Source: Mormon Church on Trial for History Fraud - Gaddy vs. LDS Church | Ep. 1944 Channel: Mormon Stories Podcast Published: September 23, 2024 | Archived: May 24, 2026

Video: Mormon Church on Trial for History Fraud - Gaddy vs. LDS Church | Ep. 1944
Channel: Mormon Stories Podcast
Published: September 23, 2024
Duration: 2:02:29
Views: 99,545
Category: People & Blogs
Video ID: TAOqZHyxbtg

Description

An oral argument at the tenth circuit was brought forth today in the case of Gaddy vs. The Corporation of the President of the Church of Jesus Christ of Latter-day Saints. The argument is that the church hid its true history and that it lied about its use of tithing funds. The church representative made some shocking statements in both of these regards. Join us today as we discuss the arguments with attorney Kolby Reddish.

Recordings of the oral arguments are available for download here: http://www.ca10.uscourts.gov/oralargument/search

Show Notes: https://www.mormonstories.org/church-on-trial-history-fraud/

Timecodes: 00:00:00 Intro 00:01:24 Introducing the panelists 00:05:21 Summary of the three different tithing cases 00:11:20 Gaddy case explained 00:11:50 The complaint 00:17:30 RICO and the dismissal of the Gaddy case 00:22:00 Summary of the “intention to defraud” 00:27:00 Legal questions vs moral questions 00:29:16 Church Autonomy Doctrine (Bryce case) 00:30:40 Where does history end and matters of doctrine begin? 00:31:55 Background for the Bryce case - The church was teaching anti LGBTQ+ things 00:35:30 The start of the oral argument 00:40:20 Why does it matter if the church leaders believe the doctrine? 00:40:55 If the church leaders believe it, do they lose their lawsuit? 00:43:50 Kay Burningham’s argument 00:44:55 Questions that hint at intent 00:47:40 How far does this go? 00:52:34 Back to the audio of the case oral arguments 00:55:30 This is different than any church - The Correlation Committee 01:00:53 Audio - Tithing to have the full benefits of the Church 01:03:40 Quotes that say the Church is NOT using tithing to build the mall 01:05:55 Fraud in the law 01:10:30 Why Huntsmans lawsuit has legs 01:13:11 David Jordan speaking on behalf of the Church 01:16:40 What the plaintiffs are arguing 01:18:17 Reactions to the Church’s lawyer 01:20:55 What is the end result of this trial? What’s the downside here? 01:23:36 Audio - No limit to what churches can conceal? 01:26:52 Audio - The Church misleading them about tithing 01:29:20 The church’s definition of tithing 01:37:38 Mr. Jordan is trying to say Hinckley did NOT make misrepresentations 01:38:35 Audio - Kay Burningham’s final response 01:42:26 Why Elder Oaks says the Church cannot apologize 01:47:30 Audio - Packer saying they don’t have to tell all the truth 01:50:00 The big takeaways

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Transcript — YouTube panel (human-authored)

0:02 hello everyone and welcome to another edition of Mormon stories podcast I am one of your hosts for today John delin it’s September 23rd 2024 and uh it looks like the Mormon church is being sued for fraud um actually multiple times but uh today in the 10th uh Circuit Court in uh Utah uh there was a hearing um where uh the Mormon church is is being sued for misrepresenting its history uh allegedly according to the plaintiffs and I believe that there are there’s at least one defendant if not a group of defendants who are hoping to oh sorry a group of plaintiffs uh who are hoping to reclaim some of the tithing that they paid um because they feel like they paid tithing under false or fraudulent pretense and so a hearing was held earlier this morning and we have the full audio of the hearing and what we’re basically going to be doing is explaining the case we’ve talked about it a little bit before we’re going to be explaining the case um we’re going to be playing the audio from today’s hearing and we have a

1:19 distinguished panel of guests here uh to help us understand and process what’s going on so without any further Ado I welcome back to Mormon stories uh JD uh Colby reddish hey Colby hi John thanks for having me welcome back thank you it’s nice to be back um Colby is is an actual attorney the rest of us just play one on TV um that’s true and we’re talking about appeals which is my wheelhouse that’s the type of law that I practice primarily in and excited to I practice law boisey Idaho um so I’m coming to you from boisey you can see the background of boyy behind me awesome well thanks for joining us again Colby um hero knows more about the law than I think many law students but herard you’re back how’s it going hero uh doing great yeah pretty excited to get into it you do you do enjoy these legal episodes right yeah yeah they’re pretty fun it’s kind of a hobby of mine of yours yeah yeah for sure and Julia do

2:29 do you have legal stuff is a hobby as well uh no the church history side of this was what was fascinating to me yeah yeah all right well cool well let’s go we do have a live audience so we do welcome um we we want to welcome all of those of you who joined us through the live stream maven’s gonna be moderating comments today we’re glad maven’s here and she’s gonna star um any questions or uh you know insightful comments that y’all have we do want to let you we want to thank our donors who make Mormon stories possible so thank you if you’re just a regular old monthly donor uh you know your contributions are crucial um if you do want us to show your question or share your comment uh donating through YouTube via Super Chat is the way to to guarantee that that happens so we’ll make sure and show all the super chats but also maven’s gonna cherry pick really good comments or questions she’ll star them and then we’ll uh try to share those as well as they come up and and of course we always

3:39 want to encourage everyone to like And subscribe subscribe to this channel like it comment on it and that’s the way that the algorithm Gods will smile upon us gods and goddesses right Julia right all right well Colby let’s let’s turn the time over to you and um we’ve got some slides as well so uh where should we begin well let’s start at the beginning it’s a very good place to start I like how you I like how you I like John how you’ve retained the turn the time over to language it makes me feel very comfortable um so we will start today and it’s actually G to be a big week for these tithing lawsuits um the last time I was on Mormon stories we actually talked about um a putative class action that had started back in July um we we had done some reporting on that and so we’re back talking about U two different updates to some big tithing lawsuits across two different Federal appet circuits so for those who don’t know the

4:41 federal circuit courts of appeal there are 13 of them across the United States Idaho is in the ninth circuit as well as California and so that’s where the James Huntsman tithing lawsuit is taking place later uh this week I think on Wednesday we plan on doing a similar response to that and then the arguments um in the 10th circuit which actually took place in Denver this morning Utah Falls within the 10th circuit as well as Colorado um th that’s where uh the Gaddy case that we’ll talk about today so if you don’t mind pulling up the slides John we can go from there all right so um here’s here’s the title slide and uh let’s go a and go to the first slide perfect so here are the three different tithing cases and where they stand so today we’re going to talk about the first here on the far left that is the Gaddy case there was oral argument today at the 10th circuit after the case was initially dismissed by the trial court judge this case began as uh began back in mid

5:42 20109 the Huntsman lawsuit which involves uh James Huntsman that oral argument is set for an onbon rehearing in front of 11 uh a panel of 11 judges at the ninth circuit in Seattle after that case was dismissed by the trial court and then reinstated by a first app pellet panel that is an individual suit so it’s not a class action it only involves James Huntsman and his potential return of tything and that case began in 2021 and then the case I have a question we’re gonna be live streaming that hearing on Wednesday right that’s the plan as long as as long as I don’t screw up too bad today okay perfect were you gonna say something herard uh well let’s finish actually okay okay yeah the three all right okay then the third case actually is just getting itself off the ground that case began in late 20123 at the trial court level and it still is at the trial court level seeking a class action um there’s been some movement in that case actually recently um as far as the parties arguing back and forth o over

6:51 motions to dismiss the church has filed some predictable motions to dismiss there’s been some Discovery motions and also the question of class certification those questions have yet to be decided by judge Shelby so one of the reasons that we haven’t done an update on the filings that have gone back and forth is because the judge hasn’t decided anything and we’re most interested in what the judge decides so those are the three pending tithing lawsuits against the LDS church um at the moment um there are additional ones I think also in the state of California that involve uh several Plains I think they were rolled into the Chappelle litigation though is my understanding so those are the three cases that are pending and we have movement in two of them this week so today we’re going to talk about the Gaddy case which again the oral arguments were heard at the 10th circuit this morning after the case was

