to dismiss standard. And that's why, at a high level a few minutes ago, I said, it's basically saying to the judge, if you're the defendant, so if you're the church in this case, they basically have to say, we're going to accept the best version of what James Huntsman says. The facts are in this case, and we still win. That's the stage at which the. The church won this case. So that's basically what you're talking about, Gerardo. Reasonable doubt is kind of another standard.

Gerardo Sumano [00:15:58] I know, for. For criminal.

Kolby Reddish [00:16:01] Yep, that's the criminal standard. But, yeah, it's essentially saying on the defense side saying, we accept their version of facts, the best version of their facts, and we still win. And that's where the. The church won this case ultimately.

Gerardo Sumano [00:16:15] Yeah. All right.

John Dehlin [00:16:18] All righty.

Kolby Reddish [00:16:19] Okay, so let's. If you'll go to the next slide, John. We'll just briefly touch on the fact that this is one of three tithing cases that are ongoing at this point.

John Dehlin [00:16:30] Just one second.

Kolby Reddish [00:16:31] Yep, no problem.

John Dehlin [00:16:33] Okay, here we go.

Kolby Reddish [00:16:35] Perfect. So the Huntsman case, you can see there in the middle. In the middle. We just talked about its procedural history the same week Actually, that the en banc rehearing hearing took place. There was also the oral argument in the Gaddy case back in September. So that case, I think, has a much tougher time as far as running into the First Amendment. From a First Amendment perspective, it is directly challenging some of the church's truth claims and doctrinal claims.

Kolby Reddish [00:17:04] And so that case is still pending at this, at the 10th Circuit. Realistically, because our legal system kind of works on the system of precedent, the Huntsman decision will likely be cited in the Gaddy decision, even though it's in a different circuit, and so it's technically not binding on the court.

Kolby Reddish [00:17:21] I suppose it is possible that the 10th Circuit could decide the other way. And then we have a circuit split that would typically over time, as those circuit splits accumulate, that's typically where then the Supreme Court of the United States basically has to decide which of the circuits is right. So that is a possibility. I think it's a very remote possibility. And then the district court case that we've discussed a few times, Chappelle is currently pending in front of Judge Shelby. I think he heard.

Kolby Reddish [00:17:49] Heard the church's motion to dismiss a few weeks ago. I actually didn't get a chance to listen to that, Gerardo, but I know that you did. Do you want to speak to that?

Gerardo Sumano [00:17:57] Yeah, I was there in present for a couple hours at the courthouse. It was pretty interesting. But so initially, you know, it seemed like Judge Shelby was grilling the church quite a bit at the beginning, but then he pretty quickly moved to the church's side, in my opinion.

Kolby Reddish [00:18:22] And

Gerardo Sumano [00:18:24] sometimes it's very hard sometimes to know where judges are landing. You know, sometimes they just want to ask questions to try to figure out what's, you know, like all their arguments. But yeah, it was, it was kind of clear to me that Judge Shelby was agreeing with the church on, on the religious question with, on the church autonomy doctrine part.

Kolby Reddish [00:18:50] Yep. On the First Amendment piece. Yeah, that makes sense. And so that's, that's a view that we'll talk about here in one of the concurrences, or actually both of the concurrences. So just to refresh people on basically what James Huntsman was arguing, what was

John Dehlin [00:19:03] an issue really quickly, really quickly, Kolby, maybe you're going to talk about this later, but maybe that asked pre show whether the Huntsman ruling is likely to, you know, in any way impact the Chappelle hearing or the, the, the result of the Chappelle case.

Kolby Reddish [00:19:20] Yeah, so the, the Chappelle case is actually in the 10th Circuit as well, because Utah is separate from the 9th Circuit. You guys are in the 10th Circuit, Idaho's in the 9th Circuit. Where they drew the lines is kind of confusing because Idaho's like, you know, bundled together with Oregon and Washington, I think, as well as California, and, and people in Idaho sometimes are much more conservative than the. The Night Circuit reflects. So they get angry.

Kolby Reddish [00:19:47] So realistically, it will have a huge effect, John, because the way our, the way our legal system works is that, you know, we deal with precedent, we deal with stereotecis, and typically, judges are going to look to what other judges have done when they're deciding very similar cases now as a, like, strict legal matter, because the Huntsman cases in the Night Circuit, it's not necessarily binding. It doesn't mean that the 10th Circuit or the Chappelle case has to reach the same result, but it's very likely to, because oftentimes judges are going to look at what other judges have done and rely on the work that's been done there and the analysis that's been done there to basically say, hey, look, we're doing this the same way as the 9th Circuit did.

Kolby Reddish [00:20:26] So that's what I expect will happen is that this decision will be cited in both the gaddy opinion when it's rendered at the 10th circuit, as well as Judge Shelby's decision on the district court level in Chappelle.

John Dehlin [00:20:38] Got it. Okay.

What Huntsman Was Arguing and the Fraud Claims

Kolby Reddish [00:20:41] So just to refresh people on exactly what Huntsman was arguing, what was at issue in this case, Kind of going back to Gerardo's questions about, you know, where were we at, what stage were we at, and why does it matter? James Huntsman contended that the church made various false statements about the nature of funds that it used in City Creek in the City Creek Mall commercial project, while it solicited tithing donations from him in the amount of $5 million. I'll just pause there for a second and say, John, you mentioned Beneficial Life. So Beneficial Life was also a feature of Huntsman's lawsuit. Basically a transfer of funds from Enzyme Peak to Beneficial Life to basically bail out this failing insurance company that the church had an interest in.

Kolby Reddish [00:21:20] The reason I'm not going to really talk about Beneficial Life is because at every stage of the proceedings, Beneficial Life, both by the district court, the original panel, and the en banc panel, has basically just been dismissed out of hand. And, and the reason for that is because the church never made any specific representations about Beneficial Life as it did with City Creek. And so that's one big difference. They just really only look at the City Creek Mall project transfer. Does that answer your question a little bit about beneficial life, John, or do you have any other.

John Dehlin [00:21:51] Yep.

Kolby Reddish [00:21:51] Okay, great. So Huntsman contended that certain statements of the church, made in particular one from Gordon Hinckley in 2003 that we'll look at in just a minute, were false, according to leaks from Ensign Peak insider David Nielsen, and that, in essence, the church used tithing funds to build the City Creek Mall project when it said it would not. The church contended that it did not mislead based on reading each statement in a particular light. And we'll touch on that. The church also argued that the case itself violated the First Amendment's church autonomy doctrine. Ultimately, the majority panel agrees with the first argument that the church, when read. When reading Hinckley's statement in a particular light, that there was no effort or attempt to mislead James Huntsman, and that no reasonable juror could disagree with that conclusion. Gerardo, do you think I accurately summed that up or do you have any additional thoughts? You followed this?

Gerardo Sumano [00:22:43] Yeah. Yeah, that makes sense. Just something I just thought about. My understanding is that in civil cases, the burden of proof is a lot lower than in criminal cases, right? In civil cases, you just have to prove that it's, like, more likely that would have happened than not. While criminal cases, you have to prove beyond a reasonable doubt. So the fact that they would say, like, no reasonable juror would conclude that it's more likely than not that the church committed fraud, like, it's kind of insane to me.

Kolby Reddish [00:23:15] But just to bring that up, yeah, it's a pretty unequivocal win for the church. I agree with you there in the sense that. Yeah, that's. You've got that exactly right. So in a normal civil case, the burden of proof, or the standard of proof, actually, burden of proof is who has to prove it. Standard is the level of proof is preponderance of the evidence. Now, in fraud cases, which was the allegation here, and we'll touch on what fraud exactly means, according to the majority here in just a moment. But in fraud cases, sometimes that standard can be elevated. So, you know, beyond a reasonable doubt is the standard of proof that people are used to if they.

Kolby Reddish [00:23:52] They follow true crime stuff or they've ever seen a criminal case, preponderance of the evidence is kind of the civil normal standard. And then there's actually a standard in between, which is sometimes called the clear and convincing evidence standard. Now, typically, fraud will fall in that latter Category, like, you have to prove a little bit more than just a normal civil case. But we didn't even get to that stage.

John Dehlin [00:24:14] So, yeah, really quickly. I'll just incorporate a few comments as they come in. Let's see. Kolob choir queen writes, james Hudson was brave. He was willing. Take one for the team. If you talk to him, please send him love. Thanks for that. There's what I think is maybe a silly comment. No disrespect, Mark. Mark Crispin writes, the Mormon church paid off the judge and all the jury. Disgusting. First of all, there was. There was no jury. Right.

Kolby Reddish [00:24:51] Can I. Can I say something about that which is, you know, I know not everyone is interested in this legal stuff like Corrado is. He's a glutton for punishment. I have to be interested in it because I do it. But one thing I think that's important about this is we need to be accurate about the way we talk about this. And saying something like that. No offense to Mark again, but saying something like, the church paid off the judges and paid off the jury. One, there wasn't a jury. And two, I just don't believe that that's the. I wouldn't believe that that's the case, that the church isn't going to engage in that type of behavior.

Kolby Reddish [00:25:22] You know, whether we want to fully recognize it or not. I think the best explainer for how the church acts, how the church leaders act, is that they are sincere believers. Now, that doesn't mean that they're not account. They shouldn't be held accountable for some of the stuff that's happened to those of us who have left the church or some decisions they've made. But I. I just don't think they operate that way. Is that fair of me to say?

John Dehlin [00:25:47] And I just don't think ex Mormons do the cause anything positive. By spreading conspiracy theories. Yep. Or, you know, theories without evidence just makes make sex Mormons look radical and extreme and hateful. Again. No. No offense, Mark. Just thought I'd address it. Okay. Sorry. I just. I like to incorporate comments since we have the live. Live audience.

Kolby Reddish [00:26:12] No, I love it. I was actually just sitting here thinking, now that we've ticked over into February. John, it's three years ago that Cami and I first appeared on Mormon Stories this month, which is kind of what a change in three years.

John Dehlin [00:26:24] We'll have. We'll have Julia put the link to your episode in the show notes so that people can watch that. It's a really important episode.

Kolby Reddish [00:26:31] Oh, thank you. Let's look at Hinckley's statement just to remind people about, you know, this statement that Hinkley made in 2003. So he made this in general conference, the April conference, I think, if I remember correctly, and this is the statement. And the reason I want to look at this again is because the entire case will turn upon the interpretation of this statement. Literally, there were five other statements, or, I'm sorry, four other statements. And we went through those back in September. We're not going to go through all of them again. Because this court only addresses this one statement and says that all those other statements, some of which were as made.

Kolby Reddish [00:27:06] Made as late as 2012. So I kind of chuckle at that. But the court is not going to address any of those and says that they all have to be understood in light of this particular statement. And this statement is ultimately going to be turn on the interpretation of that phrase that I have underlined. There invested reserve funds. Gerardo, do you want to read this statement from that 2003 talk?

Gerardo Sumano [00:27:29] Yeah. So it says, includes April 2003 statement. We feel we have compelling responsibility to protect the environment of the Salt Lake Temple. The property needs very extensive and expensive renovation. We have felt it imperative to do something to revitalize this area. But I wish to give the entire church the assurance that tithing funds have not and will not be used to acquire this property, nor will they be used in developing it for commercial purposes. Funds for this have come and will come from those commercial entities owned by the church. These resources, together with the earnings of investment reserve funds, will accommodate this program.

Kolby Reddish [00:28:23] Yeah, and I highlighted a few things there. The first is that statement before, you know, President Hinckley talks about the use of tithing funds. He says, I wish to give the entire church the assurance. Now, I've highlighted that for an important reason that we'll come to in a few moments. I don't want to spoil that little reveal here. The other thing that I've highlighted is that last statement, because that's really the statement upon which the entire court's analysis is going to turn. But, Gerardo, you know, as you've been talking about this, you've talked about how difficult it is to believe that the court looked at all of this and feels that no reasonable juror could find that someone was misled by this statement. As you read it again, do you still have that feeling? And if so, can you kind of explain why?

Gerardo Sumano [00:29:12] Yeah. So I think this is the very first time that I see it written. Like, I really pay attention as it written down Because I've seen the video before, and in the video it's always giving me the impression that Hinckley is talking about invested reserve funds from the commercial entities.

Kolby Reddish [00:29:33] I agree with that entirely. I think that is a very fair read. And I want to note, since you're touching on it, the way that it's written out here, like where the, the, the paragraph break is, is the way the church printed it when it decided to print it. So I would say it deliberately, you know, whether it was an intent to defraud or not, it deliberately separated the statement about tithing from the invested reserve funds. And the invested reserve funds is only connected, you know, in the same paragraph with the, the reference to the church's commercial interests. So that's a very interesting note that you picked up on.

Gerardo Sumano [00:30:09] Yeah, I guess a question is, he said earnings of invested reserve funds. So that's kind of where we get into the question of like, well, was the 1 billion taken from the, the earnings or was it taking from the principal? You know, so I don't know, it gets, it gets complicated. But I, I think we've all, you know, a lot of people and a lot of our listeners and ourselves, we. Our conclusion is that, you know, the church was being deliberate in, in the way they, they said this to make it murky for the members. Because, you know, if you went back to 2010, 2005, and asked any member of the church whether the church used any kind to build them all, they would tell you no. So, so yeah, it was throughout the church. The, the, the understanding was that the church was using commercial entities to pay for this. Yeah.

Kolby Reddish [00:31:17] Do you have any thoughts looking at this statement again, John?

John Dehlin [00:31:22] I'm honestly, you know, I've been reading through my high school journal realizing that the cracks in my faith crisis started really early. And I'll be honest, I think when I would have seen the statement, I would have done the math and I would have known, personally, I would have known, I would have done the math in my brain that the church received no funds, the church possessed no funds that didn't have tithing as those funds origin. And so it is a misleading statement, but it didn't mislead me to, as an active, faithful member, because I'm just going to be honest, I did that math in my brain.

