James Huntsman v. Corporation of the President

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES HUNTSMAN, No. 21-56056

Plaintiff-Appellant, D.C. No.

2:21-cv-02504-

v. SVW-SK

CORPORATION OF THE

PRESIDENT OF THE CHURCH OF OPINION

JESUS CHRIST OF LATTER-DAY

SAINTS,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted En Banc September 25, 2024

San Francisco, California

Filed January 31, 2025

Before: Mary H. Murguia, Chief Judge, and Milan D.

Smith, Jr., Jacqueline H. Nguyen, John B. Owens, Michelle

T. Friedland, Daniel A. Bress, Patrick J. Bumatay,

Lawrence VanDyke, Jennifer Sung, Gabriel P. Sanchez and

Ana de Alba, Circuit Judges.

2 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Opinion by Judge Friedland;

Concurrence by Judge Bress;

Concurrence by Judge Bumatay

SUMMARY*

Fraud / First Amendment

The en banc court affirmed the district court’s order

granting summary judgment to the Church of Jesus Christ of

Latter-day Saints (“the Church”) in an action brought by

James Huntsman, a former member of the Church, alleging

that the Church had committed fraud by using tithing funds

to finance commercial endeavors despite stating that it

would not do so.

Huntsman contended that the Church committed fraud

under California law by misrepresenting which funds it used

to finance the City Creek Center project, a redevelopment of

a commercial shopping mall in downtown Salt Lake City,

Utah; and which funds were used to allegedly “bail out” the

Beneficial Life Insurance Company, a Church-owned entity.

Huntsman tithed substantial sums to the Church from 1993

to 2015.

The en banc court held that no reasonable juror could

conclude that the Church misrepresented the source of funds

for the City Creek project. The Church had long explained

that the sources of the reserve funds included tithing funds,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 3

and Huntsman had not presented evidence that the Church

did anything other than what it said it would do. The en banc

court held that Huntsman’s claim with respect to the $600

million allegedly transferred to Beneficial Life also failed.

Huntsman did not identify any specific statements made by

the Church about the source of funds for Beneficial Life.

Accordingly, the record did not support a claim of fraudulent

misrepresentation. Finally, the en banc court held that the

church autonomy doctrine had no bearing in this case

because nothing in the court’s analysis of Huntsman’s fraud

claims delved into matters of Church doctrine or policy.

Judge Bress, joined by Judges M. Smith and Nguyen,

and joined by Judge VanDyke except as to footnotes 1 and

2, concurred in the judgment. He agreed with the majority

that there was no fraudulent misrepresentation, but he would

hold that there was no way in which Huntsman here could

prevail without running headlong into basic First

Amendment prohibitions on courts resolving ecclesiastical

disputes.

Judge Bumatay concurred in the judgment only, because

it is necessary to decide this case on church autonomy

grounds. Because Huntsman’s claims involve court

interference in matters of religious truth, the church

autonomy doctrine bars reaching the merits of his claims.

4 HUNTSMAN V. CORPORATION OF THE PRESIDENT

COUNSEL

David B. Jonelis (argued), Lavely & Singer PC, Los

Angeles, California; Jake A. Camara, Berk Brettler LLP,

West Hollywood, California; Bradley Girard, Democracy

Forward Foundation, Washington, D.C.; Jenny Samuels,

Americans United for Separation of Church and State,

Washington, D.C.; for Plaintiff-Appellant.

Rick Richmond (argued), Troy S. Tessem, and Andrew E.

Calderón, Larson LLP, Los Angeles, California; Paul D.

Clement (argued), Andrew C. Lawrence, and Chadwick J.

Harper, Clement & Murphy PLLC, Alexandria, Virginia; for

Defendant-Appellee.

Eric S. Baxter, Laura Wolk Slavis, James J. Kim, and

Benjamin A. Fleshman, The Becket Fund for Religious

Liberty, Washington, D.C., for Amicus Curiae The Becket

Fund for Religious Liberty.

John A. Taylor, Jr., Horvitz & Levy LLP, Burbank,

California; Jeremy B. Rosen, Horvitz & Levy LLP, San

Francisco, California; for Amici Curiae Ayuda

Humanitarian, Charityvision, Five.12 Foundation, and

Thanksgiving Point.

Blaine H. Evanson and Joseph Edmonds, Gibson Dunn &

Crutcher LLP, Irvine, California; Joseph E. Barakat and

Katie R. Talley, Gibson Dunn & Crutcher LLP, Dallas,

Texas; Katherine L. Montoya, Gibson Dunn & Crutcher

LLP, Washington, D.C.; for Amicus Curiae J. Reuben Clark

Law Society.

David M. Andersen and Steven M. Sandberg, Brigham

Young University, Office of the General Counsel, Provo,

Utah, for Amici Curiae Association of Catholic Colleges and

HUNTSMAN V. CORPORATION OF THE PRESIDENT 5

Universities, Brigham Young University-Hawaii, Brigham

Young University-Idaho, California Baptist University, and

the Council for Christian Colleges and Universities.

Gene C. Schaerr and James C. Phillips, Schaerr Jaffe LLP,

Washington, D.C., for Amici Curiae 11 Major Religious

Organizations.

Richard B. Katskee, Joshua Britt, Margaret K. Kruzner, and

Luke Mears, Duke University School of Law, Durham,

North Carolina, for Amici Curiae Interfaith Alliance,

Lambda Legal Defense and Education Fund, Inc., National

Women’s Law Center, and Sikh Coalition.

Thomas Scott-Railton, Gupta Wessler LLP, Washington,

D.C., for Amicus Curiae Professor Robert W. Tuttle.

OPINION

FRIEDLAND, Circuit Judge, with whom MURGUIA, Chief

Judge, and OWENS, SUNG, SANCHEZ, and DE ALBA,

Circuit Judges, join:

Plaintiff James Huntsman sued the Church of Jesus

Christ of Latter-day Saints (“the Church”) in federal district

court. Huntsman, a former member of the Church, alleged

that the Church had committed fraud by using tithing funds

to finance commercial endeavors despite stating that it had

not and would not do so. The district court granted summary

judgment to the Church, holding that no reasonable juror

could find that the Church had misrepresented how it used

tithing funds. We agree and therefore affirm.

6 HUNTSMAN V. CORPORATION OF THE PRESIDENT

I.

A.

Huntsman first contends that the Church misrepresented

which funds it used to finance the City Creek Center project.

That project, first announced by the Church in 2003 and

completed in 2012, was the redevelopment of a commercial

shopping mall in downtown Salt Lake City, Utah, across

from the Church’s main temple and headquarters. Huntsman

also contends that the Church misrepresented which funds

were used to allegedly “bail out” the Beneficial Life

Insurance Company, a Church-owned entity, in 2009.

Members of the Church engage in tithing, a practice of

contributing ten percent of their annual income to the

Church. Tithing is the principal way that members

financially contribute to the Church. Huntsman, who comes

from a prominent family of devout Church members, tithed

for twenty-two years, from 1993 to 2015. Between 2003 and

2015, he tithed over $1 million in cash, over 20,000 shares

of Huntsman Corporation stock, and over 1,800 shares of

Sigma Designs stock. Huntsman later “became disillusioned

with the Church’s doctrines” and stopped tithing, eventually

resigning his membership from the Church.

The Church has a practice of setting aside a portion of its

annual income, which includes tithing funds that Church

members contribute that year, as “reserves.” The former

President of the Church, Gordon B. Hinckley, spoke publicly

about that practice on at least two occasions. In 1991,

Hinckley (then a senior Church leader) stated, “In the

financial operations of the Church, we have observed two

basic and fixed principles: One, the Church will live within

its means. It will not spend more than it receives. Two, a

fixed percentage of the income will be set aside to build

HUNTSMAN V. CORPORATION OF THE PRESIDENT 7

reserves against what might be called a possible ‘rainy day.’”

In 1995, Hinckley (then Church President) reiterated, “Not

only are we determined to live within the means of the

Church, but each year we put into the reserves of the Church

a portion of our annual budget. . . . Should there come a time

of economic distress, we would hope to have the means to

weather the storm.”

During the time the Church was developing City Creek,

the Church primarily invested its reserve funds through a

separate entity called Ensign Peak Advisors, Inc. Ensign

Peak held both reserve funds and earnings on invested

reserves. The Church used Ensign Peak funds to finance the

City Creek project.

Huntsman asserts that the Church made five public

statements about the source of funds for the City Creek

project. First, when President Hinckley announced the

project in April 2003 at the Church’s General Conference,

he stated:

We feel we have a compelling

responsibility to protect the environment of

the Salt Lake Temple. . . . 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

8 HUNTSMAN V. CORPORATION OF THE PRESIDENT

earnings of invested reserve funds, will

accommodate this program.

Second, in October 2003, Presiding Bishop H. David

Burton stated at a press conference about the City Creek

project that “[n]one of this money comes from the tithing of

our faithful members. That is not how we use tithing funds.”

Third, the Church magazine Ensign reported in 2006:

The Church first announced three years ago

it was planning to redevelop the downtown

area to energize the economy of the city that

houses its headquarters and to bolster the area

near Temple Square. No tithing funds will be

used in the redevelopment.

Fourth, the Church newspaper Deseret News reported in

2007:

Money for the project is not coming from

LDS Church members’ tithing donations.

City Creek Center is being developed by

Property Reserve, Inc., the Church’s real-

estate development arm, and its money

comes from other real-estate ventures.

Fifth, in 2012, the Salt Lake Tribune wrote the following

about Keith B. McMullin, the head of a Church commercial

entity: “McMullin said not one penny of tithing goes to the

Church’s for-profit endeavors. Specifically, the Church has

said no tithing went towards City Creek Center.”

Separately, the Church allegedly used $600 million of

Ensign Peak funds to “bail out” Beneficial Life. Huntsman

HUNTSMAN V. CORPORATION OF THE PRESIDENT 9

does not, however, identify any statement made by the

Church regarding Beneficial Life in particular.

David Nielsen, who was a Senior Portfolio Manager at

Ensign Peak from 2010 to 2019, filed a whistleblower

complaint with the Internal Revenue Service in 2019

alleging that the Church misused tithing funds to engage in

commercial ventures, including funding the City Creek

project and bailing out Beneficial Life. After Huntsman

learned about Nielsen’s complaint, Huntsman asked the

Church to return his lifetime tithing donations. The Church

refused, and Huntsman subsequently filed this lawsuit in the

United States District Court for the Central District of

California.1 Huntsman’s Complaint alleged that the Church

committed fraud by stating that tithing funds were not used

for the Church’s commercial endeavors when in fact they

were. The Complaint further alleged that Huntsman relied

on the Church’s statements in continuing to pay tithings.

B.

The Church moved for summary judgment, arguing that

it had made no misrepresentations. The Church contended

that the City Creek project had been funded with earnings on

invested reserves, not direct tithing contributions, and that

this was consistent with its public statements. As to

Beneficial Life, the Church argued that Huntsman had not

submitted evidence of any specific statements and thus had

not identified any misrepresentations that could possibly

support a fraud claim. In the alternative, the Church argued

1

Huntsman sued the Corporation of the President of the Church of Jesus

Christ of Latter-day Saints, which has since been renamed the Church of

Jesus Christ of Latter-day Saints.

10 HUNTSMAN V. CORPORATION OF THE PRESIDENT

that summary judgment was warranted under the First

Amendment church autonomy doctrine.