7:38 initially dismissed by the trial court okay so is is Shelby involved in Gaddy yes so judge Shelby did not originally preside over Gaddy another judge did but judge Shelby was actually the judge that issued the order dismissing the case back in 2023 that is that is on appeal okay so so Shelby is is with is presiding over Gaddy and Chappelle but not Huntsman yeah correct yep okay um and again remind us the important ruling that judge Shelby presided over that affected not only us but maybe all of America the the the samesex marriage ruling right yeah so judge Shelby I think it was back in it was before oberfell it basically led to oberfell so in 2015 the Supreme Court of the United States in a case called the burgel bodes recognized that discriminating against same-sex marriages discriminates on the basis of sex I think that case was rightly decided um the case is actually a little bit more complicated than that but judge Shelby was one of the judges

8:45 that ruled that led at the trial court level LED eventually to oberfell in in Utah so in the district of Utah so that’s something about Judge Shelby he was appointed by Barack Obama and we actually had some additional details on his background in our episode back in July if people want to go back and listen to that all right and really quickly I just want to thank Nancy um for the Super Chat as well as Laura Lee and then there’s a couple that actually have comments or questions Sandra breu compilations writes it is heartbreaking that the church has taken tithing dollars dishonestly I wish I could redon my money to organizations that would actually help people in need thank you for that comment sander for the support and Jake writes love the content guys you do all do great work I want my tithing back all right herard did you have a quick comment or question for for Colby no uh I think it was the same question about Shelby okay perfect all right sorry to steal your thunder oh you’re good perfect and so to go back to

9:49 those two cases that are you know on appeal now one of the reasons I think that I wanted to talk about these issues is appeals is actually the area where I practice the most in it’s my personal legal area of interest and where I started my career was appell at law and I wanted to start with this statement about appeals uh just to kind of set the stage for what we’re going to talk about today appeals are not just a second trial in front of a different judge or in front of a federal judge appeals are not SEC not simply a second chance to argue facts they are about legal errors so I actually pulled this case from one of my favorite Ido Supreme Court cases again where I practice um that talks about this the Ido Supreme Court back in 2018 wrote quote an appeal is a formalized analysis of alleged legal error an appeal is not merely a second attempt to argue relevant facts as we have made repeatedly clear it is improper when a party merely asks asks this court to second guess a trial court

10:44 in weighing evidence instead an appeal should be focused a focused argument about specific legal errors that occurred at the court below and so that’s basically what we’re going to focus on today and one of the reasons that app pellet law can be so interesting is it is specifically about whether in the Gaddy case what we’re going to talk about is whether the district judge judge Shelby when he ended up dismissing the case whether he did so on the proper basis or whether that uh ruling Incorporated some legal error so to give people some background on how the Gaddy case started and really the theory of the case I think you summarized it pretty well John but this this is another summary that I pulled um the plth Gaddy Laura Gaddy was a member of the Church of Jesus Christ of latterday saints for most of her life in 2018 she found information on the interet that she believed conflicted with the church’s teachings on its founding and history as a result Gaddy

11:35 left the church she then filed a federal lawsuit in 2018 making fraud and racketeering claims against Church leadership so let’s look actually at um a photo of the uh complaint to kind of give people a background of exactly what factual allegations were incorporated into gadd’s complaint you can see here John do you want to kind of go go over the the subpart B there the Mormon Empire’s false representations of material fact yeah so just kind of re read him perfect okay so uh she’s concerned about Joseph Smith’s first Vision that the the official you know 1838 narrative that most of us are familiar with where God and Jesus visited Joseph allegedly misrepresents the earlier account that we have where it was just the Lord that visited Joseph Smith um so yeah she feels misled about Joseph Smith’s first Vision she feels misled about the origin of the Book of Mormon uh you know basically around its historicity whether it’s um whether there are problems with the book um I I

12:48 I guess that uh she’s also concerned about uh how it was translated how it was produced um I think the stone in the Hat rock in a hat Theory and the treasure digging stuff is going to come into play here I’m guessing uh probably along with the art depictions and the way that members were both taught and Visually the the translation was depicted I’m guessing it’s going to be talking um about that um and then she wants to talk about she’s concerned about or feels misled about the book of Abraham uh the you know having been taught that the book of Abraham was translated from Papyrus when we now know that egyptologists uh have denounced what Joseph produced as not being a translation of the papyra of the book of Abraham and then there’s some miscellaneous representations or misrepresentations of material fact yeah and I think one of the things that I wanted people to be able to see as we look at that uh that’s right from the table of contents from the complaint itself is that what the Attorney K

13:53 Burmingham is attempting to do for Gaddy for the plane of Gaddy is she’s trying to walk very fine line here of talking about the church’s shift in its narrative on these different historical issues while also attempting not to run a foul of the first amendment’s protection of religious freedom and then the establishment so the first amendment has two different protections the first is the free exercise clause which protects you know freedom of belief and then the uh establishment clause which protects religious institutions and their position Visa society and so they’re attempting to walk a very fine line here by talking about the shifting narrative and people will be able to hear that and I’ll also just say John you must be a prophet because you’re absolutely correct we’re gonna hear from in the oral argument about the sear Stone The Rock in the Hat and the discrepancies between that and artist depictions those pesky pesky

14:47 artists um if people want more indepth um information regarding the basis for the case I was going to point them to this prior episode of um Mormon stories where you and radio free Mormon take a look with K Birmingham at least for portion of for a portion of the presentation for the actual case and this is going back years ago um where you on the front end basically had this discussion and now here we are following up on the back end on appeal so that’s episode 1385 uh check it out yeah absolutely so to go back I guess big picture the theory of the case um in the lawsuit Gaddy accuses the Church of misrepresenting its history and beliefs as a ploy to increase its membership which she says results in more ties a federal district court in Utah dismissed her case at the outset ruling that her lawsuit could not move forward because it would require the court to decide whether Church teachings about religious matters are true Gaddy then appealed the lower Court’s decision to the 10th circuit and it is that oral

15:50 argument that oral argument on that appeal that we’re going to listen to live today before we do though I want to go through some of the procedural history of the case and I am going to do this at a high level because it is very complicated um in the slides Julia I gave a link to where people if they want to read the documents for themselves can can pull and access those um thanks to you know the public access information that the courts generally have um cases often go through a big lengthy back and forth procedurally and this one is no exception um as we talked about in the past you know a complaint is the first document that will start a typical lawsuit and then a defendant May file response called an answer or some other type of response and then there may be motions that go back and forth um that can be responded to by amended complaints and that’s essentially what happened in this case is originally um the plaintiffs filed their complaint the church responded with a motion to

16:47 dismiss actually two different motions to dismiss and then there were amended complaints that were filed that basically just changes the theory of the case or adds additional support or facts to to the complaint um can eventually add new PLS that’s what happened in this one it started with one plff and we ended up with three and so gadd’s case went through several different amended complaints to before it ended um with several rounds of motion to dismiss before judge Shelby when he was at the well he still is at the district court level um now there were financial fraud claims that basically related to the church’s history and the way the church is taught about its history as well as claims that were based on Rico which is the racketeer influencing corrupt organizations act that is a federal law that was signed into um signed into law by Robert Nixon or I’m sorry Richard Nixon president Richard Nixon which I think is pretty hilarious uh just because I’m a fan of irony and I think it’s funny that um you know a federal

17:49 statute that was passed in 1970 dealing with corrupt organizations and basically uh Mob rule was signed into law by one of our most notorious presidents for his is bad action so as far as the Financial claims go the financial fraud claims go the financial fraud claims are very similar to the case that we discussed back in July it basically is premised off of the plaintiffs alleging that they would not have paid tithing if they’d understood certain things about the church um one issue in this particular case that’s different from the Huntsman case that we’ll talk about on Wednesday and then from the Chappelle case we talked about in July is that gadd’s case does as people can see from that overview of the complaint that we looked at gadd’s case does raise certain questions about the church’s historical claims which typically run a foul of First Amendment protections and in fact going back to the procedural history it was last year March 28th 2023 that judge Shelby