John Dehlin [00:32:01] Where else would the church have gotten money for business interests if not from tithing? So I would have just gone, oh, well, that's what he tells members to help them not worry. But we all know that beneficial life and ZCMI and all the different business interests over the years that, that originally the money to buy or develop those business interests came from tithing. But I also effectively lost my faith by the time I was at byu.

John Dehlin [00:32:34] So I don't think I'm the average member who would have been misled by the statement. Does that make sense? And I'm just trying to be all cards on the table honest with how I would have processed that at the time. Yeah.

Kolby Reddish [00:32:49] And I think, I mean, I was in high school in 2003, so it's not like I was paying the $5 million tithing that James Huntsman tried to reclaim. But I think, I think the context of this statement, and none of this has been offered to the court. Right. So I'm not, at least as far as I know, I read the briefing from both sides and I didn't see this referenced at all. But I think the context in which President Hinckley made this statement is important. And I can't like, point to any evidence aside from what I remember. And granted, you know, that was 22 years ago now, but I remember there were a lot of rumors even in my area, which is flooded with LDS people and super devout LDS people.

Kolby Reddish [00:33:30] I remember a lot of rumors floating around about City Creek and a lot of people, even people who are super devout. Like I remember an extended family member who's super, super devout, former bishop multiple times, who was really bothered about the church buying City Creek. And so I guess one of the reasons I highlighted that that statement that President Hinckley started with before he referenced the tithing funds, I wish to give the entire church the assurance is how he started that. I think that context is very important. And I suppose, and this will kind of be a theme throughout my comments on the majority opinion, I'm a little disappointed in these cases where there are, where the context of growing up inside the Mormon Church is really important to understanding the facts.

Kolby Reddish [00:34:18] And I think it's really hard, you know, no, no fault on James Huntsman's attorneys. They're excellent attorneys and did a really good job. I thought they did a great job at oral argument. But there's just no way, I think, to really adequately capture the experience you have growing up in the church and how some of this stuff works unless people have. Have really done it themselves. Is that fair to say, like that that context matters and I think that context, at least in the court's analysis, was entirely overlooked.

John Dehlin [00:34:48] Yeah, yeah, I agree, thousand percent. And I'll just add if I flip it and I don't if I don't look at it from my own lens because I, you know, I was paying attention when Hinckley went on Larry King Live and basically said we have nothing to do with polygamy. You know, we don't practice it. It's, it's, you know, not doctrinal. That's a full on lie. You know, I, I remember when he, you know, when he basically when we were confronted with the God Maker stuff around whether or not we believe that we could become God someday.

John Dehlin [00:35:20] And you know, he said something to the effect of, I don't know, that we teach it, I don't know, that we emphasize it. And then he goes back in general conference and like jokes with the membership that he knows what the doctrine is and the members don't need to worry. Like, I'm used to multi decades of deception of the membership, but I was a, I was a progressive Mormon by the time I was at byu. And so I just, so I, I personally just sort of shrugged it off as like politics. But, you know, if I flip it and ask like you just said, Kolby, if I were to look at this from the eyes of a, you know, of an average, faithful, believing member and from the perspective of the intent of this statement by President Hinckley and other statements like it, absolutely. These were statements intended to deceive the membership and they were effective at deceiving the membership.

Gerardo Sumano [00:36:27] Yeah.

John Dehlin [00:36:28] And, and only if you're really swimming in the soup of Mormonism can you really, really understand that. And, and that's why one of the reasons why Mormon stories and other podcasts exist is to help people understand the deeper context that, that they're going to miss as outsiders. Do you want to add anything, Gerardo?

The Hundred Billion Dollar Fund and Member Expectations

Gerardo Sumano [00:36:48] No, I, I think I'd agree. Yeah. I think in the perfect world there would have been a survey, you know, where members could say about where they think the money came from for City Creek and would be interested, especially before 2020 or 2019, before the news the 100 billion dollar fund came out. It would have been interesting to, to see the results for that. But.

John Dehlin [00:37:15] Yeah, yeah, and it's hard to, you know, because I know a ton of people left the church after City Creek and it's just hard to know how much of that was just because it's Jesus's one true church allegedly investing in a consumer shopping mall versus feeling misled and deceived about how the funds were used. But it's, it's a, it's a combination of both. You know what I mean? Yeah, it's hard to tease those out.

Gerardo Sumano [00:37:42] But one of the biggest revelations though of the, of the IRS complaint in on the 100 billion dollar funds fund was that the church indeed used tithing money to you to pay for City Creek. So that was kind of like the part of the big story.

Kolby Reddish [00:38:02] So.

Gerardo Sumano [00:38:02] And, and part of the complaint as well. So, so, yeah, I, I don't know. It seemed to be like a big revelation then that most people didn't really even understood when City Creek was being built or.

Kolby Reddish [00:38:18] Yeah, and I think, I think that's such a good point, Gerardo, because the, the knowledge of these things, you know, back to Johns or opening comments about people's disappointment and kind of my thoughts on that. So much of this knowledge has been gained only in the last several years. Right. Wasn't, wasn't the whistleblower report leaked in late 2019, if I remember correctly?

Gerardo Sumano [00:38:41] Yeah.

Kolby Reddish [00:38:42] So really we've only known some of this stuff generally as a, as a, as a populace for six years. Not even six years.

Gerardo Sumano [00:38:50] I mean, and I don't think anybody or even the average member would have envisioned how much money the church had or that there was even like a billion or much like, even worse, like hundreds of billions of dollars in investment funds. I don't think if you would have asked an average member again about it, about how much they do they estimate the church has a reserve funds. I don't think a lot of people would have said billions of dollars. So, so yeah, I, I don't know. It's, it's, it's, it's kind of like, like you said, Kolby, putting it in, in context of what the intention was with this statement and why it came out is it was important and it was not considered in the decision.

Kolby Reddish [00:39:40] Yeah. So let's talk about the decisions. So the panel, there are actually three written decisions. I think the total length, page length of the decision is about 65 pages. Really. The majority opinion is very short, but we are going to go through that in the most depth. There was then a concurring opinion written by Judge Bress that four judges joined, and then a concurring opinion, a lone concurring opinion written by Judge Bumete, I think is how you say it.

Concurrence, Majority, and Dissent Explained

Gerardo Sumano [00:40:08] Can you explain what that means? Concurring versus majority versus dissent?

John Dehlin [00:40:13] Yeah.

Kolby Reddish [00:40:13] No, great question. So a majority. So anytime we have an appellate court, they're typically going to be made up of more than one individual. It's not one individual judge like it is in the trial court. And so the way it works is when they're rendering an opinion, the majority of judges that sign on to one theory of how to resolve the case, that will then become the majority opinion. So any opinion that's separate from that, that agrees with the result is what's going to be termed a concurring opinion. So it's concurring, saying, I agree with, but I'm going to get there using maybe slightly different reasoning or I want to emphasize some point of the case a little bit more.

Kolby Reddish [00:40:49] And so what this means is that it was a unilateral decision or a univocal decision by all the judges in favor of the, of the church. So all 11 judges agreed with the church that the church prevails. Those two concurring opinions just use a slightly different route to get there. They basically are both going to talk more about the First Amendment and how the First Amendment would barely the claim under the church autonomy doctrine, while the majority opinion that was written by Judge Friedland found that no reasonable juror would agree with Huntsman's characterization of the facts to support his claim of fraud. And I guess to go off the comment that we responded to a little bit ago just to highlight that, yes, I agree with John that judges are still people, and yes, there are political ramifications to some of these decisions.

Kolby Reddish [00:41:33] I also am not ready to fully say that. That's all. Our court makes decisions based. Our courts make decisions based off. So I wanted to highlight that Judge Friedland, who rendered the decision, was appointed by President Obama, so would typically fall probably on the opposite side of the political spectrum that people might assume, having written the majority opinion. And she clerked for Justice Sandra Day o', Connor, who was also kind of an interesting ideologue in her time before she passed. So I just.

Gerardo Sumano [00:42:03] Right.

Kolby Reddish [00:42:03] I just wanted to highlight that, to say that it's not necessarily as simple as, you know, we view typical partisan politics. I still have the most faith in our court system.

Gerardo Sumano [00:42:12] Yeah, I, I do want to say, because I, I do think it's important you bring this up, Kolby. So can you put that slide back up? So essentially, just to illust, try to explain it and illustrate it. So you have 11 judges, all of them decide we have to end the case, but the reasoning is different. And you have, you have the majority of the six, you know, six out of 11.

Gerardo Sumano [00:42:39] And that's why it's called the majority. And they all agree there's one reason to end the case. And basically what they say is, you know, we don't even have to look at the First Amendment. We, we think this could be looked in, just in, in the fraud lens. And we believe there's no reason that this would be a fraud case, basically. Right. And then, and then you have the concurring opinion of the other five judges who say we shouldn't even be looking at the fraud claims. We should be only. Or analyzing this case mostly, if not only based on the First Amendment religious protections. So they all decide to end the.

Gerardo Sumano [00:43:22] What's interesting is that the six judges that decided that. That the religious question was not a thing in the case, or they shouldn't even. They shouldn't consider the religious question were all appointed by President Obama and Joe Biden. And the ones that, that say, no, we should be looking at the religious question in this case. And one of them say, like, we don't even need. We shouldn't even be looking at the fraud question because churches can do whatever they want. You know, I'm obviously paraphrasing this, but these were appointed by early Trump and Bush and Bush. So, so it, it does have a little bit of like, of, you know, of impact, whether these are conservative or versus versus more liberal judges. You know, a conservative judge is going to look at more like, is going to, for example, give more preference to the First Amendment.

Kolby Reddish [00:44:24] Yeah. Typically, especially recently, more conservative judges are going to take a really hard originalist approach on what the Constitution means, including the First Amendment. And we'll touch on that a little bit when we talk about Judge Bhumate's concurring opinion, because that's basically what he does is he takes. He takes this test that the Supreme Court of the United States has used in recent years to overturn past precedent called the ordered liberty test, where they basically look and say that the only thing the Constitution means is what the people who wrote it thought it meant. And so they really go back to history and look at history to, you know, inform what they think the Constitution means.

Kolby Reddish [00:45:05] It's one approach. One of the things I think is really interesting in, like, legal academia circles is that is just one approach. Approach to resolving constitutional questions. It's the one that's, you know, most often espoused by conservative judges or justices, but it's not the only way. And we'll talk about that a little bit more as we go on.

Gerardo Sumano [00:45:26] Yeah. And just to give people a little bit of context, that kind of thinking about, like, should only be looking at what the people that wrote the law meant when they wrote it. Something that, for example, a lot for. Allowed for Jim Crow loss, you know, the first segregation. Because as a Conservative support was like, well, when the 14th Amendment was written that it didn't. I mean, I'm obviously kind of simplifying this a lot, but they're. We're kind of like, it didn't. They were not thinking about station. So segregation is fine. They were thinking about slavery. And then later, another Supreme Court, maybe a more liberal Supreme Court was like, no, segregation should be. Should be out loud. Even if that was not on the mind of the people that wrote the 14th amendment, just so people illustrate it a little bit, but I know.

Kolby Reddish [00:46:19] Yeah, yeah. And that's okay. I think you're oversimplifying it accurately, though. You're. You're just summing it up. I think what I'd say in conjunction with that, just to help people wrap their minds around this, is when I say originalism, what I mean is those judges are not looking necessarily at just like the text of the Constitution and then saying, how would people like us in today's day and age understand what equal protection of the laws mean? What they do is they go back and say, well, this amendment to the Constitution was written in the 1800s. And so they look at what the people in the 1800s would have thought that those words meant, and they privilege that above what people today would think those words mean.

Kolby Reddish [00:47:01] So textualism is another strain of judicial interpretation, and it's going to look primarily at the words. And then there are looser interpretations of what the Constitution means, where they're looking more at the principles. Right. Those are where we have decisions like Roe versus Wade, things that protect your right to have gay marriage, birth control, gay marriage. All of those fall in a. A line of cases that are called substantive due process cases where they basically through. Through judicial interpretation, basically added to our understanding of what due process of law means. And so originalism, at least originalism as it is now, is basically rolling back some of those rights that judges have found and interpreted into the Constitution over time.

Kolby Reddish [00:47:49] So I'm not necessarily taking a position on that. I'm happy to have that discussion, too. I'm just talking about this more from like, a practitioner and academic point of view, is that is just the way it is. Like, originalism is privileging the intent of the people who wrote the Constitution or wrote the amendment in question above the way people would understand those same words today. Yeah.

John Dehlin [00:48:15] All right. Anything else about the decisions?

Kolby Reddish [00:48:18] No. Well, let's go ahead and go through them. So if you'll go to the next slide, we can look at the definition of fraud. So people have. Have asked you know, how do we understand the claims that Huntsman made? And what exactly does fraud mean? Well, the majority opinion gives us this definition because Huntsman's case, even though it's in federal court, it's a state law claim. This is the definition of fraud under California law. The first is that there's a misrepresentation, which means that you made some false statement of fact.

Kolby Reddish [00:48:48] The B is the knowledge of falsity or scienter, which just means the intent. So earlier, John, you were talking about, you know, your opinion on President Hinckley's intent to deceive. That's one of the things that ultimately, if the case had proceeded to jury would have had to have been proved. And there may be, you know, maybe something there in discovery that we'll never know because the case isn't moving forward. That might have been interesting to find. Like, I would have loved to know, for example, how many people reviewed that 2003 statement and what feedback was given on that 2003 statement before it was made to the church.

Kolby Reddish [00:49:22] Because this is again, where the, you know, the understanding and the context is very important. You all three of us know that that statement was not made without being reviewed by legal and by being reviewed by the church's internal PR folks and probably also the church auditing department, because it did have to deal with such a sensitive issue. And probably apostles and probably other apostles, of course, which would include quite a few attorneys and businessmen who would understand a little bit more about what he's talking about.