To explain the funding of the City Creek project, the

Church submitted two declarations. The first declaration, by

a director in the Church’s Finance and Records Department

named Paul Rytting, stated that all the funds allocated to the

City Creek project came from earnings on the Church’s

reserve funds invested by Ensign Peak, meaning that no

principal reserve funds (i.e., funds taken directly from

Church members’ tithing contributions) were used. Rytting

testified that Ensign Peak’s assets included both reserve

funds and earnings on invested reserve funds. In 2003 alone,

Ensign Peak accumulated approximately $3.9 billion of

earnings on invested reserve funds. On January 1, 2004,

several months after the Church announced the City Creek

project, Ensign Peak allocated $1.2 billion into an internal

account earmarked for the project. Those earmarked funds

were themselves invested and reached a total value of nearly

$1.7 billion before any appropriations were made for the

City Creek project. Then, from 2007 to 2012, Ensign Peak

periodically appropriated funds to a separate entity that

managed and owned the Church’s investment in City Creek.

In total, approximately $1.4 billion was appropriated for the

City Creek project. Rytting supported the foregoing

testimony with Ensign Peak financial documents.

The second declaration was by Roger Clarke, who stated

that he was “the President and Managing Director of Ensign

Peak from its inception in 1997 until [he] retired in May

2020” and that he had “knowledge of the Church policies

and practices relating to the management of funds” and “the

financing of the City Creek project.” Clarke’s declaration

affirmed the veracity of Rytting’s declaration and

HUNTSMAN V. CORPORATION OF THE PRESIDENT 11

authenticated the Ensign Peak financial documents that

Rytting had submitted.

In opposition to the Church’s motion for summary

judgment, Huntsman submitted a declaration by

whistleblower David Nielsen. Nielsen stated:

During my employment at EPA [Ensign

Peak Advisors], EPA’s senior leadership and

other EPA employees referred to . . . all funds

of EPA as “tithing” money, regardless of

whether they were referring to principal or

earnings on that principal. In addition, during

my time at EPA, tithing donations from the

Church’s members were commingled with

earnings that EPA had made.

Nielsen stated that Ensign Peak withdrew “approximately

$1.4 billion in tithing funds” for the City Creek project and

“$600 million in tithing funds” for Beneficial Life. He

described a presentation given by Ensign Peak President

Clarke at an employee meeting in March 2013. Clarke had

displayed a slide that listed “[e]xamples of withdrawals”

from Ensign Peak’s “investment reserve,” including “City

Creek: $1,400mm over 5 years,” and “Beneficial Life:

$600mm in 2009.”2 Nielsen stated that he had asked how

those withdrawals were consistent with the Church’s public

statements about “no tithing funds being used for City Creek

Mall or Beneficial Life.” According to Nielsen, Clarke

responded that the funds were transferred from Ensign Peak

to other Church-affiliated entities so that people would not

know that Ensign Peak was the source of the funds.

2

Nielsen attached a copy of the slide as an exhibit to his declaration.

12 HUNTSMAN V. CORPORATION OF THE PRESIDENT

The district court granted summary judgment in favor of

the Church. It first held that the First Amendment did not

prevent it from reaching the merits of Huntsman’s fraud

claims, and it then held that “no reasonable juror could find

[that the Church] made a misrepresentation.”

Huntsman timely appealed. A divided three-judge panel

of our court reversed as to the City Creek project. The panel

unanimously affirmed as to Beneficial Life.3 See Huntsman

v. Corp. of the President of the Church of Jesus Christ of

Latter-Day Saints, 76 F.4th 962 (9th Cir. 2023), reh’g en

banc granted, 94 F.4th 781 (9th Cir. 2024). Upon the vote

of a majority of non-recused active judges, we granted

rehearing en banc and vacated the three-judge panel

decision.

II.

We review the district court’s grant of summary

judgment de novo. Desire, LLC v. Manna Textiles, Inc., 986

F.3d 1253, 1259 (9th Cir. 2021). Summary judgment is

proper when, viewing the evidence in the light most

favorable to the nonmoving party (here, Huntsman), there is

“no genuine issue of material fact.” Soc. Techs. LLC v.

Apple Inc., 4 F.4th 811, 816 (9th Cir. 2021).

3

Before the court’s decision issued, the Church requested sealing of any

portions of the opinion that included “confidential and competitively

sensitive business and financial information relating to the operations of

the Church and its affiliated commercial entities.” The panel denied that

request, though the rest of the confidential financial information that the

parties submitted in this litigation has been maintained under seal. Here,

we discuss only the financial information already published in the now-

vacated opinion.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 13

III.

Huntsman claims that the Church committed fraud under

California law.4 The elements of fraud under California law

are “(a) misrepresentation (false representation,

concealment, or nondisclosure); (b) knowledge of falsity (or

‘scienter’); (c) intent to defraud, i.e., to induce reliance;

(d) justifiable reliance; and (e) resulting damage.” Small v.

Fritz Cos., 30 Cal. 4th 167, 173 (2003) (quotation marks

omitted). To constitute fraud, the misrepresentation

generally must be “a material and knowingly false

representation of fact.” Orient Handel v. U.S. Fid. & Guar.

Co., 237 Cal. Rptr. 667, 672 (Cal. Ct. App. 1987).

Huntsman argues that the Church committed fraud by

misrepresenting the source of funds for the City Creek

project and Beneficial Life. We address Huntsman’s claims

with respect to City Creek and Beneficial Life in turn.

A.

No reasonable juror could conclude that the Church

misrepresented the source of funds for the City Creek

project. 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

4

We apply California law here because Huntsman brought his claims

under California law, the Church has not challenged the applicability of

California law, and the district court did not discuss choice of law. See

Mont. Power Co. v. Pub. Util. Dist. No. 2 of Grant Cnty., 587 F.2d 1019,

1022 n.1 (9th Cir. 1978) (“There apparently was no consideration in the

district court of whether Washington or Montana law would apply to this

case. . . . Due to the absence of a decision by the district court, the failure

of the parties to even raise the choice of law issue, and the equivalent of

a waiver of the issue by appellant’s counsel, we will assume appellees

are correct and apply Washington law.”).

14 HUNTSMAN V. CORPORATION OF THE PRESIDENT

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.

President Hinckley qualified the assertion that tithing

funds would not be used by noting that earnings on invested

reserve funds would be used. In his 2003 announcement of

the City Creek project, Hinckley stated:

[T]ithing 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 invested reserve funds, will

accommodate this program.

(Emphasis added). That statement thus drew a distinction

between principal tithing funds, coming directly from

Church members, and earnings on the funds that the Church

sets aside from its annual income (which includes tithing

funds). The four subsequent statements that Huntsman

points to, which state without qualification that tithing funds

were not used for City Creek, can only be understood within

the context of Hinckley’s earlier statement distinguishing

between tithing funds and earnings on reserves, and they

therefore do not support Huntsman’s fraud claim.

The Church had also long publicly indicated that

“reserve funds” come at least in part from tithing funds. In

a 1991 statement, Hinckley suggested that tithing comprises

HUNTSMAN V. CORPORATION OF THE PRESIDENT 15

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.’” 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.

Ensign Peak’s financial records are consistent with the

Church’s statements that it funded City Creek with earnings

on invested reserve funds. The undisputed evidence in the

record indicates that Ensign Peak’s investments earned

approximately $3.9 billion in 2003 alone, which was more

than enough to cover Ensign Peak’s allocation on January 1,

2004, of $1.2 billion to the earmarked account for City

Creek. The undisputed evidence further indicates that the

earmarked funds were invested and increased in value to a

total of nearly $1.7 billion before any funds were

appropriated for City Creek. The approximately $1.4 billion

in total funds appropriated for City Creek thus in no way

belies the Church’s statements that City Creek would be

funded by earnings on invested reserve funds. Because each

relevant Ensign Peak account held enough earnings on

invested funds to cover the funds appropriated for City

Creek, any commingling of principal tithing funds and

earnings on invested tithing funds cannot support

Huntsman’s fraud claim.

Nielsen’s declaration does not contradict the conclusion

that Ensign Peak held sufficient earnings on invested reserve

funds to fund the project without using principal tithing

funds. Nielsen testified that Ensign Peak’s senior leadership

and other employees “referred to . . . all [Ensign Peak funds]

16 HUNTSMAN V. CORPORATION OF THE PRESIDENT

as ‘tithing’ money, regardless of whether they were referring

to principal or earnings on that principal,” and that the

approximately $1.4 billion that Ensign Peak appropriated for

City Creek came from tithing funds. The presentation slide

that Nielsen submitted with his declaration indicated that

“1,400mm over 5 years” was withdrawn from Ensign Peak’s

“investment reserves” for City Creek. Even accepting the

facts asserted in Nielsen’s declaration as true, 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 distinguished between principal and

earnings, so neither contradicts President Hinckley’s public

statement that only earnings would be used. They also do

not conflict with Ensign Peak’s financial records, which

show that Ensign Peak held sufficient earnings on reserve

funds to finance City Creek.

Moreover, even accepting Nielsen’s account that Ensign

Peak employees used “tithing” to refer interchangeably to

both principal and earnings, that does not support

Huntsman’s claim because President Hinckley drew a

distinction between those types of funds in his public

statements.5 And Nielsen’s additional assertion that Ensign

Peak President Clarke told him that the organization took

steps to obscure the source of funds for City Creek is

similarly inapposite. Even if true, that assertion does not

show that the Church’s public statements about the funding

for City Creek were misrepresentations.

5

We need not determine whether Nielsen, a former employee at Ensign

Peak, has any authority to speak for the Church about the meaning of

“tithing,” because Nielsen’s statements do not conflict with President

Hinkley’s statements.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 17

Finally, the term “earnings of invested reserve funds”

was not so ambiguous that the Church could have expected

or intended its relevant audience—here, Huntsman—to

misunderstand what it meant. Cf. Restatement (Third) of

Torts: Liab. for Econ. Harm § 9, cmt. c (Am. L. Inst. 2020)

(explaining that ambiguous statements are actionable if the

speaker intends that they be understood in their false sense

or is indifferent to which way the statement is taken). As

explained above, the Church had publicly discussed on

multiple earlier occasions its practice of maintaining reserve

funds. And the Church would have expected Huntsman to

be aware of its explanation that reserve funds included

tithing funds. 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. He

also had extensive experience running and owning

businesses so was presumably familiar with investment

concepts. Those factors would have given the Church good

reason to think that Huntsman would understand the

meaning of “earnings of invested reserve funds.”

In sum, on this record, no reasonable juror could

conclude that the Church made a “knowingly false

representation of fact” to Huntsman about the source of

funds for the City Creek project. Orient Handel, 237 Cal.

Rptr. at 672.

B.

Huntsman’s claim with respect to the $600 million

allegedly transferred to Beneficial Life also fails. Huntsman

does not identify any specific statements made by the

Church about the source of funds for Beneficial Life.

Instead, he points only to “Sunday School manuals” and

“conference addresses” that generally spoke about how

18 HUNTSMAN V. CORPORATION OF THE PRESIDENT

tithing funds were used, as well as the 2012 statement in the

Salt Lake Tribune that “McMullin said not one penny of

tithing goes to the Church’s for-profit endeavors.” Because

the record contains no representations by the Church about

Beneficial Life in particular, it does not support a claim of

fraudulent misrepresentation.

IV.