18:50 dismissed gadd’s complaint for exactly that reason judge Shelby held that he had concluded all claims in on the church’s religious history and teachings fail under the church autonomy doctrine that is a common law Doctrine that’s evolved as as by operation of the first amendment that basically churches have um some protection for how they regulate their Internal Affairs and their policy and Doctrine so if we can pull up um the case about church autonomy Doctrine there John unless you had a question um well I just wanted to kind of you know switch between leg jargon and just kind of Common Sense and so let me just maybe just try and make sense of this and so members members are taught a certain narrative about the church then when they’ve then you know the church starts coming clean about its history starting around 2014 with the gospel topics essays and other sorts of things and the church I guess in 2015 for the first time didn’t it

19:54 publish the um the fact that it had a SE Stone in a in a vault and kind of acknowledge the sear stone that somehow it was used that that all kind of happened in 2015 is that right 15 yeah that’s right and one of the things one of the reasons I highlighted on when these cases started because I do think this is important is we also have the enzyme Peak whistleblower information that was leaked by Lars neelen in December of 2019 if I have my dates correct but the Gaddy case actually started before that in mid 2019 and so that’s one of the reasons that the financial fraud claims were added in one of the amended complaints they were basically an add-on to these historical claims but you’re right John um and thank you for the reminder to bring things back outside of the legal jargon is that is the premise of the case is the church had made certain it had made certain historical teachings and certain

20:47 historical claims about its history and the essential claim that these PLS are making is if the church would have taught them an accurate version or at least had acknowledged that there were two different conflict versions it may have led those plists to look into these issues further and they wouldn’t have been out the tithing money that they eventually paid or the time that they sacrificed to the church all of those things are part of what they asked for as as far as relief goes in their complaint okay kby are you talking about the the most recent complaint or are you still talking about the original that was later amended so I am talking about the original and the amended the original the original did not have like the explicit um it it did have fraud claims and it did have Financial a financial element but it was basically after David neel’s whistleblower report was leaked that these things were basically incorporated into an amended complaint yeah yeah the reason I ask is just it’s it’s a little bit more um and

21:45 and you can correct me if I’m wrong uh my understanding is a little bit more complicated than just whether they disclose the information or not I think what the plaintiffs are alleging is that the leaders knew about the truth they decided to hide the truth about its history and and put it in vaults and they did it because they knew that if the truth came out they would lose membership or members wouldn’t convert so it’s kind of like this intention um to the fraud that they’re alleging it’s not like oh I was not giving the entire information is they’re alleging fraud and an intention to Def frud is that is that right did I get that right goby yeah you’re absolutely right so there were six causes of action in the original complaint and common law fraud was one of them so you’re right fraud typically has nine elements that you know we could go through we’re not going to yeah but that’s one of the things is intent basically to conceal or intent to in fact I think one of the

22:47 additional um one of the additional allegations in the complaint was actually fraudulent concealment so the idea that Not only was there like this intent to defraud but there was actually like a plan to fraud people by withholding information so I think I think you’re absolutely right herero and I think one of their examples is how is the um correlation committee and they’re alleging that the church intentionally created a committee to hide this information from the members and massage the information in order to keep members in the church so that they wouldn’t find out the truth B um and I think that’s something that will come out in the oral arguments uh the idea of a correlation committee I think yeah and I think I think the other thing that one of the reasons that the plainist appointed to the correlation committee is because when you’re dealing with a big institution like this right you have to when you’re when you’re

23:39 dealing with that as an attorney particularly as a plist attorney you need to impute the decisions to the organization and so that’s one of the reasons that they’re doing that is to say these aren’t just like you know one-off actors that are teaching things that may be outdated the church has this entire correlation program and commit to make sure that what is being taught in its congregations is consistent with what it wants to be taught and so you’re absolutely right and so just just for those who are joining us for the first time who know nothing about Mormonism or who who aren’t um familiar with the facts in this case I’ll just State my understanding and experience with the Mormon church is I was always taught that Joseph Smith translated The Book of Mormon from Golden Plates that were sitting in front of him where he was looking through these magic glasses or spectacles called the urum Thum that he got from the Hill from the angel Moroni and that it was sort of this biblical

24:43 translation with the plates what we were never told what I think the church knew about for at least 100 if not 200 years and apparently intentionally hid was the fact that number one he was a treasure digger before he ever produced The Book of Mormon and that he would run around with a a sear Stone this stone that he found in a well that he believed had magic powers and he would lead people around to try and tell them that he could find buried treasure underground it was with that peep own Ste sear stone that he ran a foul with the law that he also apparently used to quote translate the plates but the plates weren’t in the room and he just basically put the stone in a hat looked into the hat and then would would come up with the text that ends up being the Book of Mormon that story the church knew and hid and punish people who talked openly about it so if I think about whether the common sense

25:45 fraud test would be applicable at face value trying to be as objective as possible Colby I you know it seems with common sense that there was some type of fraud that took place um you know that’s just my gut reaction and I think that’s what a lot of people feel right yeah and and to be clear one of the reasons that judge Shelby dismissed the case or the basis I guess on which judge Shelby dismissed the case which again that’s the decision being appealed he didn’t actually reach or make a decision on that point at all John and the reason is because the US has the First Amendment which protects religious freedom and the current view of what religious freedom protects is that it doesn’t allow for the courts to look that in depth or to scrutinize that closely a Church’s decisions regarding its internal policies or its religious doctrines and its claims of faith and so one of the distinctions I guess I wanted to be really clear about when we’re talking about this is you know my job when I’m

26:50 an attorney or when I communicate I also you know teach in the evening sometimes for the local law school here and one of the things that I try and do when I discuss these issues is when we’re talking about the law I’m giving an opinion on what the law is and what the law says what the law requires I’m not opining on morality um or ethics because the law to me the law fixes a certain standard and I wouldn’t go below what the law requires but I also think that actual morality and actual ethics and ironically it’s the church that taught me this goes above and beyond what the law requires so I always want to make sure that people understand understand when I’m sharing my opinion about you know this legal Doctrine or that legal Doctrine or why the court did or may do certain things that’s not to say that I’m necessarily okay with those things it’s just to say that there are legal questions and then there are moral questions I think all the things that you highlighted the shift in the

27:46 church’s narrative is obviously a big part of the reason that I’m no longer a member but the question on whether those that discrepancy is legally actionable I think is an entirely different question does that does that Mak sense yep that’s perfect and there’s actually a comment that that somebody made uh Newton writes LDS judges are going to be impartial um he’s basically implying number one that that uh judge Selby is LDS which my understanding is is that he’s not that’s my understanding uh and then secondly that that when he did um when he did dismiss this case that he did it because he was religious but I think what you were trying to communicate I believe with this slide right is is is what you just explained which was if you had to summarize again it’s that the court can’t tell churches how they should be teaching religious matters or or what religious teachings are true versus not the courts can’t really weigh in on that yeah that that’s essentially

28:55 correct is the court ultimately dismissed the the complaint um in response to the church’s motion dismiss on the grounds of the church autonomy Doctrine so if you’ll pull up the slide focused on Church autonomy Doctrine we can talk about that just a brief overview here I think one more forward uh this says autonomy Doctrine okay there it is yeah yeah so here is actually and you’ll hear this case referenced in the oral argument when we get to it here in just a minute um they’ll talk about it as the Bryce case so I pulled this from 2 from the 10th circuit the court wrote quote the church autonomy Doctrine prohibits civil court review of internal Church disputes involving matters of Faith Doctrine Church governance and polity and basically that church autonomy Doctrine is borne out of the first amendment’s protections for religion here in the United States um I know this is going to be discussed but I I’m seeing history not listed there and so for me I don’t think this is an issue of of Faith

30:00 Doctrine governance or polity unless you can count how it teaches its history as governance what is polity Colby what is polity is polity is like the internal affairs it’s very similar to the church governance question policy basically right yeah policy is another analog I would say yeah okay so I guess part of I wonder if we’ll get to that is whether or not how it teaches its history is a part of how it governs well and I think that’s a great question it’s one of the questions that I think ultimately the court will resolve in when it has to decide this this case is where does history end and where does matters of Faith or doctrine begin because I think it’s it’s very accurate to say regardless of how I personally feel about those doctrines right I think under any you know secular definition of the term Doctrine the church’s beliefs or the church’s uh teachings about the first Vision or about priesthood restoration or about the Book of Mormon I I struggle to view those things as not