Gerardo Sumano [00:49:52] Well, though, is that it wasn't one of the revelations that only the first MC and only very few people knew about the investment fund. So even like people like Boy K. Packer wouldn't have known exactly where the money was coming from for City Creek.

Kolby Reddish [00:50:08] Yeah, that's exactly right. I think it was Roger Clark told the story about having to basically tell Elder Packer that he couldn't tell him anything about Enzyme Peak, even though Elder Packer was the acting president of the corner of the 12. I think the mental image of someone like shutting a door on Boyd K. Packer is just absolutely hilarious to me because I. I can't imagine that set very well with him. I think Elder Oaks described him once as. What. What was the quote he gave to Steve Benson about Elder Packer? John Stagement, you can't stage manage a grizzly bear.

John Dehlin [00:50:40] Yep, that's the quote. Yeah.

Kolby Reddish [00:50:43] So going back to fraud, the third requirement is that we have that intent to induce reliance. So in other words, the intent, the intent element doesn't just include that the person knows that it's false or they're making it with reckless disregard for whether the statement is true or false. They also are intending for people to act on what they're saying.

Kolby Reddish [00:51:02] And I think that actually does play a little bit into the majorities of John here in just a minute. The fourth requirement is that the plaintiff, so James Huntsman here justifiably relied on the statement. So it's not enough that someone just makes a statement to you that you should know better than. Basically, this is how, this is how businesses are allowed to make claims like we have the best cup of coffee, we have the best pizza in the universe. Is those aren't reasonable to rely on. And then the fifth requirement is just damage that the reliance on that representation that was false caused damage.

John Dehlin [00:51:40] Yeah, I'm going to give my honest man on the street analysis. Having not really paid attention to this before, it's my opinion that ABC and E are met and D is not. And what I mean by that is it's my belief that Mormons are so indoctrinated in the truthfulness of the Mormon Church and in exact obedience that most of them wouldn't care what PR statement Hinckley made at one point or another. They would pay their tithing if the church said the tithing was stolen. Like Mormons are so conditioned to be exactly obedient. I, I, I think he could have said much more outrageous and egregious things and, and Mormons would blindly pay their tithing. I, I hope that doesn't sound offensive, but that's, that's my opinion.

Kolby Reddish [00:52:37] No, I actually agree with you. I think from the start that justifiable reliance piece was the hardest element. I thought that James Huntsman was going to have to prove, and I would actually go a slightly different route with it and just say that in the Mormon, you know, in the Mormon community, in the Mormon canon, you are commanded to pay tithing regardless of what the church uses the, the money for. I'm not saying that's right or wrong. I'm just saying that is the teaching. And so from my perspective, regardless of what assurances President Hinckley wanted to give the members of the church, they were still under this commandment, they believed to pay tithing.

Kolby Reddish [00:53:14] And I thought, I always thought that the, the case would resolve much more along First Amendment grounds and actually would have a lot less problems with the case resolving on First Amendment grounds, because then at least we know, then at least we know that the Church is subject to special rules here. The way the majority resolves the dispute, they don't even apply the special rules that apply to religion, to the church, and just say that the church didn't do anything wrong. That's probably my biggest gripe with the majority opinion. Do you have any thoughts on these requirements, Gerardo, before we move into looking at the opinion?

John Dehlin [00:53:47] Gerardo, his computer's having a glitch, the scm. So while. While we're waiting for him to come back in, I'll just say again, I don't want to sound like I'm. I, I'm against this case prevailing or I, you know, don't think it had merit. I think. I think I just want to make the point that I think I, you know, I'll just bring up a couple books. Combating Cult Mind Control by Stephen Hasson.

John Dehlin [00:54:14] Recovering Agency by Luna Lindsay. Or. Religions can have so much power, so much influence over people that, you know, that they're willing to. To do extreme things. And I don't think that's. That speaks well for the church. You know, when I say that the members will blindly pay no matter what, I don't want to. I don't want to say that that lets the church off in accountability. Gerardo, Kolby was wanting to know if you had any additional thoughts on. On whether the church meets criteria for fraud, including. We've. We've been talking about justifiable reliance, whether or not the members paid their tithing based on Hinckley's statement.

Gerardo Sumano [00:55:04] Yeah, if. Can you hear me?

John Dehlin [00:55:07] Yeah.

Gerardo Sumano [00:55:08] Okay. I just want to. Oh, yeah. I feel like. Yeah, for. People were paying their time because they. They thought that was using their money.

John Dehlin [00:55:18] But they've said that your audio is coming in. Your audio is coming in choppy. It may be Internet on your end or you may need to reboot. I'm. I'm sorry.

Gerardo Sumano [00:55:27] Okay, I'll come back.

John Dehlin [00:55:29] Okay. We'll have you back on in just a sec. All right, Kolby. Sorry about that. Anything else you want to respond to on that, or did we cover it?

Kolby Reddish [00:55:38] No, I. I think this is one of the reasons. Again, back to September, I said, this is probably the best chance any of these cases have because James Huntsman tried to present it purely as a non first amendment case. He tried to really rely on those statements. But I think we all knew and we talked about this back in September. Even if James prevailed at this point, all that means is that he got the chance to offer his case to a jury. It didn't mean that the church would have been adjudicated to have acted fraudulently, just that someone could find that. And so I think we all knew that this case was always an uphill battle.

Kolby Reddish [00:56:14] And again, I'm not saying, you know, like you said, that I wanted this case to fail, but I think we knew that it was a little bit of a long shot. And when we look at the elements of fraud, I think we can see that really quickly.

John Dehlin [00:56:30] So just to, just to kind of backtrack or at least analyze my own scrutiny, I absolutely believe that there would be some members who would, who would pay their tithing or continue to pay their tithing based on Hinkley's statement. So I guess, I guess to argue with myself, it wouldn't need to be a majority of members who would be impacted or persuaded by Hinckley's statement. What do you think, Kolby? If, if, if it were just hundreds or even a few thousand members that felt reassured enough by Hinckley's statement to, to pay, would that be adequate to, to meet criteria for fraud?

Kolby Reddish [00:57:12] I mean, it's definitely getting closer. When we get to the end of the majority opinion, they apply the rule that they, that they, you know, interpret the case under to James Huntsman directly. And I was going to touch on that then to basically, okay, here's how we could distinguish this case in the future. But I think realistically, with a decision of this type, and especially when we talk about the, the middle concurrence that had the four judges signing on, I just don't know how likely any of these cases are to move forward. I'm not trying to be a downer, but realistically, it'll be an even harder uphill battle than James Huntsman had because this case now exists to basically address this issue.

Kolby Reddish [00:57:51] But you're, but you're right. I mean, and that's where I kind of put myself in, in, in that, that frame of mind back then when I heard President Hinckley make that talk. Because I remember this, because I remember people gossiping and, and people complaining about City Creek back around that time frame, if I look at it, and I put myself honestly in the shoes of did I feel like I was defrauded. Looking at those elements, I would have to say, no, I, I wasn't, because I wasn't paying tithing through the rest of my life until I stopped based on those assurances from President Hinckley. I was paying it ultimately because I felt it was a commandment.

Kolby Reddish [00:58:28] And I think many members are going to be in that boat. And the reality is that doesn't amount to fraud. That doesn't mean that we can't still talk about it and that it can't still be problematic behavior. Again, one of the victories I think we can draw out of this case, even in failure, is that we have increased the church's transparency. We've increased the knowledge of the way that these things work and what the rules are so that people going forward can have better informed consent.

John Dehlin [00:58:57] Let's see if your audio is better.

Gerardo Sumano [00:58:58] Yeah, I think I'll just say that I think there's also another win.

Kolby Reddish [00:59:05] And.

Gerardo Sumano [00:59:06] And. And I just want to bring up a comment by Rebecca. She says, basically, there seems to be no such thing as fraud if you're at our a church. And I think one of the wins is that that was not the majority opinion.

Kolby Reddish [00:59:22] Correct.

Gerardo Sumano [00:59:24] You know, so the majority did not agree that churches cannot commit fraud. So I. I think that was a win.

Kolby Reddish [00:59:35] See, that's interesting. I actually. Well, we'll get to it when we talk about the concurring opinion. I agree with you that that's something that comes out of this case, but I actually would have much preferred them just saying that religions can do whatever they want, that they can't be liable for fraud, because at least then we know the rule. Right. Instead, we kind of have this weird area where we're not sure. Apparently they can sometimes maybe be subject to fraud. That question's left unanswered.

Gerardo Sumano [00:59:59] Yeah.

Walking Through the Majority Decision

Kolby Reddish [01:00:00] So let's start going through the majority decision. So I've. All of these quotes that we're going to go through are quotes directly from the majority decision. So the court rehashes kind of the procedure, how we got there. They rehashed the requirements of fraud that we just looked at. And the court ultimately says this. John or Gerardo. Do you want to read that?

John Dehlin [01:00:20] I'll read it. Majority decision. Although the church stated that no tithing funds would be used to fund City Creek, it also clarified that earnings on invested reserve funds would be used. The church had long explained that the sources of the reserve funds include tithing funds. Huntsman has not presented evidence that the church did anything other than what it said it would do.

Kolby Reddish [01:00:48] Yeah, and specifically, what the court is looking at is that 2003 statement of President Hinckley to basically say they didn't act inconsistent with this statement at all. So if you'll turn to the next slide, this is how the majority decision captures that statement. I'll go ahead and read this one. They say in his 2003 announcement of the City Creek project, Hinckley stated. And there's A bracket there that to capitalize tithing. It says tithing funds have not and will not be used to acquire this property, nor will they be used in developing it for commercial purposes. Funds for this have come and will come from the commercial entities owned by the church.

Kolby Reddish [01:01:25] These resources, together with the earnings of invested reserve funds will accommodate this program. And so the reason that I'm calling out the bracket there and the capitalization is that's how courts signal that they're modifying the sentence. Right. It's like the flip side of an ellipse where we're leaving stuff out, out. This is telling you that there's stuff left off of that sentence before that word tithing. So if you'll go to the next, the next slide, John, here.

Kolby Reddish [01:01:53] Yep, that one right there. Here's what is left off of that first sentence. But I wish to give the entire church the assurance that. And then tithing funds have not and will not be used to acquire this property. The only reason I draw attention to this is because this entire case turns upon the interpretation of this phrase. It turns upon intent in making that. And I find it very interesting and slightly troubling if I'm honest, that that part of the sentence was omitted because I think if anything, where we're at the stage where Huntsman is due every favorable inference of fact in his favor. I feel like omitting the first half of that sentence actually does change the meaning quite a bit.

Kolby Reddish [01:02:39] And the majority opinion, the way they recapitulate it, I just don't think carries the same weight and the same intent of Hinckley saying, I'm making this statement and I'm telling you why. It's to give the entire church assurances.

Kolby Reddish [01:02:53] And I, I don't know. I just want to highlight this and say I, that's what was left off in the beginning of that statement. Do you guys have any thoughts on that?

Gerardo Sumano [01:03:04] Well, nothing other than why would you give the church the assurance that no tithing was being used if later you were going to tell them that tithing was being used?

John Dehlin [01:03:15] Yeah. Clearly the whole reason he made the statement was because he wanted, he, he, he, he knew that there was going to be a concern that tithing would be used for these types of projects.

Kolby Reddish [01:03:30] Exactly.

John Dehlin [01:03:31] And he wanted to craft words and then use his mantle to offer reassurance that what members might fear would happen won't be happening. And the words were literally assembled in a way to put members minds at ease that what actually was happening wasn't happening. I mean, why else would he make the statement.

Kolby Reddish [01:03:53] Yeah. And people are going to say that you're reading too much into his intent. But look at what was cut out of that sentence. I wish to give the entire church assurance that, like we're not reading President Hinckley's intent. He tells you what his intent is. I'm making this statement to assure you about how we use tithing funds. So I just have to highlight that the leaving off of that by the majority, I think does.

Kolby Reddish [01:04:20] It does appreciably, in my mind, change the meaning? And I only say that because if it didn't. If it didn't appreciably change the meaning, why did they omit it? That is a very interesting question to me. If it's. If it doesn't go to what we're talking about, Hinckley's intent and potential intent to deceive. Again, we're just talking about. Could any reasonable juror look at that and say that line indicated intent to deceive?

Kolby Reddish [01:04:46] If it didn't, why is it left off? If it's just a nothing burger, why is it left off? It's. It's irregular to quote only part of a sentence.

John Dehlin [01:04:57] Yeah. When. When Hinckley says, I give you the insurance that tithing funds have not and will not be used to acquire this property. It's almost like Obi Wan Kenobi or whoever saying, these are not the droids you're looking for. Even though he knows it's exactly the droids they're looking for. You know, but he knows that tithing funds were the origin of the funds used to acquire City Creek. But he's saying that it's not. What other purpose is there than to just sort of say the reality is a reality? It feels like a form of gaslighting to me. Right. Because he knows the origin of the funds. The church doesn't really get money elsewhere than from tithing.

Gerardo Sumano [01:05:47] Well, it does. It has.

John Dehlin [01:05:50] I don't mean that in the literal sense. I mean it in the practical sense.

Gerardo Sumano [01:05:54] Yeah.

John Dehlin [01:05:55] The overwhelming majority of the money the church gets is from either tithing or earnings on assets largely purchased with tithing. Am I wrong?

Kolby Reddish [01:06:06] No, I think you're absolutely right. Like even the commercial entities. Because that's what Gerardo's saying. Right. Is there. Is that commercial income, them? But what you're highlighting is ultimately the church, the church's funds from the very beginning, the seed money that created the whole institution, this whole almost trillion dollar church in the next 50 years. It all started with tithing money. That's what you're saying, right, John?