Finally, the church autonomy doctrine has no bearing

here.6 That doctrine protects First Amendment values by

prohibiting courts from resolving “controversies over

religious doctrine and practice.” Presbyterian Church in

U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian

Church, 393 U.S. 440, 449 (1969). Because nothing in our

analysis of Huntsman’s fraud claims delves into matters of

Church doctrine or policy, our decision in this case does not

run afoul of the church autonomy doctrine.

V.

For the foregoing reasons, we AFFIRM the district

court’s order granting summary judgment to the Church.

6

Throughout this appeal, the Church has maintained the position that

this Court can, and should, hold only that the fraud claim fails to state a

claim on the merits.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 19

BRESS, Circuit Judge, with whom M. SMITH and

NGUYEN, Circuit Judges, join, and with whom

VANDYKE, Circuit Judge, joins except as to footnotes 1

and 2, concurring in the judgment:

A prominent disaffected member of the Church of Jesus

Christ of Latter-day Saints is suing the Church seeking a

refund of religiously commanded tithes because the

Church’s leader made purported fraudulent

misrepresentations during a religious address to the Church.

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.

Constitutional protections for religious freedom provide

the core principles that drive the inescapable outcome in this

case. “The First Amendment protects the right of religious

institutions ‘to decide for themselves, free from state

interference, matters of church government as well as those

of faith and doctrine.’” Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732, 736 (2020) (quoting Kedroff

v. Saint Nicholas Cathedral of Russian Orthodox Church in

N. Am., 344 U.S. 94, 116 (1952)). Courts therefore cannot

resolve disagreements over church teachings and

governance, which would pose grave threats to the

autonomy of religious organizations. Yet governmental

intrusion on religion is precisely what plaintiff’s suit would

require, if it were to go any further.

20 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Although plaintiff’s claims can be rejected even as he

styles them, which is the approach the majority takes, we

should not indulge in the illusion that this is merely a secular

lawsuit about civil fraud. Under the First Amendment, the

plaintiff’s challenge to the Church’s understanding of tithing

is not susceptible to resolution in a court of law, lest the

judiciary wrest control from religious authorities over

matters of theological concern. It would have been

straightforward and preferable for the court to recognize that

plaintiff’s unprecedented theory encounters overwhelming

First Amendment impediments. 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.

I

A more complete portrait of this lawsuit than the

majority opinion offers helps to show how this case is on a

collision course with the First Amendment. Plaintiff James

Huntsman was, for many years, a devout and prominent

member of the Church of Jesus Christ of Latter-day Saints.

After decades of Church membership and service, Huntsman

decided to leave the Church. He did so because, in his

words, he had become “disillusioned with the Church’s

doctrines (including its support of polygamy and its open

disdain for members of the LGBTQ community).”

While a member of the Church, Huntsman participated

in the practice of tithing. For members of the Church, tithing

is a religious commandment and a central obligation of the

faith. As they understand it, tithing is an act mandated by

God, consistent with an interpretation of the Old Testament

(Malachi 3:10). The requirement of tithing was revealed

through the prophet Joseph Smith in Missouri in 1838 and

HUNTSMAN V. CORPORATION OF THE PRESIDENT 21

recorded in the Church’s Doctrine and Covenants, a part of

the Church’s canon of scripture. That year, the Lord marked

“the beginning of the tithing of my people,” directing

adherents to give the Church one-tenth of their income

annually and decreeing that “this shall be a standing law unto

them forever.” Doctrine & Covenants 119:3–4. According

to Smith’s revelation, the Saints “shall observe this law, or

they shall not be found worthy to abide among you.”

Doctrine & Covenants 119:5.

The Church’s scripture commits the disposition of tithes

to a “council” composed of the Church’s President and

senior leaders who act according to the Lord’s “own voice.”

Doctrine & Covenants 120:1. The President of the Church,

who at relevant times of this case was Gordon B. Hinckley,

is regarded within the Church as “God’s prophet on the earth

today[,] . . . the only person on the earth who receives

revelation to guide the entire Church.” Church of Jesus

Christ of Latter-day Saints, The Organization of the Church

of Jesus Christ, Oct. 2023, http://tinyurl.com/mr52srd3. As

a prophet, the President “make[s] known God’s will and true

character,” and the President’s “teachings reflect the will of

the Lord.” Church of Jesus Christ of Latter-day Saints,

Prophets, http://tinyurl.com/494af6td.

The Church places tithed funds into its reserves. The

claimed controversy in this case centers on the use of

earnings on these reserve funds in connection with one of the

Church’s commercial real estate projects in Salt Lake City,

known as the “City Creek project.” In 2003, the Church

announced that it would purchase a shopping mall and

commercial buildings near its downtown Salt Lake City

Temple, the Church’s physical and spiritual headquarters.

The nearby commercial establishments were situated on

historic Church land that had been used for Church-run

22 HUNTSMAN V. CORPORATION OF THE PRESIDENT

enterprises since the Church relocated to Utah in the mid-

1800s.

Church leaders viewed the project as central to the

Church’s future and objectives. It was necessary to reinvest

in these properties, President Hinckley told Church members

at a religious gathering, because “[w]e feel we have a

compelling responsibility to protect the environment of the

Salt Lake Temple.” Geared toward “revitaliz[ing] this area”

around the Church’s sacred Temple, the Church explains

that the expenditure of Church funds for the City Creek

project was consistent with the Church’s religious mission.

There is no suggestion that the project involved self-dealing

on the part of Church leaders.

The purported dispute in this case concerns Huntsman’s

allegation that senior Church leaders lied to congregants

about whether tithed funds would be used for the City Creek

project. The key statement in question is from an address

that President Hinckley gave at the Church’s April 2003

General Conference. These conferences are a “semi-annual

event consisting of worship services and messages from

Church leaders broadcast to the worldwide Church.” In his

address, and in what was effectively both a sermon and a

general update on the state of the Church, President Hinckley

offered “heaven’s richest blessings” on Church members,

exhorting them to follow in the Gospel of Christ and to

“incorporate it in our lives.” “The gospel of Jesus Christ is

the way of peace,” President Hinckley told fellow members

of his faith, as he urged them to continue their missionary

work, to live within their means, and to guide Church youth

as they grow into adults.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 23

During his address, and touching upon the City Creek

project that is the subject of this lawsuit, President Hinckley

also said the following:

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 invested reserve funds,

will accommodate this program.

In this lawsuit, Huntsman alleges that this statement by

the prophet of the Church, along with other similar

statements by Church leaders and in official Church

publications, misled him about whether “tithing funds”

would be used for the City Creek project. According to

Huntsman, he would not have paid tithing if he had known

that tithed funds were being put toward that purpose. In

Huntsman’s view, “tithing funds” includes both the principal

and earnings on tithes, and he believed neither would be

used to finance City Creek. There is no dispute that only

earnings on invested tithed funds were used to finance the

project; the principal on the tithed funds was not used.

Nevertheless, Huntsman filed this lawsuit in 2021, seeking

to recover $5,000,000 in past tithings, as well as punitive

damages.

Huntsman’s complaint lays bare his broad disagreement

with the direction of the Church. It opens with a quote from

Church prophet Brigham Young, claiming that had the

Church “heeded these profound words,” Huntsman would

24 HUNTSMAN V. CORPORATION OF THE PRESIDENT

not have filed his lawsuit. The complaint then goes on to

express Huntsman’s “[h]ope[]” that “this lawsuit will put an

end to the LDS Corporation’s lies and deceit once and for all

so that the Church can refocus its attention and efforts on

following the path of righteousness and honesty paved by its

former leaders.” The complaint further promises that if

Huntsman prevails, “[h]e will then use the recovered funds

to benefit organizations and communities whose members

have been marginalized by the Church’s teachings and

doctrines, including by donating to charities supporting

LGBTQ, African-American, and women’s rights.”

As the Church has noted in its briefing, Huntsman has

also used his lawsuit to criticize the Church in the media.

See, e.g., Washington Post, He was Mormon royalty. Now

his lawsuit against the church is a rallying cry, Sept. 9, 2023.

For example, in one interview, and in response to the

question of what was “at stake in your lawsuit, beyond the

tithing you’re seeking to recoup,” Huntsman offered that he

“hope[d] the LDS Church will finally get serious about

deploying its massive billions of dollars to help society

instead of, when asked about its wealth management

strategy, using meaningless answers such as saving for a

rainy day or preparing for the return of Jesus.” Salt Lake

City Tribune, James Huntsman on the LDS Church: Why he

left it, sued it, and what he hopes to change in it, Oct. 29,

2023.

II

A

It is possible to resolve this case as the majority does, by

taking Huntsman’s allegations at face value and finding that

on their surface, President Hinckley did not say that earnings

on tithed funds would not be used for the City Creek project.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 25

President Hinckley, in other words, did not say what

Huntsman says he said. As the majority therefore correctly

concludes, “Huntsman has not presented evidence that the

Church did anything other than what it said it would do.”

Every judge on this en banc court to reach the question

concludes the same, as did the district court.

But the majority’s lawyerly comparison of President

Hinckley’s statements with other Church comments and

financial documents should not obscure a more fundamental

point of constitutional principle: that the First Amendment’s

protections for religious organizations would have never

permitted Huntsman to prevail. Had the case gone further,

it would have required the courts to resolve a religious

disagreement, a transparent fight about the current course of

the Church masquerading as a civil lawsuit. The First

Amendment would clearly prohibit this. Indeed, it is the

First Amendment’s protections that most properly frame the

central and unavoidable problem with this case.

As I set forth above, “[t]he First Amendment protects the

right of religious institutions ‘to decide for themselves, free

from state interference, matters of church government as

well as those of faith and doctrine.’” Our Lady of Guadalupe

Sch., 591 U.S. at 736 (quoting Kedroff, 344 U.S. at 116).

The corollary to this is that courts must respect religious

organizations’ “independence in matters of faith and

doctrine and in closely linked matters of internal

government.” Id. at 747. This is known as the church

autonomy doctrine, or, alternatively, the doctrine of

ecclesiastical abstention. These doctrines reflect a basic

American truth: “[T]he Religion Clauses protect the right of

churches and other religious institutions to decide matters ‘of

faith and doctrine’ without government intrusion.” Id. at 746

(quoting Hosanna-Tabor Evangelical Lutheran Church and

26 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Sch. v. E.E.O.C., 565 U.S. 171, 186 (2012)). That includes

intrusion by the courts.

This doctrine is longstanding, a logically necessary

feature of the Constitution’s protections for religious

freedom. As the Supreme Court explained over 150 years

ago, courts may not decide a matter that is “ecclesiastical in

its character.” Watson v. Jones, 80 U.S. 679, 733 (1871); see

also, e.g., Serbian E. Orthodox Diocese v. Milivojevich, 426

U.S. 696, 713–14 (1976) (courts may not resolve “a matter

which concerns theological controversy” (internal

quotations omitted)). The reasons are self-evident, grounded

in the proper role of the courts and the vital religious liberty

protections that the First Amendment affords. There is a

“substantial danger” of infringing on religious freedom if

courts “become entangled in essentially religious

controversies.” Milivojevich, 426 U.S. at 709. And “First

Amendment values are plainly jeopardized when . . .

litigation is made to turn on the resolution by civil courts of

controversies over religious doctrine and practice.”

Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull

Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969); see

also, e.g., Kedroff, 344 U.S. at 114 (explaining that court

involvement in church religious determinations “would lead

to the total subversion of such religious bodies” (internal

quotations omitted)). Evaluating questions of religious

doctrine and practice far exceeds our charge, and intruding

on those matters would impose severe harm on the very First

Amendment freedoms we are otherwise entrusted with

protecting.1

1

I disagree with Judge Bumatay’s conclusion that the church autonomy

doctrine is in some sense “jurisdictional,” so that we would always have

HUNTSMAN V. CORPORATION OF THE PRESIDENT 27

B

In this case, resolving Huntsman’s fraud claim in his

favor would violate core First Amendment principles. It

would do so in two main ways.

1

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.

In the Church, the duty to tithe is a religious

commandment from God. Doctrine & Covenants 119:3–4.

What that duty embodies, and what the concept of “tithing”

means—including whether “tithing funds” includes earnings

on tithed funds—are questions of a religious dimension.

These matters are for the Church to decide on its own, within

the decision-making hierarchy it establishes. “It is not

within ‘the judicial function and judicial competence’ . . . to

determine” whether Huntsman or the Church “has the proper

to resolve that issue first before proceeding further. The quotes from

historical sources that Judge Bumatay provides do not support his thesis;

they do not speak to the issue of judicial order of operations. The

Supreme Court has fairly clearly said these types of issues are not

jurisdictional, see Hosanna-Tabor, 565 U.S. at 195 n.4, as Judge

Bumatay concedes. And the Church itself disagrees with Judge

Bumatay’s position, arguing that one could narrowly reject Huntsman’s

claims simply by concluding that he has misstated what President

Hinckley said. I do not think it does any violence to church autonomy

for a court to recognize, for example, that a claim against a religious

organization is frivolous on its face. But even if we are not required to

reach the church autonomy doctrine, the First Amendment lies at the

heart of this case, as the Church has consistently argued. We should not

ignore the church autonomy doctrine in explaining why a suit like this

not only does, but must, fail.

28 HUNTSMAN V. CORPORATION OF THE PRESIDENT

interpretation of” Church practice and belief. United States

v. Lee, 455 U.S. 252, 257 (1982) (quoting Thomas v. Review

Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716 (1981)).

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 the earth” whose religious

pronouncements are authoritative. Doctrine & Covenants

21:5. As President Hinckley described it at an earlier

General Conference, “[t]ithing is the Lord’s law of finance.”

Vindicating Huntsman’s position would effectively take

away from the Church the authority to articulate, through its

divinely inspired spiritual leader, the contours of holy funds,

a matter of core religious significance. The district court

below thus had it right: “determining whether the term

‘tithing funds’ encompasses earnings on invested tithing

funds would require an analysis of Church doctrines and

teachings.” That is “a religious dispute the resolution of

which . . . is for ecclesiastical and not civil tribunals.”

Milivojevich, 426 U.S. at 709.

Huntsman cannot override the First Amendment’s

protections by abstracting the Church’s statements about

tithing from their religious context. President Hinckley was

not addressing investors in a company. He was not required

to speak through 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.” United States v. Ballard, 322 U.S. 78, 87 (1944).

The issues of religious teaching and practice at issue here are

HUNTSMAN V. CORPORATION OF THE PRESIDENT 29

not simply secular matters that a court could resolve against

the Church.

It is therefore irrelevant that, in stylized form, the

elements of a fraud claim can have a secular orientation. It

is likewise irrelevant that terms like “income” and “reserved

funds” can have secular meanings. The question here is not

whether it is possible to recast Huntsman’s argument in

secular terms, without the religious trappings. The Supreme

Court has confronted analogous situations in which disputes

involving religious organizations could have been

characterized in secular terms, but the Court held that the

Religion Clauses and church autonomy principles prevented

judicial resolution. See, e.g., Milivojevich, 426 U.S. at 709–

10 (property disputes); Kedroff, 344 U.S. at 119 (corporate

structure dispute); Presbyterian Church, 393 U.S. at 442–47

(trespass dispute).

The most notable example in recent years concerns

employment discrimination suits involving employees

performing certain religious duties, an area known as the

“ministerial exception.” See Our Lady of Guadalupe Sch.,

591 U.S. at 737; Hosanna-Tabor, 565 U.S. at 188. In

Hosanna-Tabor, the Supreme Court explained that although

“[t]he interest of society in the enforcement of employment

discrimination statutes is undoubtedly important,” “so too is

the interest of religious groups” in deciding how to “carry

out their mission.” 565 U.S. at 196.

So too here. That a litigant invokes a state-law

prohibition on fraud, even though “a valid and neutral law of

general applicability,” id. at 190, does not sideline the church

autonomy doctrine. Religious disputes restated in the

elements of a fraud claim do not lose their inevitably

religious character, just as employment disputes involving

30 HUNTSMAN V. CORPORATION OF THE PRESIDENT

persons with religious duties cannot be regarded as purely

secular, either.

In this case in particular, it is startling to think that courts

and juries would be examining a religious sermon for

“accuracy,” much less concluding that the leader of a

worldwide religion intended to defraud his congregants on

religious matters that the Church’s canonical texts commit

to his rightful authority. Nothing says “entanglement with

religion” more than Huntsman’s apparent position that the

head of a religious faith should have spoken with greater

precision about inherently religious topics, lest the Church

be found liable for fraud.

How could this lawsuit proceed further without putting

the Church of Jesus Christ of Latter-day Saints on trial for

its own beliefs? To prove a fraud claim, a plaintiff must

show not only that the defendant made a misrepresentation,

but that the defendant did so with knowledge of its falsity

and an intent to defraud. See, e.g., Small v. Fritz Cos., 65

P.3d 1255, 1258 (Cal. 2003). The Church’s ultimate defense

to Huntsman’s claim is that his subjective understanding of

tithing is simply wrong as a matter of Church doctrine and

practice, and that President Hinckley did not intend to

defraud when he spoke as God’s prophet on Earth. But the

prospect of Church leaders being cross-examined on matters

of religious understanding is deeply unsettling. And any

effort to limit the Church to “secular” defenses would

implicitly deem illegitimate the very system of beliefs and

governance that define the Church as a religious institution

and that lie at the heart of the First Amendment’s protections

for religion.

It is understandable that even members of the same

religion may have different views on religious practices and

HUNTSMAN V. CORPORATION OF THE PRESIDENT 31

requirements. But it is up to members of the Church to work

through these issues among themselves and through their

own processes. Religious disagreements are to be worked

out within the faith. See Watson, 80 U.S. at 729 (“It is of the

essence of these religious unions, and of their right to

establish tribunals for the decision of questions arising

among themselves, that those decisions should be binding in

all cases of ecclesiastical cognizance, subject only to such

appeals as the organism itself provides for.”). Indeed, we

have reasoned that “[c]ourts generally do not scrutinize

closely the relationship among members (or former

members) of a church.” Paul v. Watchtower Bible & Tract

Soc. of N.Y., Inc., 819 F.2d 875, 883 (9th Cir. 1987).

In treating “tithing” in the Church of Jesus Christ of

Latter-day Saints as an ambiguous concept that could be

given meaning through law, facts, and evidence, Huntsman’s

lawsuit presupposes that religious authorities could be

subject to judicial review on core questions of religious

belief. That would be a serious affront to the church

autonomy doctrine and the First Amendment values it

represents.2

2

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. Although courts may

not evaluate the validity of religious beliefs—a problem that is more

immediate in cases like this involving suits by disaffected church

members against a church—courts do not violate the First Amendment

in assessing whether asserted beliefs are sincerely held. See United

States v. Rasheed, 663 F.2d 843, 847–49 (9th Cir. 1981) (explaining, in

the context of a fraud prosecution of religious leaders for what “was

essentially a Ponzi scheme,” that “the sincerity of the [defendants]

claiming to hold such beliefs can be examined”); see also United States

32 HUNTSMAN V. CORPORATION OF THE PRESIDENT

2

Second, for Huntsman to prevail, a court or jury would

further need to agree that he reasonably relied on the

Church’s alleged misrepresentations. But that too would

embroil the courts in a sectarian dispute.

To prevail on his fraud claim, Huntsman would have to

prove justifiable reliance. See Small, 65 P.3d at 1258. To

make this showing, “plaintiffs must show (1) that they

actually relied on the defendant’s misrepresentations, and (2)

that they were reasonable in doing so.” OMC Principal

Opportunities Fund, L.P. v. CIBC World Mkts. Corp., 68

Cal. Rptr. 3d 828, 855 (Cal. Ct. App. 2007). Reasonable

reliance, in turn, requires demonstrating that “the matter was

material in the sense that a reasonable person would find it

important in determining how he or she would act.”

Hoffman v. 162 N. Wolfe LLC, 175 Cal. Rptr. 3d 820, 833

(Cal. Ct. App. 2014).

Huntsman claims that he believed, based on President

Hinkley’s April 2003 General Conference remarks and other

Church statements, that no tithing principal or earnings

would be used to finance City Creek, and that Huntsman

would not have made tithes if he had known otherwise. But

to conclude that Huntsman’s asserted reliance was

justifiable, we would need to decide that a reasonable

member of the Church of Jesus Christ of Latter-day Saints

would pay tithing based on the Church’s representations

v. Seeger, 380 U.S. 163, 184–85 (1965) (explaining, in the context of

draft exemptions, that a court’s “task is to decide whether the beliefs

professed by a registrant are sincerely held”); Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 525 (2022); Cutter v. Wilkinson, 544 U.S. 709, 725

n.13 (2005). Of course, in this case there is no suggestion that the City

Creek project involves self-dealing on the part of Church leaders.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 33

about its spending decisions. That inquiry would quickly

devolve into questions about religious doctrine. The Church

explains that the religious obligation to tithe exists

irrespective of how the funds are used. See Amicus Br. of J.

Reuben Clark Soc’y, at 17–21; The Church of Jesus Christ

of Latter-day Saints, Tithing and Charitable Donations,

http://tinyurl.com/bddan639 (“For Latter-day Saints, tithing

is a natural and integrated aspect of their religious belief and

practice . . . Latter-day Saints make charitable donations

because they believe in fulfilling God’s commandment to

tithe and give to the poor. All funds given to the Church by

its members are considered sacred.”). Huntsman himself

agreed in this litigation that “[w]hen [he] made tithing

contributions, he believed he was obeying one of God’s

commandments and would receive blessings from God for

doing so.”

But because Huntsman now argues that he made tithing

contributions conditioned on certain understandings about

how tithed funds would be used, to rule in his favor a

factfinder would need to credit his position notwithstanding

its evident contradiction with Church teachings. This would

leave courts and juries making determinations about why a

reasonable member of the Church of Jesus Christ of Latter-

day Saints would or should tithe. These are inherently

religious questions. They would require courts “to

determine matters at the very core of religion—the

interpretation of particular church doctrines and the

importance of those doctrines to the religion. Plainly, the

First Amendment forbids civil courts from playing such a

role.” Presbyterian Church, 393 U.S. at 450.

34 HUNTSMAN V. CORPORATION OF THE PRESIDENT

* * *

The plaintiff in this case is free to criticize his former

Church and advocate for Church reforms. But he cannot ask

the judiciary to intrude on the Church’s own authority over

core matters of faith and doctrine. That is the lesson of this

lawsuit. We as courts are not here to emcee religious

disputes, much less decide them. The First Amendment

restricts our role as it protects religious organizations from

lawsuits such as this.

BUMATAY, Circuit Judge, concurring:

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—

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. Or we can

decide this case based on the church autonomy doctrine,

which precludes courts from reaching religious questions,

and deny the fraud claims.