31:02 involving questions of Faith or doctrine um but at the same time one of the things that’s very unique about Mormonism is we’re not dealing with first century history we’re dealing with history that you know is not even as old as our country it’s not even as old as our Constitution and that’s one of the things I think that makes Mormonism unique amongst um amongst religions uh particularly when we’re dealing with questions like this and that takes us I think to the next uh slide which is are there limits to the autonomy Doctrine is that right yeah well and real quickly before we wanted to I wanted to talk about the facts of Bryce just at a high level okay Bryce involved a claim against the Episcopalian Church so that was the the the plth Bryce was actually a youth pastor for an Episcopalian Church and the church was teaching very anti-lgbt um things in 2002 and that basically was how how this case evolved

32:04 was was the plth basically brought claims saying that you know the church shouldn’t be able to teach these things that it’s discriminating against me all of things again when we’re talking about morals and ethics that I agree with but in that Bryce decision which again will will factor into the oral arguments in a large way the the court basically said you know we can’t go here as a matter of First Amendment protections and people can either agree or not agree with that again I have my own opinions I’m just talking about what the court essentially found that you know anytime we’re dealing with internal governance or questions of Faith um that the court even wrote at one point in the Bryce decision quote the church autonomy Doctrine is rooted in protection of the First Amendment rights of a church to discuss church doctrine and policy freely and so that I guess for what it’s worth just kind of brings home some of those things all right perfect so yeah like you said judge

33:01 Shelby even in his um order granting the church’s motion to dismiss made a point of saying that the church Aon autonomy Doctrine is not without its limits if you’ll pull that slide up John the judge shall be noted again while he was granting the church’s motion to dismiss that the church autonomy Doctrine is Not Without Limits churches may not invoke the doctrine to Shield purely secular decisions to determine whether the church autonomy Doctrine applies in a given instance courts must decide whether the dispute presented is an ecclesiastical one about discipline Faith internal organization or ecclesiastical rule custom or law or whether it is a case in which we should hold religious organizations liable in civil Courts for purely secular disputes between third parties and a particular defendant albe a religiously Affiliated one and at a high level what I want to say basically that’s saying is if you’re suing a church and you’re suing a church for something you could sue any other Organization for based on the law of

33:58 civil fraud then the first amendment is not going to give the church any protection or any church any protection and that’s one of the things going back to our earlier comments about how this case relates to the others that’s one of the things about the Huntsman lawsuits that’s very interesting is both at the trial court level and then at the appell at level none of the four judges that have heard that case yet have found that the claims that James Huntsman has raised about misrepresentations by Gordon hinley and other church leaders about the use of tithing funds to ultimately go to the City Creek Mall project do implicate the First Amendment and so that’s I guess the line there that I would invite people to think about is if you’re suing a church but you’re suing a church for something that you could sue any other Organization for then you’re probably not going to run a foul of the First Amendment if it gets close to involving what religion does uniquely talking about these claims of Faith or these claims of about belief

34:54 then you may implicate the First Amendment and that’s ultimately why judge be dismissed the case and why the the plaintiffs decided to appeal so let’s now turn to the oral argument and we will listen in and respond live all right so we’re just gonna play this thing all the way it’s an entirety and then we’ll pause when we’ve got something interesting to say is that or or questions to ask is that all right yeah that’s good yeah yeah all right uh let’s go ahead and start The Honorable judges of the United States court of appeals for the 10th ciruit United States court of appeals for the 10 circuit is now in session all those having business before this honorable Court may now draw near and they will be heard God save the United States and this honorable court please be seated I I apologize for our late start um one of the judges who will be unnamed had trouble getting his robe on so um we have six cases for our argument

36:15 this morning we’ll take a break at Point am I speaking loud enough for you to hear maybe I’m not understanding but is this Co this is not Shelby who’s going to be involved in today nope nope were three judges from the 10th circuit that sat on the panel because it’s the appell because it’s the appell court correct yep judge Harts Phillips and IID okay so there’s gonna be three judges asking questions to what both attorneys yeah correct so first is gonna go the attorney for the plaintiffs for the attorney for Daddy right K Birmingham will start she’ll give a presentation there are actually two uh peles or respondence attorneys that will present um because the church was joined in saying that the First Amendment doesn’t allow the courts to go here by uh I think the convention of American Evangel something like that you’ll hear it introduced here in a minute and then K burningham gets a second chance that’s the way all these appell at Arguments for got it okay let’s keep

37:21 rolling yeah I I don’t have a my eighth grade teacher said I don’t have a hog calling voice and uh I’ll try to speak up um so we have six on our doctor we’ll take a break at some point usually after the third or fourth case um so stay near we don’t take a long break we’ll start with 23- 4110 Gad versus Corporation of the president of the Church of Jesus Christ may I please the court my name is k burningham and I represent the appellants who are plaintiffs in the underlying action uh Laura Gatti Lyle s and Leon Harris sorry now you know who is having trouble with the role that’s great um the case is a putative class action case we have not yet moved for certification because we wanted to get the any constitutional issues will theone first and it’s against a corporation we have appealed dismissal of the RICO claim that has been alleged in two separate types of areas number one is a misrepresentation of facts concerning LDS history uh I

38:40 don’t have the time and I will only talk about the um brown stone in the Hat issue for purposes of today’s oral argument because there are too many to to reference the second one is uh with regard to misrepresentations on how tithing was used once tithing was collected are we good to go okay none of these pens work I have okay all right um it was interesting I noticed on the exterior of the courthouse there’s a Latin phrase and I won’t attempt to pronounce that Latin but it it states in English that to no one shall we deny Justice nor shall we discriminate in the application thereof and I would just ask the court if they could keep that in mind because we are just a group of individuals and we are former members of LDS church who are suing the church uh not all of all the members of the church and that’s a much smaller group um that was incorrectly stated I believe in the appes briefs but it’s just the former members we realize that there maybe many

39:35 members who don’t think that the issues we’ve addressed are significant but to the ones that we are representing those were very key issues and our argument is number one that the church autonomy Doctrine does not apply because if you go back and read the Watson case that was the origin of Church autonomy or ecclesiast ecclesiastical difference um two things had to be shown before the threshold of application of church economy was meant number one that the church and its members can believe anything they want and they can practice any kind of religion or preach or do any act that they like as long as it wasn’t against public morals number two is that um the reason for that is that there’s an assumption that people who join a church do so with their implied consent and they know what they’re doing why does it matter whether the church leadership leaves the church doctrine because because the Brethren have said many many times in General Conference which is twice yearly attended by the plan of in this case every year twice a

40:32 year that we will not lead you astray and their Doctrine is correlated and only certain things are taught at the local level or at the at the high level and they have admonished the members not to read the internet not to check outside sources in 2010 a deset news article came out and said don’t you use proper sources well let me ask it a different way then because we’re not really get into what I’m asking okay if the church leaders do believe it do you lose your lawsuit do you what do you lose your lawsuit yes I would have thought that even if the lead leaders of the church believed it there could still be a possibility for fraud from omissions which is to say even if the church is true there’s still room for a civil Rico but your first answer says no let me qualify that your honor if I may there was an argument that that we made a circular argument that the church uh the church leaders are not sincere therefore uh what they taught they don’t believe and therefore

41:28 the case is worth nothing but because the church leaders have concealed all these artifacts Stones documents primary sources for over a 100 years that argument doesn’t fly and so the church even though certain people don’t believe it uh they’re charged with knowing about the contents of their archives and just as president Nelson a couple of years ago revealed in the reenactment of the video This is how Joseph Smith uh created The Book of Mormon dictated the Book of Mormon was he placed a brown stone or a stone in a hat put his head in the Hat and the gold plates were covered usually and so that’s an admission as far as we we believe uh that what they had taught for decades was not true and that they didn’t believe it because they had the stone in their wealth since 1907 well when you say not true then we are heading into deep religious Waters there well but their state of mind was not true they did not believe what they represented they represent why does it matter if they believe it in other words here’s my