John Dehlin [01:06:28] Absolutely. And Hinckley knows this. And so he's basically saying, I know that at the end of the day, pretty much all this money either is tithing or comes from tithing. But I'm going to offer the church worldwide assurance that tithing has nothing to do with this acquisition. And that's, to me, the honest, non deceptive thing to do would say these funds come either from tithing or from tithing that then got invested in businesses where earnings came. But ultimately it all comes from tithing, and we stand behind this purchase because we think it's good for the church. That would have been the honest thing to say, I think.

Kolby Reddish [01:07:07] Yeah. And I think. I think going back to a theme that you talk about a lot, which I really believe in as well, informed consent. If we look at what Hinckley actually said, right, when he says these resources, together with the earnings of invested reserve funds, will accommodate this program, the more honest way, the way the majority says that this statement should have been read is that any reasonable person would understand that earnings of invested reserve funds means earnings of invested tithing reserve funds or reserve tithing funds. And I just don't see how that's the only reasonable way to read this sentence. I'm not questioning the majority's decision because they get to make the decision.

Kolby Reddish [01:07:45] That's how our systems work. Right. I think it's really regrettable that we're in a state right now where we only agree with our civic institutions generally when they agree with our partisan beliefs. So I'm not doing that. I'm just saying the question the court is supposed to answer is, could any reasonable person reach a different conclusion based on this? And I think the juxtaposition of that statement, following right after discussion of the church's commercial entities, I really do think that even if Huntsman may not have ultimately prevailed, I think the case deserved to go to a jury if the appropriate context had been offered to the court.

Kolby Reddish [01:08:23] I struggle to see how they could have reached that if. If the context had been explained adequately. And we'll touch on that here a little bit more in a second.

John Dehlin [01:08:32] Really quickly, let me just thank. Let me thank Susie Catherine for the donation. She writes our tithes to you. We just want to remind everyone that. That what we do on Mormon stories is because of our donors. And so as we're speaking about money, we are transparent in our finances. We publish our 990s every, every year so that you can know generally where the money goes, how it's used, and Just. Just a thanks to Susie, Catherine, and all our monthly donors and our super chat donors for helping us, you know, put on a show like this that at least provides some analysis and transparency for the Mormon Church. Okay, keep going. Cody Kolby.

Kolby Reddish [01:09:16] Yeah, so if you'll go to the next slide, it will break down how the majority views that statement. It says that statement thus drew a distinction between principal tithing funds coming directly from church members and earnings on the funds that the Church set aside from its annual income, which includes tithing funds. So what they're saying there is basically what I just said the. The way to understand that second sentence. These resources, together with the earnings of invested reserve funds, made clear that that included tithing funds. Again, that's. That's setting aside the fact that President Hinckley said very generally no tithing funds can or have been or will be used for this project. I think that's where kind of that double mindedness of the statement, I think, is a little bit problematic. And I think you talked about that as well. John, any thoughts on this approach the majority takes?

John Dehlin [01:10:10] Berardo?

Gerardo Sumano [01:10:14] No, no, I think I would just agree with you that. I mean, again, I think we're beating it. That is that, like, if you look at the context surrounding the statement, it is clear what Hinckley's intent was.

Kolby Reddish [01:10:32] Yeah. So let's go to the next slide, and there's a little bit more in depth on this. And I think this is very interesting because when they're talking about how they get there, this is what they say. Gerardo, do you want to read this slide for us?

Gerardo Sumano [01:10:47] Yeah. The Church had also long publicly indicated that reserves funds come at least in part from tithing funds. In a 1991 statement, Hinckley suggested that tithing comprises the bulk of the Church's annual income and budget. In that same statement, Hinckley said that a fixed percentage of the Church's income will be set aside to build reserves against what might be called a possible rainy day.

Kolby Reddish [01:11:19] Okay, I want to pause you there for a second. So one of the things that's so interesting to me is when we watched this back in September, if you remember, one of the things I said is the Church's ultimate argument is that when. When hinckley says in 2003 that invested reserve funds will be used, you need to understand that statement in the context of these two statements. These are the two statements the Church has pointed to all along this case. One was made in 1991, so that's 12 years before. And the other was made in 1995. That's five years before or I'm sorry,

Gerardo Sumano [01:11:52] which is the inception of Ensign Peak. Right. This is when they were about to create it.

Kolby Reddish [01:11:57] Enzyme Peak was created in 1997.

Gerardo Sumano [01:11:59] So yeah, yeah.

Kolby Reddish [01:12:00] Really close. Contemporaneous. The thing that's very interesting to me, one of the reasons I underlined that statement is the court is looking at the statement from Hinckley in 1991. And even in that statement he says, you know, a fixed percentage of our income will be set aside to build reserves against what might be called a possible rainy day. I noticed that President Hinckley didn't say against the potential acquisition and construction of a billions of dollar shopping mall.

Kolby Reddish [01:12:29] So I guess that's one of the things about this opinion also that, that I struggle to understand is it doesn't really deal with the flip side of a lot of these arguments or the flip side of how you could read these statements against the church. And at, at the stage, at this stage, again, legally, Huntsman is entitled to every favorable inference of fact to allow him to present his case ultimately to a jury. I think that's interesting.

Gerardo Sumano [01:12:57] Church's income. Church's income can mean income from the commercial entities like Desert Book and this. There's your news, which have existed for decades and decades and decades. You know, so.

Kolby Reddish [01:13:11] Right.

Gerardo Sumano [01:13:13] It's interesting that they would say, well, he clearly said here that the, that the church's income or the tithing was going to be set aside. He doesn't say typing. So that's another interesting thing. I, I think what you mentioned is really interesting. You know, like is, Is City Creek a rainy day? How is that not fraud as well? You know, we could use that, that phrase to also claim that it was fraud. What they did by taking the money out not for a rainy day, but to buy. To buy them all. Should I continue reading?

Kolby Reddish [01:13:52] Yeah, please.

Gerardo Sumano [01:13:53] In 1995, he repeated that message stating that each year we put into the reserves of the church a portion of our annual budget. Because Hinckley stated that tithing funds are critical to the church's annual income and budget, those statements necessarily implied that the reserves contained tithing funds. I guess they're answering my question right there. He doesn't say tithing, but the judges are going to put the word tithing in, in there.

Kolby Reddish [01:14:21] Yeah. And I always think it's interesting when we're talking about, you know, resolving a case based on implication. It's interesting to me that the majority's ultimate conclusion is no reasonable juror would read this any way than that there was a silent use of the word tithing in both of these statements. That isn't there. It's, it almost suggests to me, like, if you have to imply it, if you have to imply it, what would be the problem with just having required the church to have said it to holding them to what they say? That to me is the flip side of this coin that I wish the majority had addressed a little bit more. Do you have any thoughts on these statements, John?

John Dehlin [01:14:59] Only. Only that, you know, and again, this is like an, a lay person's just perspective. There's this, there's this notion associated with, with legal endeavors called a jury of your peers. And just the idea is there's context matters and only somebody who's really entrenched in the middle, you and the culture and the environment of a situation can, can really fully and fairly assess the situation.

John Dehlin [01:15:31] And I don't know if this is relevant or not, but the church can make within a Mormon context, as a Mormon, the, you know, we all know, for example, that you can find an Ensign article in 83 or in 71 where the church acknowledged that Joseph Smith used a stone in a hat to translate the Book of Mormon, or at least that some people claimed that, but that would not then, you know, discount the overwhelming majority of Mormons that would say, we were taught that Joseph translated the gold plates with the Urim and Thummim while the plates were in the room. And so you, you have to sort of swim in this milieu to really understand what, what deception might look like and how it might work out.

John Dehlin [01:16:24] And these just dorky little technical statements that Hinckley may have made at one point or another or mentioned at one time in passing or wrote it somewhere in a magazine do not account for what the overwhelming mass public perception of Mormons would be on matters like what tithing goes towards and how it's used. And that's why I just don't think any of these justices, other than maybe the one Mormon one who we think would be inclined to be very biased in favor of the Church, which is the only one I'm aware of, that one guy that, that, that is clearly Smith, orthodox believing Mormon, whose name Smith, by the way, like, in some sense these justices aren't even capable, and this is a point made earlier in this podcast, they're not capable of understanding, you know, what, what deception or, or mis. Misleading statements might mean in a, in a modern Mormon context.

Kolby Reddish [01:17:32] I love everything you just said, John, particularly because you hadn't seen the slides yet and we're going to go to such an interesting.

John Dehlin [01:17:38] I'm sorry.

Kolby Reddish [01:17:39] No, no, no, no, no, no. This is fantastic. What you said just dovetails so well with what I'm about to present. But I have to read something out because I scripted this so that I'm. Because when attorneys are criticizing judges, and especially a panel of judges, we have to be very careful about what we say. Okay? So I scripted this out and I want to. I want to hit this.

Key Facts the Judges Did Not Consider

Kolby Reddish [01:18:00] I'm going to talk about some facts here in just a second. And what I'm going to say before I do that is I am not saying that the judges ignored these facts. Okay. I don't want to be misunderstood because I'm not questioning the court's authority or the court's decision even really. What I'm saying is that judges can only decide the case as it's presented to them. And a few times as we've talked about this context, where I'm viewing it as, you know, the role of attorneys in offering the case was to offer this context in the most digestible and easily understood way to these judges.

Kolby Reddish [01:18:32] And I just don't know that that happened again. Huntsman had excellent attorneys and Huntsman is an awesome person, very brave to take this on himself. So I'm not defaulting anyone. I'm just saying that judges can only decide the cases that's presented to them. And I think in the future, if attorneys are looking at suing the church, they really need to think about doing a lot of consulting with people who've been in this world and lived in the both camps of attorneys and Mormonism who understand how it can hook in to how the law can hook into Mormonism. Because I just think it's something that unless you've lived and breathed it, I don't think you'll ever understand.

Kolby Reddish [01:19:10] So I know that the facts we're about to talk about were not presented to the judges. And I just want to talk about them really quickly. So you were talking about how the church will often, an apologist will often point to these little one off statements that are made to justify its behavior. So let's talk about the reasonableness behind this assumption that the court does, which is when Hinckley makes this statement in 2003, you only could have understood it in the context of the statement he made in 1991. In 1995, as I already highlighted, that's 12 years and eight years different. If you'll go to the next slide, John, along with what you were saying about talking about you Know, these one off enzyme articles or these one off friend articles that the church will often point to.

Kolby Reddish [01:19:51] I know that's a little hard to read, but what it is is I went to the church's website and looked at the General Conference talks that are given by speaker. They do a great job of making it really easy to find stuff like this. To their credit, what I did was I snipped a photo of the talks that hinckley gave in 2003 and 2002. I didn't do this all the way back to 1991. I just wanted to highlight that people can do this themselves if they want to count. And so what I did is I went and counted the number of times between the two talks.

Kolby Reddish [01:20:24] The talk in 2003 that we're talking about where Hinckley made that statement about the use of tithing funds, and the talk in 1991 where the court says, you can have only understood this 2003 statement in the context of the 1991 statement. Do you want to guess how many times elder or President Hinckley addressed the church from 1991 when he gave that talk to the talk in 2003? Just take a guess.

John Dehlin [01:20:50] I mean, if there's, let's just say 15ish here, and we're talking about, you know, 10 or more years. 150. I'm just guess. 150 times.

Kolby Reddish [01:21:03] It was 86 times only in General Conference. So I only looked at General Conference. And I excluded things like prayers or announcements.

John Dehlin [01:21:14] There's also BYU talks. There's. There's, you know, Christmas devotionals. There's firesides. But. But. Yes.

Kolby Reddish [01:21:21] Right. So let's just go with that 86 number. Okay, I did some math. So if we assume that each of his talks averaged about 15 minutes per talk, they're actually closer to 20 when I looked at the. The ones. But let's assume an average of 15 minutes per talk, that is 22 hours of Gordon B. Hinckley talking between the two talks, that the court is saying it's reasonable to assume that when he made the statement In 2003, you had 22 hours worth of Gordon B. Hinckley content in your mind, basically conditioning what this later statement meant. Okay, if we convert that over just using, like, reasonable speech time, which for President Hinckley, he kind of talked a little slow, so maybe that's not accurate.

Kolby Reddish [01:22:07] But if we use reasonable speech time and then we convert that over to how long of a book would that make the equivalent of that talk? It's 647 pages. So if we're thinking of this like a contract, like the terms and conditions of a contract, when he made that 2003 statement you had, you needed to have a 647 page terms and conditions of exactly what he's talking about in mind. That's the only reasonable conclusion the majority says. And again, I know these facts weren't presented to them. I know this context wasn't presented to them. And that's where I wish it had been. Because I just don't think that that conclusion, conclusion, this is my honest opinion, is reasonable that you need to keep in mind that level of what someone has said in the past in mind when they're making a later statement.

Kolby Reddish [01:22:58] The other thing I'd add is exactly like you highlighted, John. That's just Hinckley's General Conference Talks comprises a 650 page that's longer than the Book of Mormon. Like that's longer than the Book of Mormon of just his talks. And that's before we talk about things like his ensign articles, his First Presidency messages, any special firesides, any special devotionals that he would have given any BYU talks. And I just don't think it's reasonable to assume that every reasonable juror would consider this assumption behind the majority's opinion reasonable. Do you have any thoughts on this math, Iran?

John Dehlin [01:23:36] I mean, if I could just make it worse, Like, I don't think Hinckley was necessarily president for all of this time from the early 90s. Or was he?

Kolby Reddish [01:23:45] Because I think is when he took over.