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. So we can’t 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’s a threshold

structural bar that must be reckoned with. Otherwise, we

violate the restraints the Constitution places on our power.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 35

In this case, James Huntsman alleges that the Church

committed fraud in inducing its members to tithe. He claims

he only gave millions of dollars in tithes to the Church

because it assured the faithful that the money donated would

not be spent on a specific development project. In truth, he

says, the Church used tithes to fund the development project.

But resolving his claims requires swimming in a current of

religious affairs. What is a “tithe”? Who can speak for the

Church on the meaning of “tithes”? What are Church

members’ obligations to offer “tithes”? These are questions

that only ecclesiastical authorities—not federal courts—can

decide.

Because Huntsman’s claims involve court interference

in matters of religious truth, the church autonomy doctrine

bars reaching their merits. The doctrine is born of the First

Amendment’s Religion Clauses. “[T]he Religion Clauses

protect the right of churches and other religious institutions

to decide matters ‘of faith and doctrine’ without government

intrusion.” Our Lady of Guadalupe Sch. v. Morrissey-Berru,

591 U.S. 732, 746 (2020) (simplified). Through the Free

Exercise Clause, religious groups have the right “to shape

[their] own faith and mission[.]” Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S.

171, 188 (2012). The Establishment Clause, on the other

hand, “prohibits government involvement in . . .

ecclesiastical decisions.” Id. at 189. So government

interference in religious matters both “violate[s] the free

exercise of religion” and “constitute[s] one of the central

attributes of an establishment of religion.” Our Lady of

Guadalupe, 591 U.S. at 746. In other words, the

Constitution leaves matters of faith exclusively to the people

and their Creator.

36 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Together then, the Religion Clauses create a structural

restraint on the government’s power to decide religious

questions. The doctrine’s structural nature is most clear

through its Establishment Clause foundation. The

Establishment Clause provides that “no law” may establish

religion. As an original matter, the Clause denied the federal

government authority to operate in the religious sphere. That

means no court can decide internal religious questions. And

we are not free to ignore the doctrine. Although not strictly

jurisdictional in the technical sense, the church autonomy

doctrine operates as a limit on judicial authority itself. Given

this limitation, the church autonomy doctrine cannot be

disposed of at the court’s choosing and must be addressed as

a threshold matter. So the majority errs in skirting the

doctrine and reaching the merits, and the main concurrence

errs in endorsing the majority’s merits ruling as a simple

alternative to its church autonomy analysis.

I thus concur in the judgment only.

I.

To understand the church autonomy doctrine’s structural

nature, we look to the Establishment Clause’s text and

historical understanding. See N.Y. State Rifle & Pistol Ass’n,

Inc. v. Bruen, 597 U.S. 1, 19–22 (2022) (looking at text,

history and tradition to determine bounds of Second

Amendment); see also Randy E. Barnett, Lawrence B.

Solum, Originalism After Dobbs, Bruen, and Kennedy: The

Role of History and Tradition, 118 Nw. U. L. Rev. 433, 439–

42 (2023). And in interpreting the Clause today, we must

read it “in light of and in the direction of the constitutional

text and constitutional history.” United States v. Hansen, 40

F.4th 1049, 1072 (9th Cir. 2022) (Bumatay, J., dissenting

from denial of rehearing en banc) (simplified).

HUNTSMAN V. CORPORATION OF THE PRESIDENT 37

A.

Constitutional Text

As always, we start with the text. The Establishment

Clause declares that “Congress shall make no law respecting

an establishment of religion.” U.S. Const. amend. I. The

first part of the phrase—“Congress shall make no law”—

“‘precisely tracked and inverted the exact wording’ of the

Necessary and Proper Clause” that “Congress shall have

power . . . to make all laws which shall be necessary and

proper[.]” Town of Greece, N.Y. v. Galloway, 572 U.S. 565,

604–05 (2014) (Thomas, J., concurring in part) (quoting A.

Amar, The Bill of Rights 39 (1998)). The design was

intentional. The amendment was required, according to

James Madison, to assuage Anti-Federalist concerns that the

Necessary and Proper Clause “enabled [Congress] to make

laws of such a nature as might . . . establish a national

religion.” Debates on the Amendments to the Constitution

(Aug. 15, 1789), 1 Annals of Congress 758 (1834).

The “shall make no law” language denies the federal

government power over a specific subject matter—anything

“respecting an establishment of religion.” See Vincent

Phillip Munoz, Religious Liberty and the American

Founding 168 (2022). By doing so, the Establishment

Clause differed from any other amendment. “It reenforced

the strategy of limiting governmental power by explicitly

declaring that Congress . . . lacked power over particular

subjects” and thus “achiev[ed] that purpose [by] adopt[ing]

an express limitation on national jurisdiction.” Steven D.

Smith, The Jurisdictional Establishment Clause: A

Reappraisal, 81 Notre Dame L. Rev. 1843, 1850–51 (2006).

The term “respecting” also suggests the structural nature

of the Establishment Clause. “Respecting” meant the same

38 HUNTSMAN V. CORPORATION OF THE PRESIDENT

thing then as it does now: “to look at, regard, or consider”;

“to regard with deference, esteem, or honor”; or “with

reference to, [or] with regard to.” Munoz, Religious Liberty

and the American Founding 168 (collecting

contemporaneous dictionary sources). Neither the House

nor the Senate included the word in their proposed drafts.

No state constitution included it either. “Respecting”

appeared for the first time in the adopted text at the House-

Senate Conference Committee. Id. at 167–68. So the

inclusion of the term is “particularly revealing” of “the

original meaning of the adopted text.” Id. at 168.

Before the House-Senate Conference Committee, the

House text read “Congress shall make no law establishing

Religion” and the Senate text included “Congress shall make

no law establishing articles of faith or a mode of worship.”

Id. at 167. While we lack records confirming why the

Committee inserted “respecting an establishment,” we do

know a primary concern in the House was whether Congress

could regulate state establishments under its implied powers.

Id. at 170–73. The plain import of the change—from “no

law establishing religion” to “no law respecting an

establishment of religion”—broadens the restriction’s scope

to cover protections for state establishments. Thus, through

“respecting,” the original Establishment Clause operated in

two ways: (1) it denied the federal government power to

establish a national religion, and (2) it prohibited the federal

government from interfering with state establishments. See

Smith, 81 Notre Dame L. Rev. at 1870–71.

The Constitution also uses “respecting” elsewhere to

connote structural limitations. Look at Article 4, Section 3:

“The Congress shall have Power to dispose of and make all

needful Rules and Regulations respecting the Territory or

other Property belonging to the United States.” Munoz,

HUNTSMAN V. CORPORATION OF THE PRESIDENT 39

Religious Liberty and the American Founding 169 (quoting

U.S. Const. art. IV, § 3, cl. 2) (emphasis added). While

Article 4, Section 3 grants Congress power over certain

territories, the Establishment Clause “would seem to do the

opposite: to deny Congress” authority to legislate. Id. These

are the only two uses of “respecting” in the Constitution.

The contrast with the Free Exercise Clause also reveals

a structural purpose. Unlike the individual-rights language

of “prohibiting” in the Free Exercise Clause, the

“respecting” language suggests a zone of government-free

activity. While both Religion Clauses share the opening

“Congress shall make no law,” the two provisions diverge

from there. The Establishment Clause restricts Congress

from operating in a certain area—anything related to an

“establishment of religion.” On the other hand, the Free

Exercise Clause protects an individual right—one’s “free

exercise” of religion. Put differently, one clause “polic[es]

the boundary between civil authorities and organized

religion,” and the other protects a moral right held by all.

Carl H. Esbeck, Dissent and Disestablishment: The Church-

State Settlement in the Early American Republic, 2004 BYU

L. Rev. 1385, 1388–89 (2004). So properly understood, the

Establishment Clause negates federal power over a subject

matter, it does not recognize an individual right. Smith, 81

Notre Dame L. Rev. at 1850–51.

So what is the subject matter covered by the

“establishment of religion”? The words were not defined

during the drafting process. See Munoz, Religious Liberty

and the American Founding 176 (“[T]he records pertaining

to the drafting of the Establishment Clause in the First

Congress do not furnish a clear answer” to the substantive

question.). But we are not left in the dark. Looking at

history, there are “telling traits” of what constituted an

40 HUNTSMAN V. CORPORATION OF THE PRESIDENT

establishment of religion. Shurtleff v. City of Bos.,

Massachusetts, 596 U.S. 243, 285–86 (2022) (Gorsuch, J.,

concurring). We turn there next.

B.

Early Origins of Dual Authorities

In both England and the colonies, an “establishment”

was understood to be “the promotion and inculcation of a

common set of beliefs through governmental authority.”

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I: Establishment of

Religion, 44 Wm. & Mary L. Rev. 2105, 2131 (2003).

Establishments took on different forms at the two ends of the

Atlantic, but each included certain traits.

First, the government exerted control over the

doctrine and personnel of the established

church. Second, the government mandated

attendance in the established church and

punished people for failing to participate.

Third, the government punished dissenting

churches and individuals for their religious

exercise. Fourth, the government restricted

political participation by dissenters. Fifth, the

government provided financial support for

the established church, often in a way that

preferred the established denomination over

other churches. And sixth, the government

used the established church to carry out

certain civil functions, often by giving the

HUNTSMAN V. CORPORATION OF THE PRESIDENT 41

established church a monopoly over a

specific function.

Shurtleff, 596 U.S. at 285–86 (2022) (Gorsuch, J.,

concurring) (citing McConnell, 44 Wm. & Mary L. Rev. at

2131–81). At bottom, each of those six historical traits

required “[t]he government [to] decid[e] religious truth.”

Christopher C. Lund, Favoritism, Coercion, and the

Establishment Clause, 122 Mich. L. Rev. 1303, 1307 (2024).

Government deciding religious truth is nothing new.

Civil authorities have sought to control religion by deciding

such matters since antiquity. In the West, the church

responded at each turn with a structural argument—

religious matters are exclusively committed to the Almighty.

Put differently, the church and state are separate sovereigns

(or dual authorities) that each hold exclusive jurisdiction

over certain subject matters. Esbeck, 2004 BYU L. Rev. at

1589. Henry VIII and Parliament rejected that ancient

tradition when they established the Church of England. But

American patriots reclaimed it through religious dissent, a

Revolution, and the Second Great Awakening. Thus, it is

that tradition undergirding the Establishment Clause’s

prohibition.

The English establishment upended an ancient practice

recognizing the dual authorities of church and state. In

Christianity, that practice flows directly from Scripture:

“Jesus said to them, ‘Render to Caesar the things that are

Caesar’s, and to God the things that are God’s.’ And they

marveled at him.” Mark 12:17 (ESV). At least since the 4th

century, the church-state relationship in the West

“presume[d] a dual-authority pattern” where “there [we]re

subject matters over which the state ha[d] sovereign power

42 HUNTSMAN V. CORPORATION OF THE PRESIDENT

and subject matters over which the church ha[d] exclusive

authority.” Esbeck, 2004 BYU L. Rev. at 1589.

The first conflict drawing the line between church and

state began with the Edict of Milan in 313 A.D., when the

Roman Empire legalized Christianity. Id. at 1391. Later,

Emperor Theodosius I established Christianity as the official

religion throughout the Empire. Id.