42:22 point even if everything about the church is true the plaintiff still may not have joined the CH Church may not have contributed their time and money if they would have known about the searstone or if they would have known about the translation of the book of Abraham or other items even if it’s true but you’re kind of fighting me on that I’m not sure I guess I don’t understand your question all right I’m gonna go ahead and pause there let’s talk what do you want to say about what’s happened so far Kobe what’s going on there so it starts out very procedural people may think that’s weird but that’s how I’ve opened all my oral arguments as well is you know good morning and may have please the court here’s my name here’s what I’m doing that’s just kind of the way it goes I think Court’s one of the few areas we still have this weird kind of antiquated formality um I like you hinted at earlier John or like I hinted at earlier in response to you bringing it up you know the church or I’m sorry Kay’s argument is really

43:18 premised on talking about the change in the church’s position so she specifically goes and talks about uh the book of Mor translation and talks about the change um in the use of the searstone and that’s one of the the reasons you can already see that the judges are asking her questions about you know how does the church autonomy Doctrine affect this she hasn’t gotten here yet but what she’ll attempt to do is basically separate out the question of religious belief from actual facts that can be adjudicated and I think if I’m understanding her argument correctly and I’ve listened to it twice she’s a essentially trying to say that regardless of First Amendment protections the one narrative that the church taught or the other that it’s teaching today has to have been false because they knew about these things dating back so far um Julia I know you know the history is the reason you’re interested in this what did you think about her comments well hang on I just

44:20 have this is a spot I had a big question on because he tries to ask this question like three different times and she does not quite understanding and even when I watched it this morning didn’t quite understand what he was asking so like I feel like I know what she’s trying to say like you just mentioned like the churches not being honest with their history what was he trying to get at what was he trying to ask like if they all believe then it’s dismissed I think it’s just saying um my understanding is like he’s saying if the church leaders believed it was through the urum Thum and not through the searstone does it Ma like do you do you still have a lawsuit you know to go to your earlier comments about fraud herard he’s basically asking questions that hint at intent right right he’s asking like well if they really believe it doesn’t that just defeat your lawsuit entirely and I guess to K’s credit she basically says yeah I guess it would um I think obviously then what she’d say is the difference is I

45:15 can prove that they didn’t believe it because we know that they’ve shifted The Narrative so this is where I I this I’m a little bit frustrated about how muddled this convers ation is because so so first of all I was surprised that she said yes the the case fails if they believe it because here’s the scenario that that that seems like fraud to me even if they’re sincere Believers let’s say that they knew that Joseph Smith was a treasure Digger and and translated The Book of Mormon with the stone in the Hat and the plates not even in the room let’s say that they that they believed that uh you know he he did translate with the stone in the Hat um so they’re sincere Believers but that they intentionally misrepresented how uh how the Book of Mormon was translated because they felt like if they told the true mechanics of how it was translated then people wouldn’t believe it there can still be fraud knowing fraud and misrepresentation even if they believe

46:26 that the book book Mormon was translated by the gift of power of God that’s why I was disappointed I think that’s why the judge was surprised that she said no I don’t have a LW yeah it’s like the judge was trying to help her almost and she kind of stuck a stuck a fingure in her eye a little bit okay wait so wait so we did we hang on I just want to plug in for a second we did a recent episode with Sandra Tanner responding to Richard Bushman about the searstone and and some of the historical documents where they denied his use and then we knew that he was using it like Lorenzo Snow had it and like so Joseph Fielding Smith in the history he denies that Joseph Smith ever used the searstone even though the church has it in their in their vaults so like so wouldn’t it be like even if they don’t believe it but there’s historical evidence that he did use it does that like I guess I’m just saying for fraud you still need to prove that they there was an INT of hiding it but

47:13 like John said there’s a scenario where they still are sincere Believers in God and Divinity but they still hid the reality of how it was translated because they thought it was less uh inspiring or you know or it kind of sound weird or like Bushman said too weird sounding right right right yeah and there will be a question that’s actually asked of the church’s attorneys down the road that kind of gets to this but the basic question is like how far does this go like intent is always a difficult thing in the law to figure out because we can’t read people’s minds right so unless someone sits and writes you know some Diet tribe about why they’re doing something it can often be difficult for us to discern and I think that’s one of the reasons that Kay tried to kind of like Dodge the question but yeah you know again one of my concluding thoughts is actually talking about I’ve got on the wall that I’m looking at right now I’ve got a picture of Teddy Roosevelt and one of his famous quotes is this man in the arena quote and so while we’re

48:14 talking about this I also don’t want to give people the impression that like doing what Kay’s doing here and making these arguments at this level is really difficult like you have to keep so many things in mind um like two weeks ago I argued a case in front of the Idaho court of appeals and my record in that case was much smaller than the record that K’s probably dealing with but I still had to know like right off the top of my head where to find you know references in thousands of pages and that’s just the reality of this type of appell at work is it’s very technical um it’s very difficult um so I do want to give her that credit that like I think she was trying to rely on the record she had and so she’s basically trying to say well it doesn’t matter on these facts because we know that they knew it wasn’t true because of the shift in narrative but yeah I do think that question was a bit of a softball that she kind of whiffed and that happens I’ve done it myself I think she just didn’t understand it to be honest um and I it

49:11 also this question goes back to the beginning right if you go with Dan bogle’s theory of how the Book of Mormon was produced he believes Joseph believed it was inspired but he was not uh but he was not delusional he know there was no Nephites and lemones and he was just making these things up in order to make people believe in Jesus so and he thought God approved of his methods because he was being blessed or he felt good about it you know and he was inspired to write it um and it kind of you know it’s kind of what John with John’s point of like well he he knew there was no Nephites and lonit but he still believed he was inspired may may maybe I’ll give an example of what I’m thinking about let’s just say that I let’s just say that I believe that God appeared to in the form of a talking ham and cheese sandwich right and I and that’s what the record is that’s what I wrote down in my journal that’s what I believe happened

50:07 but I was embarrassed to admit that it would that God came in the form of a talking ham and cheese sandwich and so I told the world that Jesus appeared to me God appeared to me in the form of Jesus when I’m intentionally misleading actually what happened I can still believe that God appeared to be in the form of a ham and cheese sandwich but but deceive people by by misrepresenting what actually happened during the visitation does that come close to what and and basically the judge was saying if I still believe that God appeared to me does does does the case fall and and you know in theory you know k k would have said um no because I’m a sincere believer that God visit visited me I just Mis represented what happened is that yeah or k could have said something like No And the reason is because while the first am protects religious belief it doesn’t allow you to lie about those sincere religious beliefs so if you’ve got this belief in

51:12 cheesus you know um the ham and cheese sandwich then you should just be that’s basically the effect of what K’s saying is they should just be honest about what they actually believe not have shifted The Narrative over time I think the difficulty we get with and the reason the judges are asking about this is one the intent element and then two because of those first amendment protections because they are so broad for religious beliefs it’s because this is one of the reasons that the church Aon autonomy Doctrine exists in the first place is because the courts are at least in theory not not supposed to adjudicate these types of questions now again people can feel like that’s right or wrong I personally think it’s it’s wrong if you want my policy decision but my opinion of what the law is isn’t formed by what I think the law should be yeah but the focus of this case shouldn’t be whether the prophets believe that Jose Smith translated The Book of Mormon it should be about whether or not the

52:13 prophets and church leaders misled the world in the membership about the story of Joseph Smith’s translation inally yeah yeah right intentionally misled them all right let’s keep going go back to the video or audio and we speeding it up just to make it go a little bit faster okay well I’ll let you continue I’m just saying that uh misrepresenting one’s state of mind is a misrepresentation of fact if if we say that these are the correlated true facts about the church in the history and and they’re not that’s fraud there we go well let me look let me ask you from from the opposite side okay I suspect that most religious leaders have doubts on occasion sure so if that’s the case then you can always avoid the uh religious Doctrine uh the legal Doctrine involving religious Matters by saying well at this time that church leader didn’t actually believe it right even though they may have overcome their disbelief they for a variety of reasons but does it mean that

53:27 if religious leaders ever have doubts about their faith then the doctrine that protects them from Court examination of Doctrine is iterated no but I think facts are different than beliefs and I think certainly part of the faith process is deciding do I really believe that Jesus was resurrected or not and you have to come to some sort of you know maybe I do maybe I don’t do I believe in God I’m not sure I’m an agnostic but when we have facts and we have evidence of a fact that happened which is different than belief which is empirically provable my argument is that and maybe I’m extending this a little bit or the underlying implication in ballot is that you need to sincerely believe those facts to take them out of the the fraud elements fraud is a misrepresentation of fact and that’s what we have here and all these artifacts in the stone just let’s go the stone had been in the church’s possession for over a hundred years and so they they knew or were charged with