John Dehlin [01:23:47] Okay. Because even if he wasn't, we're taught that all of the quorum of the 15 are prophet seers and revelators. So there would have been prophets before. After him, there would have been First Presidency members who are also giving the same number of talks. There would have been 12 apostles also giving similar numbers of talks. Plus, again, understand the context. Mormons are told to read their scriptures sometimes for an hour every day. They're told to write in their journals and to keep a garden. And they're sometimes serving in callings, five to 20 hours a week in their callings. Like, plus they're having careers and raising their kids. There's just no human way that most Mormons are going to be able to absorb these legalistic, intentionally designed legalistic statements, you know, to engineered to deceive the membership.

Gerardo Sumano [01:24:41] Yeah.

John Dehlin [01:24:43] And they punish anyone who asks, you know, critical questions or, or generates any reason to doubt or, or be suspicious. And they warn members from any external sources that aren't faithful so that's again, that's again why I bring up books like Recovering Agency or Combating Cult Mind Control. Not even that. I'm calling the Mormon Church a cult. But unless you understand the mentality, the high demand religion mentality of members of the church, these judges literally aren't suited to render this decision about deception and, and fraud, I don't think, especially if

Gerardo Sumano [01:25:21] they want to leave out the religious question. Right. Like, and just consider this as. What would people, reasonable people in a, in a just like a fraud context would have will look at this.

Kolby Reddish [01:25:36] You don't think it's reasonable, Gerardo, to keep in mind 650 pages, bare minimum of information when someone makes a statement like that to you?

Gerardo Sumano [01:25:44] Well, and then. No, of course not. And then, and then add to that that the statements didn't even say the word typing. So the judges had to add that in their opinion and insert the word tithing in there. Yeah, well, I'll say it's not the, it's not the, the judges, the judges are agreeing with the church because the ones that wanted the word tithing inserted in the 90s statements was the church, I think to make that argument in their, in their motion.

Kolby Reddish [01:26:15] Right, right. And I, and I guess that's one of the reasons I ran this math is, you know, interpreting those phrases is basically in the eye of the beholder. But the premise behind it of, is this idea is the premise of how these dominoes have been set up by the majority. Is that a reasonable assumption? I just don't think that's a reasonable assumption. I don't think any, I don't think, you know, if I, if I started a charity and I was soliciting funds and I made some statement, and then I made some second statement 12 years later, I don't think applied to any organization, it's reasonable to expect people to keep that quantity of information in their head at one time.

Kolby Reddish [01:26:54] You know, and that's just from one individual, just the speaker. So the, if we go back to the slides, the majority also talks about David Nielsen's affidavit and found that David Nielsen's affidavit also did not create any tribal issue of fact. Just as a reminder, Nielsen had submitted an affidavit, which is basically a sworn statement that Ensign Peak officials and church officials did not distinguish between tithing and invested reserve funds the way that the church is arguing in this case. So he was actually arguing as a practical matter, the church just commingles all of this and calls it all tithing. But the Court didn't find that created a triable issue of fact.

Kolby Reddish [01:27:36] They said even accepting the facts asserted in Nielsen's declaration as true as they're required to do by the. The procedural history of the case at this stage, they do not show that principal tithing funds were used for the City Creek project. Neither Nielsen's statement nor the Ensign Peak presentation slide distinguish between principal and earnings. So neither contradicts President Hinckley's statement that only earnings would be used. This again is that last sentence. There is an interesting distinction to me between informed consent, what we would hope the church would act, and fraud. Fraud is a very high bar to cross. Right. We talked about that when we looked at the requirements, and John and I kind of did our honest assessment assessment and said, I really don't think I would have a legitimate fraud case against the church based on these facts.

Kolby Reddish [01:28:26] This is another one where I think it's important people understand this, that the fact that those statements didn't contradict President Hinckley's statements doesn't mean that they were consistent with President Hinckley's distinction between tithing and invested reserve funds that the majority is reading. And that's because at this stage. Right. And the allegation being fraud, they have to show an actual contradiction, not just that the church could have done a better job in offering more informed consent to people. Any thoughts on that, John? Since informed consent is, I know, a big. A big cause of yours.

John Dehlin [01:29:01] No, I'm right there with you. I'll just bring in one comment from a viewer. Phil Clegg writes, the SEC found fraud.

Kolby Reddish [01:29:08] That's not.

John Dehlin [01:29:09] What if someone were to say, what's that?

Kolby Reddish [01:29:11] Well, first, that's not true. The SEC did not find fraud. The SEC has the ability to adjudicate fraud and did not find fraud. That ruling is a little bit more complicated than that, Phil. I understand it's been colloquially referred to as fraud, but it really wasn't fraud. And again, you know, I understand the intention behind this. I'm not trying to be harsh, but we need to be accurate when we talk about this stuff, because otherwise we get off on a wrong path. Right. If we say, oh, the SEC found fraud, how can that play into this? That's not what the SEC found. They did not find fraud.

John Dehlin [01:29:41] Okay. No, it's. I'm, I'm. I'm aligned with you on everything you're saying, especially around. Of course, one of the main goals of Mormon Stories podcast is just to help provide the informed consent that the Mormon Church clearly doesn't always want to provide. So.

Kolby Reddish [01:30:01] Yeah. And. And frankly, now we know how this stuff overlays with the legal system. Right. We know that at least this court views it as reasonable, that if the court can point to any. Or if the church, I'm sorry, can point to any statement it's made as far as 12 years, apart from a second statement that somehow clarifies or adds meaning to it, apparently to this court, that is reasonable. And that's where any type of litigation, we gain a better understanding of how the rules work, even. Even times when we lose. And so we, we have gained that. That that's basically the way it operates. And.

John Dehlin [01:30:35] Yep, I think a lot of people are saying that what we learned from this is what we kind of already know, which is that religions in the United States pretty much have carte blanche. You know, I'm. I'm thinking about converting the Open Stories foundation to a religion, to a church. You know, what an amazing organizational structure that has all sorts of benefits to being organized that way. Right.

Kolby Reddish [01:31:07] Someone in our text exchanges may have said, john, you should definitely do that. There's basically no downside.

John Dehlin [01:31:12] Is there, Is there anything. Is there any organizational structure better in the United States than a church where. Where you don't have to report your finances publicly, you don't have to disclose, but you. You become sheltered from paying taxes, and you're allowed to skate up to the edge of fraud, if not fully commit fraud, and you're 100% protected. Who wouldn't want to be a part of that organizational structure?

Kolby Reddish [01:31:43] You've converted me, John. I'm in.

John Dehlin [01:31:48] I don't know why. We're not all churches, honestly.

Kolby Reddish [01:31:51] It's true, like you say that, but literally right down the house, right down the street from me, is just a normal residential house that someone incorporated as a church. It's like a Buddhist, Zen Buddhist meditation center, I think is what it says. And he. The person who does that, did it for the tax break and the tax benefits to basically get a special exemption on his. What is basically his home. So.

John Dehlin [01:32:18] And there's no, and there's no better evidence of this than the fact that the modern Mormon Church is worth over $250 billion in assets. And why. Why does it make sense when we're all concerned, let's just say, about the budget and, you know, whether we're running a deficit and the implications that has for fiscal responsibility in the short term and for our posterity in the long term, with inflation and, and with, you know, sound economic principles, why would we allow organizations worth hundreds of billions of dollars to not have to pay any reasonable taxes like it.

Gerardo Sumano [01:32:59] Well, yeah, yeah. And there's an added benefit to incorporating a religion. I was telling you, John, is like, you know, you, you draft the, your set of beliefs, which could include, you know, the LGBT marriage, etc, and then you, you put, you, all of you now have protected those things under the umbrella of religious protections, which is kind of interesting.

John Dehlin [01:33:27] I think the Church of Satan totally had it right. And you made this point in text earlier as well, Kolby, like everyone, this is the way that people who don't like what's going on should respond. We all should form churches around anything we value. And I, I don't, I don't see any other. I don't see any other recourse. We just all need to become churches.

Gerardo Sumano [01:33:51] Yeah, yeah.

Kolby Reddish [01:33:53] I mean, if those are the rules of the game. Right. That's one of the, the things we were just talking about, one of the values we get out of this case. If these are the rules of the game, the rules of the game should, in theory, go both ways. And so, yeah, I, I agree with everything you've just said. It seems like, it seems like almost a practical necessity at this point to just say whether, you know, like Gerardo said, to protect civil rights or to further some other cause and just do it without having to pay tax. It doesn't make any sense to operate at a competitive disadvantage in the market in the exchange of the marketplace of ideas any longer. So.

John Dehlin [01:34:29] All right, I found my new cause.

Kolby Reddish [01:34:34] You are going to give me a lot of trouble, though, when my family members tell me that John deland operates as a X Mormon prophet if. If you don't set your title accordingly. So please, John. Okay, back to the majority decision. I just wanted to highlight this one last two lines. John, do you want to read that for us?

John Dehlin [01:34:55] Yeah. Finally, the term quote earnings of invested reserve funds, close quote, was not so ambiguous that the Church could have expected or intended its relevant audience here, James Huntsman, to misunderstand what it meant.

Kolby Reddish [01:35:12] Now, you don't have to read that. You don't have to read that citation. I'm going to explain it. So in the legal field, there are these things known as restatements of law. What they do is it's basically like a, like an institute or legal scholars will come together and they will write, like a very simple statement of how state law questions have been answered by different states. And those are called the restatements. And we have them in all types of different fields. So this citation is to the Restatement of Torts that signal the CF means compare what we're saying with this Restatement. And that, parenthetical, is the quote that they're pulling from that Restatement of Torts.

Kolby Reddish [01:35:50] And I wanted to read that because in my mind, it seems like such a clear, obvious example where this is fulfilled. They say explaining that ambiguous statements are actionable if the speaker intends that they be understood in their false sense or is indifferent to the way in which the statement is taken. I think we've already kicked that horse until it's dead. But does anyone have any other thoughts on that statement as far as Hinckley's intent or what we know about Hinckley's intent or what it may have been if the case had proceeded to jury.

John Dehlin [01:36:23] Berardo?

Gerardo Sumano [01:36:24] No, I don't. I don't. I don't have any other thoughts.

Kolby Reddish [01:36:27] Okay, so it's interesting because I. I think there would have been interesting questions there and how vague the statement was or was it deliberately vague? But we know that the way the majority at least sets up these dominoes and knocks them over is that the only reasonable way to read it is in light of that 8 year before and 12 year before statement. If you'll go to the next slide, John, I'll read this last little one.

Gerardo Sumano [01:36:50] I'll just. I guess I do have something I just thought about. Discovery would. Could have potentially brought some of these things to light. Right. Like, yes, if they had, if discovery had been allowed, a lot of the context and minutes of meetings and, you know, who, who was in charge of reviewing this statement, a lot of that could have shed a lot of light into the real intent of. Of the statement.

Kolby Reddish [01:37:17] Yeah, unfortunately, we don't get that. We just get this line from the court that basically says the statement was not so ambiguous that the Church could have expected or intended its relevant audience to misunderstand what it meant. How exactly the court reaches that conclusion is interesting to me, because how they can guess at Hinckley's intent before discovery, I don't know. But, yeah, that's the way they go. And then on the next slide, they actually apply the rule of the case, basically, that they've decided two huntsmen, and they say, as explained above, the Church had publicly discussed on multiple earlier occasions its practice of maintaining reserve funds.

Kolby Reddish [01:37:58] So this is what I just said is they're saying that they can guess at Hinckley's intent, because the only way to understand that 2003 statement is in light of the 1991 or 1995 statements. It then continues. And the church would have expected Huntsman to be aware of its explanation that reserve funds, including tithing funds. So in case anyone accused me of, like a straw man or being ridiculous, when I say the church or the court is basically expecting Huntsmen to keep in mind that 604, 47 page terms and conditions. They literally. I mean, they don't say it that way, but that's what, that's the extent of what they just said in that sentence. The church would have expected Huntsman to be aware of its explanation that reserve funds included tithing funds, as we've already talked about.

Gerardo Sumano [01:38:41] Yeah.

Kolby Reddish [01:38:42] As applied to Huntsman. They say Huntsman came from a prominent family in the church and was himself a leader in the community who kept up with the church's affairs and official statements. John, you already kind of highlighted this, but the math I ran just dealt with Hinckley's statements during that same time frame. Not every statement on the church's affairs or official statements, I can't even imagine how many pages that would be well into the thousands, if not tens of thousands at that point during that same time frame. And then they say he also had extensive experience running and owning businesses, so was presumably familiar with investment concepts.

John Dehlin [01:39:17] I think that's a really dumb and outrageous statement to make. Oftentimes, the more powerful or influential or connected your family is to the church, the more busy you are, the, the, the more overwhelmed you are, and, and the more you're hustling just to meet up with all the demands. And it shouldn't matter the fact that they think they can speculate on what it's like to be a, quote, influential member of the church, and that if, if this was some other corporate executive who wasn't a Huntsman, that they would make potentially a different ruling. Isn't that kind of outrageous?

Kolby Reddish [01:40:02] Yeah. The other, I mean, the other real issue I have with this section of the opinion is these are like, how to determine how Huntsman received the statement. Those are factual questions. Those aren't legal questions. In a summary judgment motion and in an appellate court, they're supposed to be dealing with the legal questions. Huntsman is to be due every favorable inference of fact. And when they say Huntsman came from a prominent family in the church and was himself a leader in the community who kept up with the church's affairs and official statements, that, to me, feels like a determination that should have been made by the finer fact by a jury. But the court decided not to allow of that to go. Yeah,

Final Analysis of the Court's Ruling

John Dehlin [01:40:42] all Right.

Kolby Reddish [01:40:44] All right. I have one last little note here, which is this is how the majority addresses the First Amendment issue. They just say that the church autonomy doctrine has no bearing here. That doctrine protects First Amendment values by prohibiting courts from resolving controversies over religious doctrine and practice. Because nothing in our analysis of Huntsman's fraud claim delves into matters of church doctrine or policy or our decision in this case does not run afoul of the church autonomy doctrine. In other words, the. The court is saying, and the church was very wise to push this issue, that even if special rules didn't apply to the church because it is a religious organization and the First Amendment exists, the church didn't do anything wrong.