But the church did not consent to the Empire’s claim

over ecclesiastical matters. Evidencing this dissent, the

Bishop of Cordova wrote to Emperor Constantine: “Do not

interfere in matters ecclesiastical, nor give us orders on

such questions, but learn about them from us. For into your

hands God has put the kingdom; the affairs of his Church

he has committed to us.” Id. (quoting 350 A.D. letter from

Hosius, Bishop of Cordova, to Emperor Constantine). So

the response to the Empire’s growing desire to establish

religion was structural—“We are not permitted to exercise

an earthly rule; and you, Sire, are not authorized to burn

incense.” Id.; see also id. at 1391–92 (“Two there are,

august Emperor, by which this world is ruled on title of

original and sovereign right—the consecrated authority of

the priesthood and the royal power.”) (quoting 494 A.D.

letter from Pope Gelasius I to Byzantine Emperor

Anastasius I).

That structural rationale persisted throughout the Middle

Ages. See Roscoe Pound, A Comparison of Ideals of Law,

47 Harv. L. Rev. 1, 6 (1933) (“In the politics and law of the

Middle Ages the distinction between the spiritual and the

temporal, between the jurisdiction of religiously organized

Christendom and the jurisdiction of the temporal

sovereign . . . was fundamental.”); see also Carl H. Esbeck,

HUNTSMAN V. CORPORATION OF THE PRESIDENT 43

The Establishment Clause as Structural Restraint on

Government Power, 84 Iowa L. Rev. 1, 50 n.206 (1998).

Take the Investiture Conflict of the 11th century. It

typified the battle for church independence. There, the

Papacy fought against the Holy Roman Empire for the

ability to appoint its own bishops—a power then vested in

the emperor. The conflict was “jurisdictional” as the church

sought “liberation of the clergy from imperial, royal, and

feudal domination and their unification under papal

authority.” Gregory A. Kalscheur, S.J., Civil Procedure and

the Establishment Clause: Exploring the Ministerial

Exception, Subject-Matter Jurisdiction, and the Freedom of

the Church, 17 Wm. & Mary Bill Rts. J. 43, 61 (2008)

(simplified). The church first championed “freedom of the

church” because it believed the Pope sovereign over such

appointments. See Charles J. Reid, Jr., The Spirit of the

Learned Laws, 1 Wash. U. Global Stud. L. Rev. 507, 529

(2002) (quoting the Dictatus Papae to show how the church

advocated for “papal sovereignty”); see also Richard W.

Garnett, “The Freedom of the Church”: (Towards) an

Exposition, Translation, and Defense, 21 J. Contemp. Legal

Issues 33 (2013) (drawing on the Investiture Conflict to

delineate the substantive content of libertas ecclesia—

“freedom of the church”).

Thus, in both ancient and medieval times, the church’s

basis for autonomy rested on structural grounds. Because

God committed authority over spiritual matters (like the

burning of incense or appointment of clergy) exclusively to

the church, the state lacked authority over such matters.

44 HUNTSMAN V. CORPORATION OF THE PRESIDENT

C.

English Establishment

In England, the government initially recognized church

independence. Church autonomy “was addressed in the very

first clause of Magna Carta[,]” in which King John “agreed

that ‘the English church shall be free, and shall have its rights

undiminished and its liberties unimpaired.’” Hosanna-

Tabor, 565 U.S. at 182 (quoting Magna Carta App. IV, p.

317, cl. 1 (J. Holt ed. 1965)). That’s because the Magna

Carta resulted from one sovereign—the church—checking

the absolutist powers of the other—the state. Esbeck, 2004

BYU L. Rev. at 1408 (chronicling events between Pope

Innocent III and King John leading to Magna Carta).

Although the promise of independence proved “more

theoretical than real,” the Roman Catholic Church of

England continued to enjoy some autonomy from the state.

Hosanna-Tabor, 565 U.S. at 182; see also Esbeck, 2004

BYU L. Rev. at 1405.

That all changed with the English Reformation. In 1534,

Henry VIII consolidated power as the head of the Church of

England and eliminated the sovereign distinction between

the Pope and the Crown. See McConnell, 44 Wm. & Mary

L. Rev. at 2112–13. While Henry’s desire for a male heir

prompted the religious split, the establishment persisted

because English leaders sought to quash any “divided

loyalty” to a “foreign prince” like the Pope. Esbeck, 2004

BYU L. Rev. at 1405.

The Church of England gained control through a

complex “web of legislation,” which installed it as the only

place for lawful public worship. McConnell, 44 Wm. &

Mary L. Rev. at 2111, 2113. First, Parliament enacted the

Act of Supremacy in 1534, which declared the English

HUNTSMAN V. CORPORATION OF THE PRESIDENT 45

monarch the head of the Church of England and granted the

state control over religious doctrine. Id. at 2112–13. Then,

Parliament created the Book of Common Prayer prescribing

the Church’s liturgy and worship. Id. at 2113. Other acts

prohibited non-members from holding certain offices and,

even worse, some targeted dissenting religions or sects with

punishments—penal or otherwise. Id. at 2113–14.

Through each of these acts, the state controlled religious

doctrine and personnel, mandated church attendance and

membership, punished dissenters, restricted political

participation, provided money to the established church, and

used the church to execute certain social functions. See id.

at 2131–81. In creating this establishment, the government

wasn’t concerned with religious truth. Instead, “[t]he

dominant purpose of the establishment was not to advance

religious truth, but to control and harness religion in service

of the state.” Id. at 2208 (emphasis added). That’s because

the English establishment molded religion for its own

purposes: to promote loyalty within its subjects and

perpetuate its reign. Id. at 2207–08.

That religious monopolization created waves of dissent.

See Esbeck, 2004 BYU L. Rev. at 1409–10 (detailing the

“contest between church and state” during this time as the

struggle between Henry VIII and Thomas More, the former

Chancellor executed for refusing to disavow papal

authority). Throughout the 16th and 17th centuries, it led

dissenting religious factions—like the Puritans—to flee

persecution and leave for the colonies. Id. at 1412. In time,

these dissenters would create their own conceptions of

establishment and church autonomy.

46 HUNTSMAN V. CORPORATION OF THE PRESIDENT

D.

American Establishment

From this history, the American colonies inherited two

conflicting views. For one, England exported its sentiment

for religious control to the colonies. But the Crown’s

religious persecution also pushed dissenters, like the

Puritans, to our shores. This mix resulted in established

religion “assum[ing] two principal forms” in America:

(1) “an exclusive Anglican establishment in the southern

states” and (2) “a localized Puritan establishment in the New

England states other than Rhode Island.” McConnell, 44

Wm. & Mary L. Rev. at 2115.

Take Virginia and Massachusetts as examples of each.

Establishments persisted in both forms. On the Anglican

side, Thomas Jefferson compiled 17 Virginian statutes

dating from 1661 that established the Church of England in

Virginia. Id. at 2111. Effectively, those Acts mirrored the

web of English statutes constructing establishment there. Id.

And not surprisingly, the Anglican establishment in Virginia

resembled that of Mother England, with Anglicans typically

professing allegiance to the Crown.

New England religious institutions didn’t install the

Church of England as the established church. Although

many “had the same essential elements” as Virginia, New

England institutions were more localized and “based

on . . . religious convictions.” Id. at 2121. Chief among

those religious convictions was the separation of church and

state stemming from the Calvinist doctrine of “two

kingdoms.” Id. at 2123. In time, Massachusetts became a

“multiple establishment”—“a system in which all residents

[we]re required to support, and perhaps to attend, religious

worship, but within certain limits [could] choose which

HUNTSMAN V. CORPORATION OF THE PRESIDENT 47

one.” Id. at 2124. Thus, the New England approach was

characterized as “the dissidence of dissent” against the

Crown. Id. (quoting Edmund Burke, Speech on Moving His

Resolutions for Conciliation with the Colonies (Mar. 22,

1774)).

The American Revolution shifted church-state relations

closer to the New England approach. The relationship

moved “toward a new and decidedly non-European

approach,” in which “material government support for

religion” was in “decline.” Esbeck, 2004 BYU L. Rev. at

1395. Instead, “[r]eligion became more personal and

emotional, less authoritarian, more decentralized,” and

opposed “[a] top-down rule by a professional class of

ecclesiastics” as “at odds with the growing American ethos

of liberty and individualism and a leveling of social classes.”

Id. at 1591. Calvinism and its belief in “two kingdoms”

provided the “seedbeds of support for the patriot cause,

supplying much of the emotional fervor as well as

intellectual justification for the fight.” McConnell, 44 Wm.

& Mary L. Rev. at 2123–24. In short, the American

conception of religious liberty “interwove[] strands of

Enlightenment and Protestant thought” to remove religious

authority from the power of the state. See Christopher C.

Lund, Church Autonomy in the United States, in Freedom of

Religion and Religious Pluralism 192, 194 (Md Jahid

Hossain Bhuiyan & Carla M. Zoethout, eds., 2023).

In that way, “our religious system ha[d] undergone a

revolution, if possible, more extraordinary than our political

one.” 2 John G. Shea, Life and Times of the Most Rev. John

Carroll, Bishop and First Archbishop of Baltimore, 1763-

1815 at 211 (1888) (quoting 1783 letter from Rev. Carroll to

Pope Pius VI). That revolution would later be described as

the Second Great Awakening.

48 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Several events confirm that the new American

government didn’t possess authority over religious matters.

In 1784, seven years before the Establishment Clause was

ratified, Congress disclaimed any “jurisdiction” over the

“spiritual” matter of appointing a Catholic Bishop to the

United States. Id. at 217 (“[T]he subject of his application

to doctor Franklin, being purely spiritual, it is without the

jurisdiction and powers of Congress, who have no authority

to permit or refuse it, these powers being reserved to the

several states individually.”). Because the matter was

“purely spiritual,” it fell beyond the “jurisdiction and powers

of Congress.”

James Madison, architect of the Bill of Rights, also

believed the federal government lacked authority over

religious matters. In his seminal Memorial and

Remonstrance Against Religious Assessments, Madison

based his criticism of a bill supporting Christian teachers on

structural concerns.

First, Madison recognized freedom of conscience as an

“unalienable right . . . because what is here a right towards

men, is a duty towards the Creator.” James Madison,

Memorial and Remonstrance Against Religious Assessments

(1785), reprinted in 5 The Founders’ Constitution 82 (Philip

B. Kurland & Ralph Lerner eds., 1987). So “[i]t is the duty

of every man to render to the Creator such homage and such

only as he believes to be acceptable to him.” Id. (alluding to

Mark 12:17). And that duty “both in order of time and in

degree of obligation” comes “precedent” to “claims of Civil

Society.” Id. Since each man owes his first allegiance to the

Creator, “Religion is wholly exempt from [Civil Society’s]

cognizance.” Id.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 49

Second, “[b]ecause Religion [is] exempt from the

authority of the Society at large,” Madison also believed that

it could not “be subject to [the authority] of the Legislative

Body.” Id. That’s because the “jurisdiction” of the

legislature “is both derivative and limited . . . with regard to

the constituents.” Id. So it must not “overleap the great

Barrier which defends the rights of the people” to practice

their religion. Id.

Third, Madison opposed the bill because it “implie[d]

either that the Civil Magistrate is a competent Judge of

Religious Truth; or that he may employ Religion as an

engine of Civil policy.” Id. at 83. Neither of which is true.

“The first is an arrogant pretension falsified by the

contradictory opinions of Rulers in all ages, and throughout

the world: the second an unhallowed perversion of the means

of salvation.” Id.