54:19 the knowledge that the stone was there and yet they commissioned artists the only artwork that they ever displayed was Joseph Smith translating from open gold plates with no searstone in sight so this is a fact issue and there has to be I would think there has to be a line drawn between fact and belief well nobody has repudiated the Golden Plates have they nobody knows what happened no well this is not about the Golden Plates well but you’re saying I just want to make sure you’re not saying in fact was a Shar Stone and that gold plate stuff never happened and that’s not a religious no we’re not saying that we’re saying that exactly what the prophet admitted and he said we know not just this is my opinion my belief but in his reenactment it is we know that Joseph Smith put the stone in the Hat and the plates were covered usually and so that’s that process is radically different when you join the church you’re taught that and when my clients

55:07 join the church you’re taught that there were these gold plates and they were inscribed uh by ancient Hebrew prophets to give wisdom to the latter days and now with this different process that the court or that President Nelson has admitted that really cast a lot of doubt and and it’s it’s an admission and they’ve done that with the other things like the book of Abraham and Joseph Smith having many many wives as well well and so this is different than any church because number one there may be churches that negligently didn’t disclose things about their religion or or have different beliefs that’s fine we’re not saying that that Rico would cover that type of thing but we believe and we’ve alleged that they intentionally uh made this correlation Committee in order to conceal all these all this evidence against um what Wiggly happened because the narrative I think we get your read your briefs too okay let me ask you specifically about your

55:55 claim regarding the of TI okay sure before we yeah go ahead Julia I just want to talk about the the artist because the the church’s attorney comes in later and he kind of uh you know kind of dismisses that that the church like oh it’s the artist’s fault but like in our previous episode with Richard Bushman or responding to Bushman with Sandra Tanner we talked about how um how that the church and a on a couple of occasions in the IGN the church did publish about the sear Stone in the Hat and then but the picture the picture that went along with it was always not the in the Hat it was like the sheet in front of them or Joseph Smith using you know looking at the plates and using his finger like there was no pictures I think even before maybe 2015 of him using the searstone in a hat so I just wanted to like say like absolutely there was no they didn’t commission any artist to make the the right depiction of of this historical event and I just want to add I think it’s absolutely factual that if the

56:51 Mormon Church basically had as its official narrative the truth truth which is Joseph Smith was a treasure Digger put a stone in a hat to find buried treasure got in trouble with the law and then took that same searstone uh allegedly got plates but the plates weren’t anywhere in the room and when he wanted to produced The Book of Mormon he stuck that magic Stone in a hat and then would dictate what what what became the Book of Mormon if the church had told that both to the world and to the membership I think personally I think we would have had significantly higher levels of defection from members and significantly decreased conversion rates to the church now I’m open to y’all disagreeing with me but I think the church leaders knew that and that’s literally why they didn’t tell the correct version that’s my opinion for the for the lawsuit it doesn’t really ma matter what would have happened if they had disclosed it what matters if what the church leaders

57:53 believed would have happened if and you know if they had disclosed it and made intentionally decided not to because they they thought that they would lose members okay well and to go off of your comment John I completely agree with you when we’re talking about moral and ethical so I want to set the legal stuff aside for a second but one of the examples I use all the time is that the church talks all the time and apologists still use this line from the last testimony of Emma Smith all of us can probably like almost quote verbatim that you know Joseph Smith could could neither write nor dictate a well-worded letter right that’s Emma says that in her last testimony which she gave to Joseph Smith III the bottom line is that though the church had built that into its correlated material and its correlated narrative again for a very long time Emma also talks about that rock in the Hat story in response to a

58:49 question from Joseph Smith I third what is the truth of Mormonism and she talks about the Rock and the Hat story and in my view you to selectively choose to quote something and again people can look up this um this last testimony of Emma online it’s readily available it’s only like a page and a half maybe two or three pages but to selectively quote from something like that you have to be picking and choosing which parts you want to build into your narrative right and so to me that is the very clear problem is this you know apologetic that like I know that you talked about it in that episode Julia’s referenced about Bushman where he says like oh the church leaders were learning this at the same time as everybody else like no they weren’t because there were people who were picking and choosing which parts were going to go into the correlated narrative they’ve done the same thing with David whitmer’s add an address to all believers in Christ he talks about the Rock and the hat in that

59:46 pamphlet which the church cites all the time to say that you know he never lost his testimony of the Book of Mormon so right me is when you look and you see when people are selectively picking and choosing there has to be intentionality there that’s the only way to do it and there there’s no way there’s no journals or records somewhere about all of these meetings H happening and them talking about it like if if we have details about the meetings about the BYU um Federal investigations that Matt Harris has uncovered with his latest book there’s no way there’s no detailed meeting minutes about about these decisions that could be uncover potentially if this moves forward to Discovery been destroyed yeah yeah I was just GNA say check out Matt’s book it’s it’s called second class Saints the black Mormons in the struggle for for equal rights or something like that Equity Equity equality Racial equality yeah there you go it’s a fantastic book

1:00:47 yeah okay should we should we keep going yeah let’s do it all right let’s keep going now I think you I think the complaint acknowledges that to to belong to the church you had to tithe to get the full um benefits of the church you you could belong to the church but you wouldn’t be able to for instance um go into the temple and be married for Time and Eternity without uh swearing that you’re a full tithe payer so to get the full benefits you had to be a full tier my impression was that then that the the plainist who claimed they wouldn’t have tith if they knew that the money for or the real estate development was coming from the sources it was coming from they would not have tithed right would they have left the church uh yeah many many would many would there’s no allegation in the complaint well I think there’s an I’m sorry I think there’s an allegation that says they would not have tithed or they would have reduced the amount of tithing

1:01:44 they paid and that the combination of both uh using tithing and this is principal because as per David Nelson’s affidavit from 1997 they used about1 to2 billion dollar of a 6 to8 billion annual tithing income and just dumped it into EPA into enzyme Peak advisers so so we have people who a few people who say well I don’t know if I really believe the core tenants to the church then the tithing thing wouldn’t have bothered me so much and we have other people and my plainst are saying no they both both of these things really would be reason to pause and especially if we knew about the tithing we might have researched more and gone and not trusted our leaders gone beyond the got an injury the injury you’re alleging is an economic injury yes that’s right you paid the tithing that’s right just saying that we might have researched more and left the church altogether if we would have known that they weren’t straight with us about the tithing and

1:02:30 the tithing is mostly material omissions I do believe that because as um the planers say they would have taken the risk to their souls essentially by not tithing if they had been told um they would go ahead yes they would have they would have um and I can find that during app’s argument if you want me to but um they would have they they wouldn’t have joined the church or tithe if they knew what they know now and what was revealed in 2019 judge Shelby ruled that the allegations on the tithing were not particular enough for rule nine and fraud and you contrast the allegations in this case with say James Huntsman who’s very precise on how much he paid for tithing as well as relying on the five statements that are identified your plaintiffs are not as precise is that right um I don’t think that’s true your honor actually do they say how much tithing no we don’t say that because we don’t have to see the amount of Damages although I can tell you right now but but we have specific starting in 19 63

1:03:26 with when the church begins fostering belief that tithing proceeds proceeds are separate from the the money-making or the profit bearing subsidiaries of the church we have um 1997 when EPA was created uh we have back in 2003 when the classic no tithing was used for City Creek and that was not explained then that was repeated in desert news and ansign magazines and online and Laura Gaddy um we have a specific allegation that her husband she had her friend say oh did you know they’re using tithing to build the mall and she had her husband look it up and in these two Publications it said no no tithing was used in City Creek in 2003 and 2007 also they didn’t they didn’t indicate the beneficial life bailed was bailed out by the use of tithing isn’t isn’t all the churches money tithing yes and and and they and they admit that as much they that it’s all one they put it all in one big hedge fund to use well then why are the plain of surprised that the money came from