Kolby Reddish [01:41:28] And I think that was very smart lawyering by the church. You know, I can give them praise when praise is due to say, we want the court to recognize that even if we didn't have special rules, we didn't do anything wrong. And the fact that they were able to secure that, I think is a really big victory for them, even if I don't particularly like that victory. Any thoughts on that?

Gerardo Sumano [01:41:54] Yeah, I agree. I mean, that. That's a good point. This is a big win for the church in that sense that they can say today, they can say, you know, we didn't deceive, we didn't defraud the members. A court already ruled on that. And that doesn't have anything to do with the fact the ruling doesn't or. And the decision doesn't have anything to do with the fact that we're a church.

Kolby Reddish [01:42:23] Yeah. Now, things that the decision doesn't speak to is it deals with Huntsman's claim. So someone earlier asked about the SEC order. The SEC order happened after Huntsman's claim. So how. What import the SEC order would have. We. We don't know.

Kolby Reddish [01:42:40] I know that that's a feature of the Chappelle litigation. So maybe that will affect the Chappelle litigation and distinguish it from what happened in this case, but the reality is we just don't know that. And so I guess the. The way I wanted to close on the majority decision is, you know, we, as exmos, can be disappointed with the result, but our disappointment doesn't change the result. And we need to be accurate in how we talk about it.

Kolby Reddish [01:43:04] We should absolutely keep trying to tell our stories in the ways that we can. People can feel free to share, like, some of the assumptions that went in to the court's opinion and talk about the reasonableness of that, as we've talked about with that 647 page terms and conditions. I think that's context that the court was not offered. And so they didn't decide that that didn't matter. It wasn't offered to them.

Judge Bress Concurrence and Faith Fraud Cases

Kolby Reddish [01:43:28] The other thing that we've talked about a number of times is we've talked about how getting the church to say this stuff out loud and in the open is its own form of victory. And I think was really, you know, we all knew that this case was a long shot. I think even Huntsman himself included, I don't want to speak for him, but I think he knew that. And so getting the church to say some of these things out loud and bring some of these things to light are its own victory.

Kolby Reddish [01:43:52] And so it's important to note that. That we're making the church be more open and giving more informed consent about what it is to people who are, you know, 10, 15, 20 years behind us in faith deconstruction or just how they want to weigh these issues. I think the other thing I'd highlight is that anytime more information is shared about the church's finances. So this really started with David Nielsen, but folks like the widow's might team and the widows might report have continued this. The more that the public knows about the church's finances, the more that the church's actual charitable giving has increased exponentially. And so as these things are brought to light, actual good is being done by the church, and we should praise that.

Kolby Reddish [01:44:36] That that actual good is being done. And I just wanted to note that, that, you know, as we bring more transparency and more public interest in these issues, the church has adjusted its behavior accordingly. And I think that's important.

Gerardo Sumano [01:44:51] Agree.

John Dehlin [01:44:53] Let's look quickly at the concurrence.

Gerardo Sumano [01:44:57] Exit that. That. That slide. And going back, I just. Because I added an image to that. To that.

John Dehlin [01:45:06] Okay, here we go.

Gerardo Sumano [01:45:08] Thank you. Yeah. So that. That's just. Do you get an idea of who Judge Breast is?

John Dehlin [01:45:15] He. But we're talking about the concurrence now, Gerardo, Just for the context.

Gerardo Sumano [01:45:20] Yeah. Concurrence.

Kolby Reddish [01:45:21] Judge Brass wrote the first concurrence, joined by four. Four judges total.

Gerardo Sumano [01:45:25] Yeah. So here's an article from the Catholic University of America announcing the Catholic Laws center for Religious Liberty sponsors a conversation with Judge Daniel Bress. So these are issues that are really important to this type or these. To these judges, just to kind of give some context about it.

Kolby Reddish [01:45:50] Yep. And this concurrence is scathing about the lawsuit, as well as James Huntsman himself. Personally, that's a little odd from my perspective. I've. It's very rare that you see an appellate opinion address like one of the litigants motivations and stuff, so in depth. But this is how it starts just to, to kind of show where my, my head is at making that claim that it's pretty scathing and just, just

Gerardo Sumano [01:46:19] not to be political but just so people don't know, you know, how this judges make it to where they're at. Sorry, Kolby. He was appointed by Donald Trump.

Kolby Reddish [01:46:27] He was his first term.

Gerardo Sumano [01:46:29] Yeah.

Kolby Reddish [01:46:29] Yep. So Judge Breast wrote this lawsuit is extraordinary and patently inappropriate. A not so thinly concealed effort to challenge the church's belief system under the guise of litigation. The majority is correct that there was no fraudulent misrepresentation even on the terms of plaintiff's own allegations. But it would have done well for the en banc court to recognize the obvious. There is no way in which the plaintiff here could prevail without running headlong into basic First Amendment prohibitions on courts resolving ecclesiastical disputes. And the only thing I wanted to say about this before we look at a few more lines from this concurrence is one of the odd things about an aside like this is there's also a long standing and long recognized doctrine of constitutional avoidance that the Supreme Court of the United States recognized over a hundred years ago.

Kolby Reddish [01:47:17] That doctrine of constitutional avoidance means that if a court can resolve a question without resulting to having to interpret the Constitution or without having to touch the Constitution, it should do that without touching the Constitution. The idea and the concept behind that doctrine is that they want to touch the Constitution as little as necessary, interpret it as little as necessary to leave those questions open for future courts. And so that's a principle of law that's exist for the, existed for a long time. And so I want to just note that it's, it's, it's odd to basically say, you know, the.

Kolby Reddish [01:47:52] In Judge Bress opinion, the court should have basically thrown that doctrine of constitutional avoidance aside and have addressed the First Amendment issues head on in part, as Gerardo has already highlighted. Because Judge Breast feels so strongly about this particular issue. Again, that's whether you agree or disagree with him. He feels that it's so important it should have been addressed even though there's this doctrine that says courts shouldn't decide constitutional issues unless they absolutely have to. Any thoughts on that?

John Dehlin [01:48:25] Looks like he feels like this is a missed opportunity.

Kolby Reddish [01:48:28] I think he, he definitely does. So if you'll go to the next slide, John, here's a few lines I pulled from it just to Give people a feel for Judge Bress's concurrence. He wrote, while every judge on this panel agrees that the plaintiff's claims fail, I write separately to explain why a suit like this could never succeed under the First Amendment's church autonomy doctrine. Church leaders viewed the project as central to the church's future and objective. There is no suggestion that the project involves self dealing on the part of church leaders. And I included that last part because the way Judge Breast seems to hint that he would have ruled is that a fraud case can only exist against a religious institution when you do have direct evidence of self dealing or self enrichment.

Kolby Reddish [01:49:12] There's actually a later footnote in the same opinion or in the concurrence where Judge Bress writes, the church acknowledges and I agree that the church autonomy doctrine would not immunize religious leaders from fraudulently enriching themselves under the guise of religion. So it seems to me that that's where Judge Breast would draw the line that unless there's evidence of personal enrichment or corrupt dealing to that level, that the First Amendment would protect a religious institution basically doing anything but that.

Gerardo Sumano [01:49:48] Yeah, yeah.

John Dehlin [01:49:49] I, I, I don't know if, if what I'm about to share is really relevant or not.

Gerardo Sumano [01:49:55] I, I want to ask really quickly what, what is your opinion, John, on this idea that Judge Breast idea that the way the, basically the one way he suggests where you can catch a, a church on fraud is only by self. But if basically like a church leader is self enriching themselves, that's the only way a church can commit fraud.

John Dehlin [01:50:25] I mean again, this is where you have to understand the Mormon context because I do think, well first of all, because churches don't have to be audited externally because they don't have to be transparent in their finances at all. We don't even know how much people are making. All we have is some church paid auditor every year standing up in front of the membership and saying everything is fully accounted for and proper. And they do that every year and we've never had them do anything other than that. Like how would we ever have any chance of knowing whether there really was self dealing? That's, that's the first thing is the law makes it impossible to even know.

Kolby Reddish [01:51:15] Yeah. And what it means, what Judge Breast is really saying. And Judge Bumete, when we get to his concurrence, I only have like one or two lines from it. What they're really saying is not only do churches get to prescribe like religious rules and doctrines, but it seems to me like we're at this place where judges want to push this even further and basically say in secular matters, like beyond. Like, I think all of us would agree that the church absolutely has the right, protected under the First Amendment, to say whatever religious doctrines it wants. Right. It can teach even doctrines that are really abhorrent things like the past teachings on racism, for example, and racial restrictions on priesthood.

Kolby Reddish [01:51:52] They could continue teaching those things as religious doctrines. But I think it's this. It's this overlapping Venn diagram where what is religious versus what is secular becomes a much more complicated question. And that's where I'm troubled by Judge Bress's concurrence and what he's indicating religions have the right to do. Because it seems to me like he's saying religions get to pick and choose what part of the legal field and honestly what part of society's laws they want to participate in based on how they define their doctrine. Because the. The idea behind this is breast is saying that, well, the church prescribed tithing as a doctrine, as a religious doctrine.

Kolby Reddish [01:52:30] So what's. What's to stop me in this fictional church that we've talked about starting, you know, a secular church from saying something very similar, like, my. My divine law is that you shall do this, and therefore you get to do it. It just seems like we're at a really troubling place where religions will get to set the rules of how they interact with society with no oversight or even ability to question those decisions. That, to me, is very troubling.

Gerardo Sumano [01:53:01] Yeah, well, it is troubling. And also, when you put it in light of this is not the type. I mean, I'm not sure we didn't ever know about the outcome of. It is a hypothetical. But if we were talking about a Muslim church, I'm not sure that the decision would have come so strongly or the concurrence would have come so strongly on that side. You know, like, when you think about the. The polygamous churches and how much they have fought for their. For the right to at least not. Not be against the law when they're marrying multiple women. And I know there's a lot of problematic things with that, and I'm glad. I'm glad they just don't have a free card to do whatever they want. But, like, it's obvious that the courts have not sided with them all the time like they do with main mainstream Chris Christian churches.

John Dehlin [01:53:58] Yeah.

Kolby Reddish [01:53:58] Just to drive that point home, Gerardo, the Employment Division versus Smith case where Scalia basically says no religious beliefs, religious Beliefs are protected, but not all religious action is protected. That was a case involving a Native American religion and the sacramental use of peyote. And they basically said, no, you can be punished for a neutral and generally applicable law, even if it contradicts your religious beliefs.

Gerardo Sumano [01:54:25] That Scalia would have ruled that way knowing, you know, that use his thoughts about general religious protections when it comes to mainstream Christianity.

Kolby Reddish [01:54:38] Yeah, and that's. I guess that's another thing I wanted to highlight, is like, even Scalia, as conservative and religious as he was, recognized that the, the path, at least that's indicated in Bress's concurrence. It has a lot of problems because if. If people just get to pick and choose what parts of society's rules they opt into based on what they claim to believe, because courts can't adjudicate whether they actually believe it or the sincerity of the belief. I just think there's a lot of problematic roads that. That. That can go down.

Gerardo Sumano [01:55:11] Yeah, yeah, yeah, yeah.

Religion, the Supreme Court, and the First Amendment

John Dehlin [01:55:14] I don't know if this is useful or not, but I just wanted to share it.

Gerardo Sumano [01:55:18] We're geeking out on a lot of legal stuff, John.

John Dehlin [01:55:21] No, it's fine. I think that's why we're doing this episode. I found on Reddit a post that basically said the, you know, Donald Trump, the current president, United States, his admin picks by religious affiliation. And again, I want to just be really clear to our viewers and listeners. I, I like Mormon stories to be nonpartisan. I like Mormon stories. I want people, no matter who they vote for, no matter what their political party is, to. To. To feel comfortable watching Mormon stories. And when I mentioned a certain president or a certain party, that or anything, it's not out of a attempt to influence or bias anyone. It's just to try and discuss dynamics that affect us in the world today.

Gerardo Sumano [01:56:10] Well, and I think religious protections and the things that we care about.

John Dehlin [01:56:13] Yeah, and. And the public sphere and the public interest and that sort of thing. So just. Just for the sake of information, this is a. This is a listing of all of Donald Trump's picks, I guess. And one thing, just because, Gerardo, you brought up the fact that this justice happens to be Catholic. Catholics represent a large plurality of his appointments. So I counted something like 31 Catholics appointed, including his vice president, J.D. vance, you know, Marco Rubio and so many others. And then, you know, about 25 Protestants, evangelicals or typical Protestants. And there's a good, let's just say 10 or 11 or 12 Jewish appointees, couple Orthodox, Greek Orthodox, one Muslim you know, two Hindu, several.

John Dehlin [01:57:10] Let's just say 10 or 12, where it's unknown. And then, of course, there's two at the bottom that are interesting. One is that there is one Mormon that appears on the list. So Mormons weren't totally left out. The guy's name is Jameson Greer.

John Dehlin [01:57:29] He is a U.S. trade representative. And then, of course, the great Elon Musk, where it lists no religion. And I don't know if it's interesting or relevant to even list that, but it does look like Catholics have potentially a disproportionate sway or influence in the current administration, and I'm not sure if that's true.

Gerardo Sumano [01:57:49] Several Supreme Court justices are. Are Catholic. Right? Like, I think. I don't know. I know at least Emmy Coney Barrett,

John Dehlin [01:57:56] who was essential and obviously Scalia was. Scalia passed, right?

Gerardo Sumano [01:58:01] Yeah.

Kolby Reddish [01:58:03] Passed in, I think, 2015.

John Dehlin [01:58:05] Yeah. I don't know. Is any of that relevant, Kolby, or not? Is it just.