Lastly, Madison documented the harm historical

establishments have inflicted. “Religion both existed and

flourished, not only without the support of human laws, but

in spite of every opposition from them.” Id. That’s because

“a Religion not invented by human policy, must have pre-

existed and been supported, before it was established by

human policy.” Id. History has thus shown that

“ecclesiastical establishments, instead of maintaining the

purity and efficacy of Religion, have had a contrary

operation.” Id.

Madison’s view was symbolic of the period, but it wasn’t

new. Although he never mentions it, Madison took a stance

almost identical to that of theologian-politician Elisha

Williams decades earlier. In 1744, Williams published “The

Essential Rights and Liberties of Protestants” in response to

the Connecticut Act for Regulating Abuses and Correcting

50 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Disorders in Ecclesiastical Affairs. Esbeck, 2004 BYU L.

Rev. at 1421. Williams contended—like Madison—that

people have an inalienable right to decide religious questions

for themselves. Elisha Williams, The Essential Rights and

Liberties of Protestants: A Seasonable Plea for the Liberty

of Conscience and the Right of Private Judgment in Matters

of Religion Without Any Controul from Human Authority 8

(1744). As a corollary, Williams recognized “[t]hat the Civil

Authority hath no Power to make or ordain Articles of Faith,

Creeds, Forms of Worship, or Church Government,” because

that right “belongs to Christ the supream [sic] King and Head

of his Church.” Id. at 13. For civil society to address such

matters negates what “is already sufficiently done by Christ

in the sacred Scriptures.” Id. at 14. And civil authority has

no power to establish a religion because each person has a

“Duty, Privilege and Right to search the sacred Writings as

Christ has bid him, and know and judge for himself what the

Mind and Will of his only Lord and Master is in these

Matters.” Id. at 19.

So from Williams to Madison, we see that—by 1785—a

person’s duty to the Creator prohibited the federal

government from intruding into matters of religious truth.

E.

The First Amendment’s Ratification

Within this context, the First Congress confronted the

question of the federal government’s power over religion.

The original Constitution did not mention establishment.

But Anti-Federalists seized on Congress’s power under the

Necessary and Proper Clause to claim that the federal

government would not be limited by its enumerated powers

and could enact a national religion. Munoz, Religious

Liberty and the American Founding at 128–34 (reviewing

HUNTSMAN V. CORPORATION OF THE PRESIDENT 51

letters from Anti-Federalist essayist “The Federal Farmer”);

see also Debates on the Amendments to the Constitution

(Aug. 15, 1789), 1 Annals of Congress 758 (1834).

Federalists thought an “amendment was unnecessary”

because it was clear that “the national government lacked

jurisdiction over religion.” Munoz, Religious Liberty and

the American Founding at 166. So both Federalists and

Anti-Federalists agreed that the federal government didn’t

have authority over religion. Smith, 81 Notre Dame L. Rev.

at 1849 (“[S]upporters and opponents of the Constitution

alike—agreed from the outset that religion had been and

should continue to be a matter within the domain of the

states: it should not be transferred to the jurisdiction of the

national government.”). With the burgeoning religious

revolution—the Second Great Awakening—occurring at

state and local levels, the fear of a centralized government

reasserting power over religion proved too much.

Federalists, James Madison among them, conceded that the

First Amendment “was as well expressed as the language

would admit” in curbing the potential for the new

government to establish a national religion. Debates on the

Amendments to the Constitution (Aug. 15, 1789), 1 Annals

of Congress 758 (1834). So both parties agreed the

Amendment codified the existing paradigm at the time—

religion was a matter for the state, not federal, government.

Smith, 81 Notre Dame L. Rev. at 1849. And it was at those

local levels of government that the public trusted officials to

represent their religious preferences.

Thus, the Framers adopted a structural prohibition in the

Establishment Clause that recognized the federal

government’s limits. So although church and state

historically competed on where to draw the line between the

sovereigns, “[t]he First Amendment, with its doctrine of

52 HUNTSMAN V. CORPORATION OF THE PRESIDENT

church autonomy, is a recognition” that government has no

“jurisdiction over the internal affairs of religious

organizations.” Esbeck, 2004 BYU L. Rev. at 1589. In

America, “religion”—not the state—has “jurisdiction over

ultimate truths, a comprehensive claim to undivided loyalty,

and a command to worship.” Kalscheur, 17 Wm. & Mary

Bill Rts. J. at 93 (simplified). “Caesar recognizes that he is

only Caesar and forswears any attempt to demand what is

God’s.” Id. at 64 (simplified).

F.

Post-Ratification Practice

After ratification, Executive practice further cemented

structural barriers over matters implicating religious truth.

Take the newly acquired Louisiana Purchase. In one

instance, Madison, serving as Secretary of State, received

word from the governor of the Orleans Territory that he had

“Shut the Doors of the church” in the territory as rival priests

feuded. Kevin Pybas, Disestablishment in the Louisiana and

Missouri Territories, in Disestablishment and Religious

Dissent: Church-State Relations in the New American States

(1776–1833), 273, 281–82 (Carl H. Esbeck & Jonathan J.

Den Hartog eds. 2019) (quoting W.C.C. Claiborne to James

Madison, May 29, 1804). Secretary Madison told President

Jefferson and the President responded that “it was an error

in our officer to shut the doors of the church” because “[o]n

our principles all church-discipline is voluntary; and never

to be enforced by the public authority.” Id. at 282 (quoting

Thomas Jefferson to James Madison, July 5, 1804). Thus,

President Jefferson acknowledged that, so long as religious

officials did not “breach the peace,” the government lacked

any authority to interfere in “church-discipline.” Id.

HUNTSMAN V. CORPORATION OF THE PRESIDENT 53

A second incident happened a week later. After the

United States acquired the Louisiana Purchase from France,

it voided nearly all Spanish land grants made after October

1, 1800. Id. at 280. A convent of Ursuline nuns worried

their title might be nullified. Id. The mother superior of the

convent wrote to President Jefferson requesting that

Congress confirm the security of their title. Id. (quoting Sr.

Therese de St. Xavier Farjon to Thomas Jefferson, June 13,

1804). President Jefferson responded promptly that “the

principles of the constitution and government of the United

States are a sure guarantee to you that [your property] will

be preserved to you.” Id. at 281 (quoting Thomas Jefferson

to Sr. Therese de St. Xavier Farjon, July 13, 1804) (cleaned

up). Jefferson added, “your institution will be permitted to

govern itself according to it[]s own voluntary rules, without

interference from the civil authority.” Id. The mother

superior wrote about property rights, yet the President

clarified that in addition to respecting the church’s property

rights, the state recognized its autonomy. Id.

And during his presidency, Madison continued to

believe the federal government lacked authority over

religious matters. See Hosanna-Tabor, 565 U.S. at 184–85

(describing (1) Madison refusing to give an opinion on the

appointment of a Catholic bishop in Louisiana because it

was “entirely ecclesiastical,” and (2) vetoing a bill to

establish the Episcopal Church in the District of Columbia

because it “exceed[ed] the rightful authority to which

Governments are limited, by the essential distinction

between civil and religious functions”).

With each of these acts, American officials refused to

tread into the forbidden sphere of church faith and doctrine.

They understood such questions—settling feuds between

priests, enforcing church-discipline, or appointing religious

54 HUNTSMAN V. CORPORATION OF THE PRESIDENT

leaders—were exclusively committed to the church. And

under the Establishment Clause, the government possesses

no authority to answer such questions. Another does.

II.

A.

With this understanding of original meaning, we return

to whether the church autonomy doctrine is a structural limit

on our authority. Consider Supreme Court precedent.

The first time the Supreme Court addressed the doctrine

it viewed it as a “question[] of jurisdiction.” Watson v.

Jones, 80 U.S. 679, 733 (1871). In that case, while sitting in

diversity, the Court considered how the general law bound

civil courts to respect the final decisions of “ecclesiastical

courts.” Id. at 732 (simplified). Watson recognized that

“where [the] subject-matter of [a] dispute” is “strictly and

purely ecclesiastical in character,” “the civil courts [can]

exercise no jurisdiction” over it. Id. at 733. These matters

included “theological controversy, church discipline,

ecclesiastical government, or the conformity of the members

of the church to the standard of morals required of them.”

Id. Watson then described the heart of the church autonomy

doctrine as the principle that,

The law knows no heresy, and is committed

to the support of no dogma, the establishment

of no sect. The right to organize voluntary

religious associations to assist in the

expression and dissemination of any religious

doctrine, and to create tribunals for the

decision of controverted questions of faith

within the association, and for the

ecclesiastical government of all the

HUNTSMAN V. CORPORATION OF THE PRESIDENT 55

individual members, congregations, and

officers within the general association, is

unquestioned. All who unite themselves to

such a body do so with an implied consent to

this government, and are bound to submit to

it. But it would be a vain consent and would

lead to the total subversion of such religious

bodies, if any one aggrieved by one of their

decisions could appeal to the secular courts

and have them reversed. It is of the essence

of these religious unions, and of their right to

establish tribunals for the decision of

questions arising among themselves, that

those decisions should be binding in all cases

of ecclesiastical cognizance, subject only to

such appeals as the organism itself provides

for.

Id. at 728–29. Watson thus confirmed that the government

may not answer religious questions because “no jurisdiction

has been conferred on the tribunal to try the particular case

before it, or that, in its judgment, it exceeds the powers

conferred upon it.” Id. at 733.

Over 80 years later, the Supreme Court revisited church

autonomy in Kedroff v. St. Nicholas Cathedral of the

Russian Orthodox Church, 344 U.S. 94 (1952). This time,

the Court grounded church autonomy in the Free Exercise

Clause. Id. at 116. Kedroff sought to constitutionalize the

Watson holding, recognizing that it “radiate[d] . . . a spirit of

freedom for religious organizations, an independence from

secular control or manipulation,” and provided churches the

“power to decide for themselves, free from state

interference, matters of church government as well as those

56 HUNTSMAN V. CORPORATION OF THE PRESIDENT

of faith and doctrine.” Id. Given this “federal constitutional

protection . . . against state interference,” id., when “civil

courts” must decide issues involving the church, such as

property disputes, the “church rule [must] control[]” on

“ecclesiastical issues.” Id. at 120–21.

Lastly, the Court confirmed the doctrine’s structural

roots in Serbian Eastern Orthodox Diocese for the United

States of America & Canada v. Milivojevich, 426 U.S. 696

(1976). The Court said, “it is the essence of religious faith

that ecclesiastical decisions are reached and are to be

accepted as matters of faith whether or not rational or

measurable by objective criteria.” Id. at 714–15. Thus, other

“[c]onstitutional concepts,” like due process, are “hardly

relevant to such matters of ecclesiastical cognizance.” Id. at

715. Repeating Watson, the Court accepted that the church

autonomy doctrine involves “in [the] sense often used in the

courts, . . . questions of jurisdiction.” Id. at 714 (quoting

Watson, 80 U.S. at 733).

True, in these cases, “jurisdiction” may not mean what

the term means today. Even in Watson’s time, the Court

recognized that “no word in legal terminology” is “so

capable of use in a general and vague sense, and which is

used so often by men learned in the law without a due regard

to precision in its application.” 80 U.S. at 732; cf. MOAC

Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288,

298 (2023) (observing the Court’s “past sometimes-loose

use of the word ‘jurisdiction’” and “endeavor[ing] ‘to bring

some discipline’ to this area” (simplified)).