1:04:19 tiing if that’s the only source because because that’s not the only source the LDS church has many subsidiaries that are profit subsidiaries investing tything deser news from s books Bonville international corporation not to unduly you know criticize Kade that was another big whiff there um when we’re talking about the differentiation between these two funds I can understand why she gave the answer she did because that’s basically she’s relying on David Nielsen’s affidavit but or Declaration or affida one or the other but you can see where he’s going is if the churches standard is that it all goes into one pool of money he’s basically saying how was anyone harmed basically and what it really comes down to when we when we’ll talk about the the Huntsman tithing lawsuit when we look looked at the Chappelle those statements in our coverage of the Chappelle lawsuit is the differentiation between tithing and

1:05:15 invested tithing Reserve funds was never explained to the members except in I think a speech that Gordon hinley had given like 13 12 or 13 years before he made that statement about how no tithing funds would be used for building the City Creek Mall project and so that to me to come back to a phrase I used when we talked about that back in July that to me is patently ridiculous that like you’re expected to remember something that a church leader said from 12 years before in a completely different venue to get the context of an appropriate statement so that was a big width there um the other thing and I had this in the slides but we didn’t really talk about it the other thing I wanted to highlight is fraud in the law per court rules is something that has to be pled with particularity that means that you have to give more facts in a complaint than you would in a typical case and actually the fraud claims in the Gaddy case judge

1:06:09 shall be dismissed for failure to comply with those court rules basically saying that the financial fraud element or some of the financial fraud elements basically they just weren’t explained well enough in the complaint to give the church enough um to give Church basically like enough advanced notice per court rules to actually get to the bottom of that particular issue so when they’re asking about rule nine that’s what they’re asking about is this requirement that the courts have that in a fraud case along with other types of cases that you plead those with specif like with a very very heightened level of specificity did you want to add anything to that Julia I just have a question so he um one of the judges says something to the effect of where the members are taking risks to their souls by not paying tithing I don’t know was he getting at belief or what was he getting at when he asked that question I think that question is aimed at like he’s

1:07:03 basically signaling this is all First Amendment protected stuff what you’re talking about because he’s saying you know whatever they did with that information under their belief system at the time or under the church’s belief system it has these religious overtones and so he’s basically signaling I think and it’s difficult to read that t lives on those types of questions but if I were do I would basically saying isn’t this all First Amendment protected stuff you’re saying that they would have acted differently but they would have acted differently in light of like these Eternal consequences or potential Eternal consequences okay and he’s basically signaling First Amendment isn’t he also saying oh go ahead Julia oh no no that was good isn’t he also saying why are you bringing up City Creek Mall or beneficial life members when they give their tithing just assume the church is going to buy stuff with it so what is been what is nin Peak or

1:07:58 beneficial life or the City Creek Mall have to do with anything right well yeah and I think um there’s I it is pretty clear that there’s at least one judge that’s really familiar with either the LDS church and the claims and the other two are kind of um not really understanding what the plaintiffs are AR um are mentioning um but I think what they what what um they’re not understanding each other and G’s um attorney she’s thinking when when he asked doesn’t it all go into one pool she’s thinking inside Peak right which was revealed in 2019 members didn’t know back then when City Creek was being built that there was some something called IGN Peak so when Gordon B hinley talked about um about the uh commercial entities of the church I think most members would have believed you know the desert news and all these other um commercial entities sustain themselves and they also produce income that the church then uses for commercial purposes like and um like City Creek and I think

1:09:05 the Judge is like all putting it all together in one one thing yeah and that that temporal element there herard I think is really important because David nielson’s report didn’t come to light until late 2019 and I think that’s the piece that the judge isn’t understanding like while it’s true that they aggregated all the funds into enzyme Peak nobody knew that until David neel’s whistleblower report but it’s also important for um for uh gad’s argument to be that that the church considers the entirety of IGN Peak as tithing as sacred funds because then they can pin they can you know pin uh Gordon be Hinkley statements about not using tiing in into the fraud element you know I see I see I see wa so he because Tinley said there’s tithing and then there’s not tithing and we’re going to use not tithing for them all right but then they’re saying that it’s all the same well yeah because there’s statements from church leaders and you know and and

1:10:06 people who work at enin Peak saying that they see it all as tithing even if it’s the lawyer says that later you’re right okay yeah the very the very particular statement is that Hinkley said so he says no tithing funds will be used we will use funds from the church’s commercial interest something like that and invested Reserve funds and it’s in the same sentence that he’s talking about commercial interests and so to me that’s one of the reasons that I think huntsman’s lawsuit has legs is that I don’t think from the context it’s clear that what the church is saying today is what hinley was representing to the membership I would have walked I remember that statement being made because I was like a teenager when hinley made that and I remember walking away from him talking about that in conference and people even in my area which was very devout had a lot of questions about like how is the church paying for this like multi-billion

1:10:54 dollar project and so Hinkley gave this assurance in general conference if I remember correctly basically saying like I think anyone would have walked away from his statement with the with the assumption that no tithing funds were being used yeah and that inad commercial funds right that the invested refund the invested uh funds came from the commercial entities not from tithing and you said the Gaddy case happened before huntsman’s case is that what you said correct so Huntsman started in 202 W and gadd started mid in 2019 before we even knew about the Whistleblower report okay that’s what I mean to ask it’s like before The Whistleblower report from David nson and I’m gonna just make an admission I’m super slow I just realized this is being argued in Denver Colorado not in Utah and I’m guessing none of these three justices have ever been Mormon they’re all never Mormon justices is that right as far as I know I I

1:11:51 didn’t look up their background but they don’t sound like one of them I mean mentioned the book of Abraham and and it was a lot more familiar with lingo I think and you’ll see it more when the church’s attorney comes up U the other two seem a little bit less nor do we know do we know if the Attorney K burningham is is Mormon or was Mormon she said we okay she said we at one point I wasn’t sure if she meant we as in the three or or sure she’s been open about the fact that she’s an ex exp okay yeah okay that’s interesting to know all right all right let’s keep uh let’s keep rolling from broadcasting not just conference not just LDS things but other companies and other things and they’ve always been told that that this is a profit Mak these are profit making subsidiaries this is not the spiritual aspect or the tything that’s being used and so I just don’t think that I mean I think and then in 2018 there are some

1:12:49 graphics in the IGN just before they resigned that say this is what we use tithing for and nowhere does it disclose that we invest principal into commercial activities so I see that your time has expired yes thank thank you wow that’s all she got to do that’s all she got to well she gets to speak again in a little bit yeah good morning your Hors may it please the court I’m David Jordan here on behalf of the Church of Jesus Christ of Latter Day Saints the appellants are asking this court to reverse and remand to the district court for a jury trial on whether Joseph Smith the church’s founding Prophet saw one member of the godhead or two in a vision in 1820 and whether God inspired him to translate The Book of Mormon from plates engraved by ancient prophets using a stone known as the urum and Thum or instead using an opaque searstone let me let me have you pause there because that’s what you that’s what I need help with how does our case and the allegations in our case involve resolving internal Church

1:13:51 disputes requiring adjudication of questions of religious Doctrine in other words you say that PLS are asking us to say which version of the vision is the true one but in fact what they’re saying is there were two versions We don’t care which one is true if we would have known that there were two we would have headed for the exit so I don’t see how we’re resolving any religious Doctrine we don’t care which one it is uh it does involve the resolution of church doctrine because in effect what they’re asking for is a heresy trial it’s a determination of what is the Orthodox belief as if there were some monolithic understanding of every detail of church history by every leader of the church or every church member from 1820 to today and as the court said in Watson B Jones the law knows no Orthodoxy well whichever is true we’re not concerned about the PLS aren’t bringing that to us but what they are bringing to us is that a searstone was used which if that were disputed I would understand okay now

1:14:53 we’re getting into religious Waters but it sounds as though the church agrees that a sear Stone was used and that was something that was not revealed for decades and the plaintive say if only if only someone would have told us that it was a sear Stone instead of gold plates at least for some of it we would have walked and I don’t know why this earthstone would have been uh concealed except for that so that’s what I need to help with isn’t isn’t that a bizarre thing to say they say specifically we don’t dispute that the Book of Mormon is true we don’t dispute that it was translated by the gift and power of God we dispute whether it was translated using the uran Thum a clear stone or an opaque stone that almost sounds silly churches have the right to Define develop and evolve their own history the inconsistency that she’s pointing out I would like to make clear alleged in the complaint is the use of a sear stone