Kolby Reddish [01:58:09] I mean, I think it's relevant. And I don't even, again, to your comments of we want everyone to feel welcome. I mean, I feel that way, too. I like talking about these things just for what they are. And then you can have a conversation about what they mean. Because the reality is I'm still kind of undecided on all of that. What does it mean? Right.

Kolby Reddish [01:58:27] I think the reality is we don't know. Every class, it feels like every class that I go in and teach twice a week now, a student will start by raising their hands and asking me some question about what the Trump administration has done in the last couple weeks. And the reality that I keep having to tell them is we're in kind of unprecedented territory on a lot of this stuff, and we really don't know. We don't know how it's all going to shake out. Obviously, as Americans, we all hope for the best, but one of the reasons we're having this discussion is to talk about the areas where we're potentially concerned, because I am potentially concerned about religious overreach.

Kolby Reddish [01:59:05] The hallmark of the First Amendment for a long time was that the government had to be agnostic with regard to religion. And one of the things that struck me about Judge Bress concurrence is how often it seems to present the church's beliefs as just the way they are, rather than saying, like, the church believes this. It was kind of surprising language for a court decision. If we can go back to the slides, I'll give you an example of what I'm talking about here.

John Dehlin [01:59:29] Yeah.

Kolby Reddish [01:59:29] And you can Actually, you can actually skip this slide and go to the next one, John. That kind of just again highlights what we were talking about. Judge Breast feels the First Amendment would clearly preclude the claim in the first place. And then he writes, first, for Huntsman to prevail, a court or jury would need to agree with his view of what tithing funds in the Church includes. But that would intrude on the Church's authority to define that divine concept for itself. This highlights the comments I was making a few minutes ago. How far does that go? How far can the Church define stuff like this that touches on the secular realm before the First Amendment isn't implicated?

Kolby Reddish [02:00:08] I think is a question that troubles me based on this concurrence. He then continues, and this kind of highlights what I was talking about, how he buys the Church's premise. He says, according to the Church, tithing funds does not include the earnings on such funds. This is not mere lawyer speak. This interpretation, the Church says, came directly from the authority of President Hinckley at the time, God's prophet on earth, whose religious pronouncements are. Are authoritative in cites to doctrine and covenants 21 5. I just think that's interesting how often this opinion talks about. Talks about this in the lens that only the Church would present it. If you'll go to the next slide, there's another example. Yeah.

Gerardo Sumano [02:00:47] They're not saying the Church says, you know, the person

Kolby Reddish [02:00:52] here, he does, to be fair, the lead and said the Church says that he's a prophet of God. But they seem to buy that premise. And here there's no such indication. Do you want to read this slide, Gerardo?

Gerardo Sumano [02:01:01] Yeah. Huntsman cannot override the First Amendment's protections by abstracting the Church's statements about tithing from the religious context. President Hinckley was not addressing investors in a company. He was not required to speak through a generally Accepted accounting principles. President Hinckley was speaking as a prophet of God at a spiritual convocation about, among other things, funds, the payment of which is required by divine revelation. Even religious tenets that might seem incredible if not preposterous, may not be subject to trial on their truth or falsity.

John Dehlin [02:01:41] And how is it not reasonable to conclude that when he's talking about Hinckley, it's not because he thinks Hinckley's a prophet. It's because he's thinking about the Pope and he wants to make sure the Catholic Church has protections for whatever utterances the Pope might make and or decisions that the Catholic Church might make. It's almost like these people who are highly religious should recuse themselves because of their bias. How could it not affect their rulings?

Kolby Reddish [02:02:09] Well, and just to go hand in hand with that, there were a number of different religious organizations that joined the case as amicus cure, which we talked about a little bit before, which means they got the, they got the ability to write briefs and submit their perspective to this entire panel. And I guarantee there was Catholic representation in those groups.

Gerardo Sumano [02:02:27] Oh, for sure.

John Dehlin [02:02:28] We have a. We have a comment from one of our viewers and listeners, which is always fun. MCM LX IX 69 says, As a devout Catholic, I am happy with the distribution of the Supreme Court justices. Six of the nine Supreme Court justices are Catholic, and they go on to list John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. So there we have it. A Catholic in our audience is super thrilled with the extreme over representation of the Catholic Church in the Supreme Court and in the administration's appointees.

Kolby Reddish [02:03:07] Yeah, that's a lot.

John Dehlin [02:03:08] Yeah, Good for you. Good for you. Must be, Must be wonderful to wield disproportionate power and influence over our democracy.

Kolby Reddish [02:03:19] Yeah. And sorry I kept interrupting you. That's all I was going to say is six out of nine is more than 70%. And I don't know the number of Catholics in America off the top of my head, but I can guarantee you it isn't 70%.

John Dehlin [02:03:33] Well, I think MCM LXIX69 will tell us the percentage of Americans that are Catholic in short time. But MCM LX IX 69 also wants to be clear to say that they love Mormon stories. And we love you too. Hopefully, you know, we're just sort of tongue in cheek being silly to some degree.

Gerardo Sumano [02:03:54] 20 of the US population, according to April 2024.

Kolby Reddish [02:04:00] What percentage again?

Gerardo Sumano [02:04:01] 20% are Catholic. It's a lot larger than I thought, but.

Kolby Reddish [02:04:08] Well, that might have to do with how they count the numbers. As we know, there's, there's some.

Gerardo Sumano [02:04:12] Yeah.

Kolby Reddish [02:04:13] Fungibility in that, in the way the Mormon Church counts their numbers also.

Gerardo Sumano [02:04:17] Yeah, yeah. Most Latinos will never, won't show up to church, but they'll say they're Catholic and show up at the church other than a funeral or a wedding.

Kolby Reddish [02:04:28] Yeah. And so I guess, I guess, you know, we know where Judge Bress's head is at on this issue. He basically views religion having a very special, special protection, special rule.

John Dehlin [02:04:41] And to basically anything a prophet, anything a church leader says is protected because it can be shrouded in, you know, spiritual, divine sort of context, that then means they. They don't get to be held. They don't have to be held accountable to the laws for what they say to their membership because it's going to always be spiritual. Right? Yeah.

Kolby Reddish [02:05:09] Yeah. I mean, to take this to its most absurd conclusion, right? What if President Hinkley, instead of making these statements about fraud, had told members that the second coming was so close that they needed to harm themselves or others? I don't mean to take this unnecessarily dark, but if the reasoning is whatever a prophet of God says at a spiritual convocation is completely protected from immunity by the First Amendment, that seems like a really troubling aspect of it. And to be fair to our Catholic friend in the audience and any believers who would listen, most religious people and most religious organizations don't do that type of behavior.

Kolby Reddish [02:05:50] They are really full of sincere people trying to do good. But one of the reasons we're concerned about where this jurisprudence seems to be heading is because not everybody is a good actor. And when we're creating these special exceptions that basically allow people to participate in society's rules as they choose, that is a really troubling that. I'm glad that that part of this concurrence didn't carry the day. But as I said in response to something you said earlier, Gerardo, I do wish that the court had just been. The part of this concurrence I wish had carried the day is that this was a First Amendment case.

Kolby Reddish [02:06:26] Because then at least, you know, we as the ex Mormons who do feel so misled, could at least say, well, it's because there are special rules that apply to churches and to the church, not because our perspective on this is ridiculous. But that's basically what the court says, right? Is that our, our perspective on this is a perspective that no reasonable juror could reach. Again, based on the case, the way it was presented to them, and without some of the context, I wish they would have understood. Let's touch really briefly on Bumete's concurrence.

A Concerning Concurrence and Constitutional Philosophy

Gerardo Sumano [02:06:58] So this was a little bit, this one was a little bit. Scary to me. I don't know.

Kolby Reddish [02:07:07] We.

Gerardo Sumano [02:07:08] We'll talk about it. But. Yeah. Do you, do you want to talk about. I'll say just to give a little bit of context of who Judge Mete is. He was appointed by Donald Trump in 2019. His has pretty conservative views when he, as far as I can tell, on his rulings. And it, it, it's surprising because he is openly gay and doesn't mean that gay, gay people cannot be conservative. But. But it is surprising that a gay person would be influencing decisions that affect so many people in, in this way. But we can talk about, does this

John Dehlin [02:07:56] mean Donald Trump likes gay people? Is that what this means?

Gerardo Sumano [02:07:59] Big gay people that are. That ruled this way or.

John Dehlin [02:08:06] Okay, all right.

Kolby Reddish [02:08:08] Yeah. No, I think that context is important. Thank you, Gerardo, and thank you for not making me say it. Judge Bemente's concurrence begins, and I'm actually not going to go line by line through his concurrence, this concurrence. So you see concurrences or dissents like this a lot. This concurrence is clearly aimed at trying to get him a slot on the Supreme Court of the United States because it's longer than the other two, the majority opinion and the other concurrence put together. It takes up the majority of the length. And I reviewed it and there's a lot of interesting stuff we could say about.

Kolby Reddish [02:08:44] Basically has a very conservative, originalist take. It goes back to looking at English common law and the way the English law handled the Church of England and its handling of religion to basically inform its First Amendment jurisprudence. We're not going to go through all those details. I really just pulled these two paragraphs from his ruling because I think they, they are the most important part for people to understand. He says, my colleagues believe we have a choice on how to resolve this case according to the majority and main concurrence. We can either decide the case on the merits or we can take the Church of Jesus Christ of Latter Day Saints President's word on the meaning of tithing, and conclude that the Church did not misrepresent its actions.

Kolby Reddish [02:09:23] Or we can decide this case based on the church autonomy doctrine, which precludes courts from reaching religious questions and deny the fraud claims. If you'll go to the next slide. These two paragraphs go hand in hand. The Constitution gives us no such choice in deciding religious matters. The Constitution strictly limits our authority. Simply put, the church autonomy doctrine bars federal courts from resolving matters of faith doctrine and church governance.

Gerardo Sumano [02:09:50] Isn't he accusing the majority of violating the Constitution? Basically?

Kolby Reddish [02:09:54] Yep, he absolutely is, under his view of the Constitution, which luckily, and this is part of the reason that I don't go more substantively through this. It's only his opinion. No one else signed on to this. This isn't well established, but wouldn't you.

Gerardo Sumano [02:10:07] I mean, I know you have to be really careful, but I'LL just say, I think his views are really close to a lot of the judges today at the Supreme Court.

Kolby Reddish [02:10:19] Oh, yes. Which I think is why he wrote this concurrence.

Gerardo Sumano [02:10:22] Yeah, he's basically, I'll say, campaigning for a Supreme Court nomination during this administration.

Kolby Reddish [02:10:29] I would agree with that. So he continues and says, so we cannot just sidestep the doctrine and jump straight to the merits, nor can the doctrine be assumed away, considered an afterthought, or serve as a convenient alternative ruling. Rather, it is a threshold structural bar that must be reckoned with, otherwise we violate the restraints the Constitution places on our power.

Kolby Reddish [02:10:51] So what this means is, as I've said, of just Judge Breast's concurrence, what this means is that the church autonomy doctrine seems to go as far as whatever the church is at issue says as a religious question. That seems to be what Judge Bamete is saying. And before I get your thoughts, I just wanted to offer an alternative perspective from history. So this is one of the things I love about legal precedent, is it does teach us a lot about history and you learn a lot about history while you go through it. I wanted to share some words from Justice Robert Jackson. So he was an Associate supreme court justice from 1941 to 1954, and he is widely regarded as one of the most influential justices in American history.

Kolby Reddish [02:11:30] He's known for his clear, concise legal writing and his role before he was a Supreme Court justice as the chief prosecutor at the Nuremberg Trials. John, do you want to share what the Nuremberg trials were?

John Dehlin [02:11:42] I mean, I'm a little bit rusty, but it was basically just the trials of Nazi Germany, participants in the Holocaust.

Kolby Reddish [02:11:51] Exactly. It was. It was the trial of basically what. How. How to handle what happened at the Holocaust. And Jackson was the chief prosecutor before he became a Supreme Court Justice. He played a key part in shaping US law and international law after World War II. So there is a case that Justice Jackson wrote a dissent on called Terminello vs. Chicago. The case was decided in 1949, but it actually happened during World War II. And it involved the conviction of a Catholic priest named Arthur Terminello in Chicago, obviously who was arrested for inciting a riot after he delivered a controversial speech in which he made inflammatory, anti Semitic remarks about various groups, including racial minorities and Communists.

Kolby Reddish [02:12:41] Terminello had been speaking at a political rally in Chicago, and his speech sparked a violent disturbance with protesters clashing with police and members of the audience. He was charged under Chicago's ordinance that prohibited public speeches likely to provoke violence or disturbances. Terminello appealed his conviction, arguing that the First Amendment protected his right to free speech such that he couldn't be convicted based on offering this speech. That then led to basically what amounted to a riot.

Kolby Reddish [02:13:12] The case ultimately went all the way up to the Supreme Court. The Supreme Court held that Terminella was right, that his First Amendment rights protected giving that type of speech, even though a reasonable person could see where that was going to lead. And there's a line that Justice Jackson wrote in dissent in that case. So Justice Jackson disagreed with that. And I think about this line a lot as we look at contemporary action. Unfortunately, Justice Jackson wrote in dissenting saying that the Constitution would allow for someone to be punished for that behavior. He said, the choice is not between order and liberty. It is between liberty with order and anarchy without either.

Kolby Reddish [02:13:53] There is a danger that if this Court does not learn to temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. And that language is strong. But what he's saying is if we give people the ability, through the guise of constitutional rights to have no consequences for what they do, it can create some very scary and some very odd situations and can lead to basically upending the entire Constitution under the guise of protecting the Constitution.

Kolby Reddish [02:14:30] Abraham Lincoln also gave a famous speech about this when he was called on the carpet by Congress for suspending the writ of habeas corpus during the Civil War or during the lead up to the Civil War. And he basically highlighted how difficult these decisions can be by saying in his speech, basically this idea that what was I to do to let all the laws but one go unviolated? The idea being he was in a legitimate constitutional crisis, and if he had followed the strict procedure prescribed by the Constitution, we would have probably lost the nation. At least that was Lincoln's perspective.