Several scholars, however, have viewed the church

autonomy doctrine as strictly “jurisdictional,” depriving

courts of the power to hear the case, like subject-matter

jurisdiction or Article III jurisdiction. See, e.g., Kalscheur,

HUNTSMAN V. CORPORATION OF THE PRESIDENT 57

17 Wm. & Mary Bill Rts. J. at 84–85 (The First

Amendment’s “constitutionally compelled limitation on

civil authority with respect to . . . a particular subject matter”

means the doctrine “is best described as a limitation on the

court’s subject-matter jurisdiction.” (simplified)); Ira C.

Lupu, Robert W. Tuttle, Courts, Clergy, and Congregations:

Disputes Between Religious Institutions and Their Leaders,

7 Geo. J.L. & Pub. Pol’y 119, 145–46 (2009) (labeling the

doctrine as “jurisdiction[al]” because “the Establishment

Clause disables courts from deciding religious questions,

and the parties may not vest the court with adjudicative

authority by consent”). In this light, the doctrine would

carry “severe” jurisdictional “consequences,” like

precluding waiver or forfeiture and requiring courts to raise

and enforce it sua sponte. See MOAC Mall Holdings LLC,

598 U.S. at 297.

Others view the doctrine as a structural barrier to court

involvement in religious affairs—closer to sovereign

immunity—but not strictly jurisdictional. See, e.g., Esbeck,

84 Iowa L. Rev. at 42–44 (When dismissing under the

church autonomy doctrine, “there is nothing in Article III

that limits a federal court’s power in this regard[,]” but “the

limitation is imposed by the Establishment Clause.”); Lael

Weinberger, Is Church Autonomy Jurisdictional?, 54 Loy.

U. Chi. L. J., 471, 510 (2022) (“Sovereign immunity

provides a point of reference” because “[i]t is, like church

autonomy, a structural limit on government power” but

“[l]ike church autonomy, [it] is not fully jurisdictional in the

strictest, technical sense.”).

In Hosanna-Tabor, the Court suggested in a footnote that

it may favor the non-jurisdictional view. In addressing

whether the ministerial exception—a component of the

church autonomy doctrine—“operates as an affirmative

58 HUNTSMAN V. CORPORATION OF THE PRESIDENT

defense” or a “jurisdictional bar,” the Court said the former.

565 U.S. at 195 n.4. The Court reasoned that, under the

ministerial exception, “the issue presented . . . is ‘whether

the allegations the plaintiff makes entitle him to relief,’ not

whether the court has the ‘power to hear [the] case.’” Id.

(simplified). According to the Court, “[d]istrict courts have

power to review [the] claims [brought], and to decide

whether the claim can proceed or is instead barred by the

ministerial exception.” Id. As some have noted, however,

“[t]he footnote was not necessary to the resolution of the

case and so [it’s] not technically binding precedent.”

Weinberger, 54 Loy. U. Chi. L. J. at 481 (observing that

some state courts still treat the doctrine as jurisdictional).

B.

Given this history and precedent, the church autonomy

doctrine speaks directly to court authority and cannot be

assumed away. Constitutional text, history and tradition,

and precedent all confirm that the doctrine has structural

roots. It operates as a strict bar to federal courts deciding

matters of faith, doctrine, and church governance. While it

may not be “jurisdictional” in the technical sense, it “still has

a uniquely structural character.” Id. at 485. Thus, it’s no

mere affirmative defense—to be decided in the order of the

court’s choosing. Instead, when raised, it must be treated as

jurisdictional, like other constitutional doctrines limiting

federal power.

Take sovereign immunity—another structural limit on

our court’s power. We’ve said that “sovereign immunity is

not jurisdictional in the sense that it must be raised and

decided by this Court on its own motion, but rather in the

sense that it may be asserted at any time.” Pistor v. Garcia,

791 F.3d 1104, 1111 (9th Cir. 2015) (simplified); see also

HUNTSMAN V. CORPORATION OF THE PRESIDENT 59

Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 515

n.19 (1982). As a matter of civil procedure, we allow claims

of sovereign immunity to be raised in either a motion under

Rule 12(b)(1) (lack of subject-matter jurisdiction) or

12(b)(6) (failure to state a claim). Sato v. Orange Cnty.

Dep’t of Educ., 861 F.3d 923, 927 n.2 (9th Cir. 2017). Either

way, once raised, we view sovereign immunity as

jurisdictional. Indeed, we treat “sovereign immunity [as a]

threshold jurisdictional issue” no different than Article III

standing. Deschutes River Alliance v. Portland Gen. Elec.

Co., 1 F.4th 1153, 1158 (9th Cir. 2021) (emphasis added).

So we don’t wait until the end of our merits analysis just to

check to see if we’ve exceeded our authority. Cf. Bolivarian

Republic of Venezuela v. Helmerich & Payne Intern.

Drilling Co., 581 U.S. 170, 187 (2017) (“[A] court should

decide the foreign sovereign’s immunity defense ‘[a]t the

threshold’ of the action.”) (simplified). We respect state

sovereignty by granting claims of sovereign immunity this

privileged posture in our cases; so too must we respect the

sovereignty of religious institutions.

By treating the church autonomy doctrine as a threshold

issue, we adhere to the constitutional limits on federal power

and give due reverence to the dual authorities governing the

people—faith and government. Thus, when a party raises

the issue, like the Church did here, we must resolve the issue

before turning to the merits. We can’t simply decide it as an

afterthought, as the majority does, or view it as an alternative

ruling to decide at our convenience, as the main concurrence

does. And Hosanna-Tabor doesn’t say otherwise.

Hosanna-Tabor holds that the church autonomy doctrine

should be brought as an affirmative defense to the merits.

565 U.S. at 195 n.4. But like sovereign immunity, once

brought as an affirmative defense, we must “decide whether

60 HUNTSMAN V. CORPORATION OF THE PRESIDENT

the claim can proceed or is instead barred by the [church

autonomy doctrine].” Hosanna-Tabor, 565 U.S. at 195 n.4.

In other words, we must treat it as a threshold issue.

C.

The dangers of skipping church autonomy and heading

straight to the merits are clear here.

Tithes are a historically sensitive area of a church’s

independence from the state. See Stephanie H. Barclay et

al., Original Meaning and the Establishment Clause: A

Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 548–49

(2019) (explaining how government action on “church tithes

[would] involve[] government interference in church

affairs”). Alexander Hamilton recognized that a

government’s interference with a church’s tithes, even if in

a positive way, “converts it into an establishment.”

Alexander Hamilton, Remarks on the Quebec Bill: Part Two,

Rivington’s N.Y. Gazetteer (June 22, 1775). Hamilton was

responding to the Quebec Bill, which permitted the Catholic

clergy to “hold, receive and enjoy their accustomed dues and

rights.” Id. Proponents of the bill asserted that it only

“permit[ed] a tolerated church to enjoy its own property,” so

it was “far short of the idea of an establishment.” Id. But

Hamilton realized that if tithes are the legal “property” of a

church, the legislation amounts to government control over

religion. That’s because “[n]othing can be deemed my

property, to which, I have not a perfect and uncontrolable

[sic] right by the laws.” Id. So if a church’s claim to its

tithes comes from the law—or an act of government—it “has

a legal claim to them, and the conditional consent of the

[church members] is set aside.” Id. (emphasis added).

Because the state “might withhold or diminish at pleasure”

HUNTSMAN V. CORPORATION OF THE PRESIDENT 61

this legal claim, “this, in the most proper sense, converts it

into an establishment.” Id.

The majority brushes past the church autonomy doctrine

and resolves this case on the merits of Huntsman’s fraud

claims. It relegates the church autonomy analysis to a single

paragraph—a mere afterthought to its merits analysis. It

believes that “nothing in [its] analysis of Huntsman’s fraud

claims delves into matters of Church doctrine or policy.”

Maj. Op. 18. But Huntsman’s fraud claims ask whether the

Church’s statements about its tithing policy were fraudulent.

So to decide this case, the majority must necessarily settle a

dispute between the Church and a disaffiliated member

concerning the meaning of “tithes.”

Take how the majority gets to its merits decision.

First, it parses the Church President’s statements to

Church members about tithes. Based on its close reading of

his statements, the majority concludes that the President

properly “drew a distinction between principal tithing funds,

coming directly from Church members, and earnings on the

funds that the Church sets aside from its annual income

(which includes tithing funds).” Maj. Op. 14. But should

we be so comfortable with a court flyspecking statements of

faith like this? What if the President hadn’t been so precise

in distinguishing religious terminology? Can courts really

serve as copy editors for religious doctrine? The First

Amendment commands that we cannot.

Second, the majority weighs in on disputed religious

doctrine. Huntsman contends that the Church didn’t

distinguish between “principal” funds and “earnings on that

principal” and that the Church treated all funds as “tithes.”

Id. at 11. The majority sides with the Church over

Huntsman. Siding with one side of a doctrinal dispute

62 HUNTSMAN V. CORPORATION OF THE PRESIDENT

necessarily decides the issue. Perhaps, under Kedroff, that

decision is right. See 344 U.S. at 94 (observing that, in

property disputes, “the church rule controls”). But that’s

only because of the church autonomy doctrine—reinforcing

its applicability. Imagine instead that this dispute was not

between a church and a former member but between two

factions within a church. Could the majority so easily side

with one faction over the other on the meaning of “tithes”?

Third, the majority scrutinizes the Church’s financial

records and deems them “consistent” with Church doctrine.

See Maj. Op. 15 (“Ensign Peak’s financial records are

consistent with the Church’s statements that it funded City

Creek with earnings on invested reserve funds.”). As

Hamilton recognized, any interference in church financial

affairs, even approvingly, is establishment “in the most

proper sense.” Hamilton, Remarks on the Quebec Bill: Part

Two.

Fourth, the majority decides who may speak for the

Church. It considers the statement of a purported

whistleblower, David Nielson, who disagreed with how the

Church publicly defined “tithes.” The majority resolves this

by asserting that his view on the meaning of “tithing” money

“d[id] not conflict” with the Church’s statements on the

doctrine. Maj. Op. 16 n.5. But who are we to decide whether

Nielsen or others can speak about church doctrine for the

Church? As Madison said, we are not the “competent Judge

of Religious Truth.” Memorial and Remonstrance, 5 The

Founders’ Constitution 83. Whether his statements adhered

to church teachings is not for us to resolve.

Fifth, the majority decides how Church adherents should

construe the pronouncements of religious doctrine from

Church leaders. Because Huntsman was a sophisticated

HUNTSMAN V. CORPORATION OF THE PRESIDENT 63

businessman and from a religious family, the majority holds

that he “would understand the meaning” of the Church’s

statements on tithing doctrine. Maj. Op. 17. But, in doing

so, the Court assumes the role of a faith leader and dictates

what a religious adherent should understand about church

doctrine.

Sixth, the majority announces the level of precision that

Church teachings must follow to avoid fraud charges.

Because the Church tithing doctrine was not “so

ambiguous,” the majority says the Church “could [not] have

expected or intended” its followers “to misunderstand what

it meant.” Maj. Op. 17. But if the doctrine was obscure or

ambiguous, could the majority then demand more precision

in the Church’s explanation of its faith? Courts have no

competence to answer how a religious institution should

preach to its congregants.

All this shows the trouble we invite by deciding cases

implicating religious doctrine on the merits. Our authority

is limited. Temporal. With no say over what is eternal.

Given that the Constitution demands that we not enter the

sphere of religious faith, the majority vastly oversteps our

authority by reaching the merits.

III.

Because it was necessary to decide this case on church

autonomy grounds, I concur in the judgment only.