Kolby Reddish [02:15:06] I just share these thoughts to say Judge Bhumeti's concurrence basically gives religion free reign, even as a threshold structural bar to, say, the religious courts, or, I'm sorry, the federal courts cannot do anything about these religious questions. And what constitutes a religious question is defined. Defined by the religion itself. I would say that is taking the First Amendment to this place that Justice Jackson was concerned about with the Bill of Rights being becoming a suicide pact and basically upending the entire reason we have a Constitution in the first place. Maybe that sounds a little doomerish, but it's my honest opinion that when we, when we allow that level of religious autonomy and independence, that it gets into what, you know, the majority of the court viewed as a purely secular matter. That I think is a clear problem, because I don't know how far down the rabbit hole that journey would go.

Gerardo Sumano [02:16:00] Yeah, yeah, I. I did wanted to respond and maybe clarify some of my comments. When I talk about conservative and I talk about Jezebel Mates being a conservative, I'm not talking about political party. I'm talking about. We're talking about legal issues. And when I talk about conservative, it just means this idea of reading the Constitution. Like we've said, the. The way it was written, when, you know, when an amendment was passed, what was the intention, and that's the way we should interpret it today. That's what conservative would do. My. My. What I noted as surprising about Momenti being so conservative and so rigid, which most judges are not that way.

Gerardo Sumano [02:16:46] So rigid in, like, an originalist view of what was written in the Constitution, is that when you do that, you basically take. You can get rid of all the federal protections for LGBT people that have been granted through court cases, you know, like. Like the legal right to marriage. Marriage and. And discrimination in employment. So if you become an origin originalist, those cases, you. You basically disagree with those cases and basically agree that they should be reversed or tossed out. That's surprising, given that, you know, a gay person would be advocating for a view of the reading of the Constitution that would take away rights of gay people if the. If that view was applied in those cases. That. That's all I'm saying.

Kolby Reddish [02:17:35] But, no, I appreciate Sorado.

John Dehlin [02:17:39] We had a commenter named Ry Ask. He basically said gay people are allowed to be conservative. What's wrong with the gay conservative? Gerardo? There was also an assertion made that the majority of conservatives are homophobic. Is that what you're claiming, Gerardo? And. And can you. Can you make room for a. A politically conservative gay person?

Gerardo Sumano [02:18:02] Yeah, I don't think I ever said that. I have friends who are gay, are married, and are politically conservative. That's not at all what I'm saying.

John Dehlin [02:18:09] Okay. No, I'm not saying. You're saying that.

Gerardo Sumano [02:18:11] Yeah, yeah.

John Dehlin [02:18:12] I'm just wanting to clarify so that people don't misunderstand.

Gerardo Sumano [02:18:15] Yeah, for sure.

John Dehlin [02:18:17] Okay.

Kolby Reddish [02:18:18] Yeah. So when you say conservative, you mean they're more like an original and they're.

Gerardo Sumano [02:18:23] Yeah. And they read how they read the Constitution, how they think it should be read and how decisions should have been made.

Kolby Reddish [02:18:31] Yeah. That's all. Yeah, I. I mean, the best example of that in my mind is Scalia. Right. Scalia once famously said, the Constitution is dead Dead. Dead. And what he means by that is not that the Constitution doesn't matter. He means that the meaning of the Constitution was fixed by the people who wrote it. The flip side of that is that the entire basis of our system of government is the power is in the people. And the idea of John Locke's social contract theory, I won't get too nerdy with this just for one second, just to say the idea is that our government exists because the people allow it to exist.

Kolby Reddish [02:19:06] And so the view of a more evolving Constitution, or maybe a looser Constitution, or someone who's more tied to textualism, maybe I'm hinting at, which I would be, is that those words mean what the people who have the power to create the government think they mean, not necessarily what people in the 17 and 1800s for whom a modern dishwasher would be viewed as black magic think they meant. Because the other obvious problem we have when we take that, that strong of an originalist bent is we also have to decide how we're going to reckon with the United States history. I mean, the reality is that until the Constitution was changed, the original Constitution of the United States allowed for the three fist compromise, allowed for the treating of, of black slaves as 3/5 of a person.

Kolby Reddish [02:19:59] That's the reality of history that we have to reckon with. That even though America is, I think, has some of the most wonderful, lofty, beautiful goals, we haven't always lived up to those goals. That doesn't mean that it's not worth anything or that those goals aren't worth working towards. But we have to figure out how to reckon with this history. And I think this is an ongoing conversation. This piece, First Amendment piece, is just one part of that conversation. How do we reckon with this for sure?

John Dehlin [02:20:28] Now a Reddish provided a super chat. Something tells me that might be someone you know. Kolby.

Kolby Reddish [02:20:35] Yeah, that might be my mom.

John Dehlin [02:20:37] Hey, Kolby's mom. Thanks for the super chat. Thanks for the support. All right, well, I think we're coming close to the end. Is it time to talk about what's next?

Next Steps for the Case and Closing Reflections

Kolby Reddish [02:20:49] Yeah. So procedurally, Huntsman does have the ability to appeal the decision to the Supreme Court of the United States. I would be shocked if they actually go through the time, effort and expense of doing that. Because like we said, I, I doubt the Supreme Court would disagree with the decision that was rendered here. If anything, they may side more with one of the concurrences.

Kolby Reddish [02:21:10] This case, even though it isn't binding on what happens in the Gaddy and Chappelle case, likely will be an indication of how those cases resolve. The only question I have in my mind is how the SEC order, if at all, plays into this. The SEC order was released last year, or, I'm sorry, February 2023, so two years ago now. And it came to light after Huntsman's case. So the only way I can see Huntsman's case surviving in any way is, is if there's, the court allows basically, a motion to amend to deal with the SEC order issues. But I don't know that that's an option that's available to them at this point because I just don't know which way the judge would rule on that.

Kolby Reddish [02:21:52] It is implicated in the Chappelle case. So if the Chappelle case moves forward, it may be on that fact that distinguishes it from Huntsman. But, you know, in essence, yep, this is a pretty solid loss and an unequivocal win for the church. Like we've talked about. I sure wish some of the context we've talked about in this episode would have been presented to the judges because I hope that it would have affected their opinion and maybe led to a different result. But, you know, judges decide the case as it's presented to them, and this is the decision that we've talked about.

John Dehlin [02:22:23] Yeah, I will, I'll share a comment from Coach from the Cultural Hall. We love Colch and the Cultural Hall YouTube channel. He writes. Thanks for having Kolby on. I always appreciate hearing his analysis. Glad to call him a friend. Love you, Coach. Love what you do. Thanks for the support. Thanks for the donation. Any final words? Gerardo, how are you feeling? Discouraged. Excited. Get. Tell us your closing, closing thoughts.

Gerardo Sumano [02:22:53] Well, I, I, I am a little bit sad that this was a, a decision that was arrived at by the like, unanimously, like I mentioned at the beginning. But at the end, you know, it is what it is. So I, I think, like Kolby said, there are really good things that will come out of this and that have already come out of it, like the church trying to be more transparent about the way they're spending the money or spending more money in welfare than they used to in the past. You know, if you just go back to 2016, we have a, a, a statement by Elder Darling H.

Gerardo Sumano [02:23:39] Oaks on the Desert News where he says that the church spends $40 million on welfare every year. And at that, at that time, before the, before anyone knew how much the church was worth or how much money the church had, you know, everyone was like, celebrating the $40 million amount that Elder Oaks talked about.

Gerardo Sumano [02:24:03] And today we know, as, as soon as the news was released about the billions of dollars in, in funds and investments. You know, now the church has reported a one billion dollar investment in, in welfare from, you know, every year since, since the news broke. So I think news, I think there are positive things that have come out of it. And yeah, that, that's, that's all I have right now.

John Dehlin [02:24:41] Kolby, any final thoughts you want to share?

Kolby Reddish [02:24:44] Well, I just want to thank you for allowing me to come back and share. I think it's important to talk about these things and talk about the rules as they exist, even if we may disagree with them. I have nothing but upmost respect for our courts and I hope my comments today reflect how much I care about these issues. If nothing else, I think it's important that we did this follow up and talk, talked very openly about, you know, some of the context we wish would have been offered to the judges or that we wish would have been better understood and addressed, but ultimately it wasn't. And you know, this type of public advocacy through the legal system happens slowly, incrementally over time. And so I'm, I'm glad that we got the chance to talk about this. And thanks so much for having me, John, and for all that you do.

John Dehlin [02:25:34] Thank you, Kolby. Thank you, Gerardo. I'll just say reflect what I said earlier. Well, one, thank you, Kolby and Gerardo, for bringing your thoughtful insight and analysis to this case, not just today, but in all the episodes and all you both do.

Personal Thanks to James Huntsman and Final Thoughts

John Dehlin [02:25:50] I just want to reiterate what I've said that personally, I just want to give my heart and my thanks to my friend James Huntsman, to his family. You know, some would say that, that they carry some privilege with their position.

John Dehlin [02:26:07] And I would just say, you know, number one, James didn't have to do this. He's probably going to be fine either way. He probably did this at some considerable familial and or social cost and psychological and emotional and financial cost.

John Dehlin [02:26:26] And he didn't have to do it, but he used his privilege and means to fight for something that I think at the end of the day was very personal for him. But I also think there would, there would at least be some secondary motive to help, at least at a minimum convince the Mormon Church to be more honest and upfront about its financial dealings, but secondarily or tertiarily to help prevent future fraud of Mormons and not just of Mormons, but of any members of churches or religions or high demand religions that might be influenced by undue influence. So I Just want to say thank you to James and his family and all those who supported him.

John Dehlin [02:27:12] I also want to thank David Nielsen and his family and all that they've done and that he's done to help bring truth and accountability to light. And you know, just like with Prop 8, my hope is that while there are going to be some setbacks, that in the long run, if I am a person of faith, it's in the matter of Martin Luther King Jr. That the arc of history is long and it bends toward justice, that these, these decisions that sometimes can be, can feel like real setbacks, hopefully in time can lead towards better decisions getting made. Because at the end of the day, the Mormon church is a 250plus billion dollar organization and it's been very obviously dishonest in how it's managed its finances and, and how it's wielded undue influence on its membership and, and those things need to change.

John Dehlin [02:28:21] And it's not just the Mormon Church, but it's other churches, it's other religions, it's other high demand religions. L. Ron Hubbard, the founder of Scientology, said it best. Something to the effect of if you want to get rich, start a business. If you want to get really rich, start a religion. And I think there's too much protection of churches in the United States both in terms of, you know, exemptions around religious freedom, but also on, you know, the lack of requirements for financial transparency. I think that's bad for our country. I think that's a problem. And I, I hope that in the long run the, the courageous acts of James and of, of David Nielsen and others lead towards, you know, better law and better healthier guidelines and protections for all of us.

John Dehlin [02:29:15] That's my final thought and wishes. And you know, I want to thank Maven and Julia and Brooklyn and again Gerardo and everyone at the Open Stories foundation that make all this possible. I want to thank our donors. We couldn't do this without our donors. So all of you who donate monthly to the Open Stories foundation, we couldn't do this without you. So thank you. Your donations literally keep the lights on and pay the bills.

John Dehlin [02:29:43] We do our best at Mormon Stories, the Open Stories foundation, to be fully transparent, you know, by, by revealing by, by publishing our 990s every year and by trying to have transparency reports where within reason, we are transparent. So hopefully we're doing our job to be as transparent as we should be. But mostly I just want to thank our donors and remind all of you if you value this type of content, you want to See? Continue. You can go to mormonstories.org Become a monthly donor, and your donations in the US are tax deductible. And we covenant with you to use your donations to further the mission of the organization.

John Dehlin [02:30:24] You can also help us by subscribing on YouTube, Facebook, Instagram, and TikTok and wherever else you see our content, by sharing these episodes, by liking them, by commenting on them. And we always love your feedback@mormonstoriesmail.com and if you want to be a panelist and or a guest on Mormon stories, you can go to the Apply Button on the MormonStories.org webpage and apply to become either a panelist or a member. All right. Thanks, Kolby.

Kolby Reddish [02:30:55] Thanks, John. Can I say one thing in your closing comment that I love?

John Dehlin [02:30:58] Go ahead, Kolby.

Kolby Reddish [02:30:59] So that that quote that you shared from Dr. King, that the, you know, the. The slow, long arc of history is a Ben Storage justice, I would just say it doesn't bend that way automatically. It bends that way when people have these types of discussions, when we talk about the way things are and we talk away about the way we think things should be. And so these types of conversations are really important, and getting involved is really important. And you can't get involved until you understand how this stuff works as it is today. And so that would be my last little plea, I guess, is whatever, you know, whatever you believe, whatever side of the political spectrum or jurisprudential spectrum you fall on, let's just all try and lift where we are and try and push things in that direction towards justice and towards equality.

Kolby Reddish [02:31:50] That'd be my. My closing plea. That's the reason that I am glad you asked me to do this so that we can further people's knowledge of this, because that's the first step is understanding where we're at before we can figure out how to go where we want to get collectively.

John Dehlin [02:32:03] I agree. Yep. That's why I'm grateful to James and David and all those who have helped push this ball along. Berardo, did you have a final comment?

Kolby Reddish [02:32:11] No.

Gerardo Sumano [02:32:12] No, I didn't.

Closing Remarks and Sign Off

John Dehlin [02:32:13] Okay. All right. Well, thanks again, brethren. We hope to have you back on often in the future for more insight and analysis. Thanks again to everyone for joining us today on Mormon Stories. Be good to each other, be kind to each other, and we'll see you all again soon on another episode. 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.