1:15:50 versus a a piece of art a painting painted by uh some early member of the church depicting Joseph Smith sitting at a table looking at gold plates well who’s to say he didn’t who knows what happened in 1820 or whether he sat at a table and looked at gold plates we’re asking that she’s asking the court to um intrude on the miraculous on matters of Faith Church History is full of references to the searstone church history is full of references to the uran th it’s full of references to the Joseph Smith uh studying the gold plates and how 200 years later we’re supposed to decide exactly by what process goded nobody’s asking that I think that that that is not their argument that that they’re asking the court to say was it the searstone or was it the gold plates which clearly we can’t do their argument is you all have your beliefs and keep them and we respect that but don’t join us in without telling us key information

1:16:57 like there was a searstone we don’t I don’t think they’re here to prove the untruth or the truth at LS Church they’re saying if we had only known these facts which weren’t revealed we wouldn’t have participated and you all do as you please well what I would say to that your honor is this you what they’re asking the court to prescribe is the manner in which the church teaches its Doctrine what things you should emphasize what things you should uh particularly point out to members of the church or to prospective members of the church when you’re teaching the Gospel of Jesus Christ to them in the history of the church and to say well what you need to do as a church what courts are telling you you must do as a church is put particular emphasis on the method by which the Book of Mormon was translated and uh any disputes about that or anything that hasn’t been given emphasis in the past that is an intrusion on a a deeply

1:17:55 rooted religious matter is there any limit to that principle which is to say Can a church conceal anything even if it thinks wow we’re gonna lose half our membership all right before we get into the intrusion part let’s just discuss what his um what what his approaches Colby do you want to comment on that he’s basically trying to frame it as a heresy trial that is he intentionally misunderstanding what they’re trying to say I mean the church has always done this and they did it on even if they have to make up do church doctrine that doesn’t exist and has never been taught they did it on the Arizona case where they literally the lawyer the lawyers of the church literally told the court that it was Doctrine from the church that Bishops could not disclose the abuse of children gosh and that it was a a deeply held religious belief that bishop and even more even more offensively I would add because I followed that particular

1:18:50 case very closely they celebrated the win which to me is disgusting like I don’t care who you are that’s disgusting that they celebrate the win in that particular case I didn’t mean to cut you off R sorry it’s kind of smart I don’t know is it I guess it’s not smart because it doesn’t seem to be working but what they’re trying to do is say things like the court shouldn’t be telling churches what its Doctrine is or isn’t the court can’t adjudicate religious doctrine that uh you know the the court can’t put on a y trial to decide if the church leaders were committing heresy or not if they were Orthodox or not who cares if it was a clear stone or an opaque Stone he says churches have the right to Divine and develop their own history um who knows what really happened um and you know the it’s like the church is overflowing with references to the searstone it’s all over the place and you know the church can’t be telling courts can’t be telling churches what they should emphasize and

1:19:57 point out it I mean it’s if this were going to work it would be effective way of Mudd muddying the water right right Colby yeah and I mean what he’s explicitly trying to get the court to do is to agree with judge Shelby and say that the First Amendment just doesn’t allow the courts to go there and I was actually surprised to be honest listening back how the panel really didn’t seem too receptive to that argument and maybe maybe I’m too closely to the tees but I like how the one judge held his feet to the fire and basically said that’s not their argument I love that right I love I counted it twice where he basically says you’re strawmanning their argument that’s not their argument their argument is you need to I mean he goes on this diet tribe about this parade of horribles and part of me just wants to go and this is what I’ve said in all of these lawsuits like what’s the end result of these lawsuits we’re gonna make churches tell the truth like that’s he’s defending is

1:20:54 like can just say whatever we want and the first amendment allows us to and like maybe that’s what the first am will be held to hold to but like what’s the downside here like the church should have just picked its you know its honest history and told that honest history what what is so damaging about that it’s it’s to me it’s just absurd that they defend this stuff so aggressively and he’s just about to say that and when we get started what were you gonna say herard I was a little bit alarmed that he made Ms rer say to the court where he said that the church history is full with references of Joseph looking directly at the plates yeah he did say that my understanding is there no literally not a single reference to that event of him not having the plates in the room you mean because he’s saying saying there’s references of steer Stone the glasses and him just looking at the plates right yeah but but the church history is not full of him looking at the plates there’s none yeah yeah as far as I know

1:21:52 the history the history right history yeah the depictions but not the history are full of it so maybe that’s what he means I also think you can tell that he’s clearly a believing active member just because he he says church history like instead of like you know the church’s history or the Church of Jesus Christ of latterday saints history he’s like just like Well church history is full of these types of references the Gospel of Jesus Christ also he’s he’s like how silly is it that they believe the Book of Mormon but they’re having trouble whether he translated with the sear stone or the the glasses like he doesn’t say that word but like the yth like it’s so silly like why are we worrying about method when we know the Book of Mormon is true but like if you knew these things you would stop believing or these plaintiffs or whatever might stop believing the Book of Mormon is true anyway yeah it was yeah yeah but this next part was the part that really caught my attention

1:22:40 what we’re about to hear okay so the question is the the justice is asking are there any limits right um you know to these protections right kobby that’s what he asked yep my prediction right now is that the decision is going to come two uh two to one and this is the one before you play and especially because I’ve made some comments about you know k whing a few of the questions one of the things I want people to appreciate is when you go in and you prepare an oral argument like this they get to just like pause you and ask questions whenever they want they can cut you off in the middle of a sentence it’s really difficult to like return to your talking points or Advance your argument when you’re sitting there in the middle of like grappling with this question and you may not even fully understand it so however this question is great and I agree with Julia I love this part because judge basically asks him well are there any limits to what you’re saying and this is this is the church attorney’s response all right let’s roll

1:23:37 it je on this we better better than a vault somewhere is there any limit on what a church can conceal and not be subject to civil Reco I think there is no limit at all on what a church is required to teach or not teach emphasize or not emphasize I I I think that would be a deep intrusion into what you described as deep religious Waters me switch to the other part of their claim do you agree that you want me to pause that yeah let’s just pause it for one second this is again where I want to be really clear about the distinction between talking about moral and ethical decisions which I find his answer abhorent and legal decisions because I actually think from a legal perspective what he’s saying may be I don’t want to disappoint people but that may be the rule that comes out of this case is that there is no limit because if we start opening this door where does it go we’re going to basically require churches to like I you know jokingly said we’re going to require churches to

1:24:39 tell the truth but you can see how problematic this becomes when you take it outside of Mormonism right let’s say we start talking about just like General Christianity and we talk about the problems with an empty tomb or a resurrection the bottom line is that all religious beliefs are based On Believing things that are impossible that’s just a reality is that they’re all premised on believing things that don’t happen in our everyday experience and so I wouldn’t be surprised if that was a judge trying to like get him to constrain what he’s saying but again I want to build out this distinction between what’s moral and ethical versus what’s legal maybe the first amendment protects religions to say whatever they want it could set a dangerous precedent and maybe the pendulum will swing back but if you want my honest opinion as a lawyer I think that’s probably the way this case would resolve it’s consistent

1:25:30 with judge Shelby’s direction that if you start opening the door to allowing people to sue religions based on their historical claims is that where does that where does that line end can you adjudicate whether Jesus rose from the dead I don’t know that you can and that’s one of the sorry go ahead no no I was interrupting finish go ahead and finish no I think I was finished I think I think again I just when we talk about these legal Concepts I always want to be really clear that I’m talking as a lawyer what I’m talking as a lawyer and I’m talking as a person when I’m talking as a person as a person I don’t agree with that the church should just have told the truth in the first place but whether them not telling the truth makes it legally actionable I think is a different I’m just super frustrated because it’s not about what it belief it has nothing to do with this in my opinion it’s all about whether they

1:26:17 misrepresent the facts whether they misrepresent the history whether they misrepresent whether they knowingly intentionally misrepresent the history in a way that would uh apply undue influence to cause someone to give money or to join um it’s all about knowingly misrepresenting the facts has nothing to do with beliefs and I I wish it were made more clear yeah all right should we keep going yeah religious Doctrine that’s what I call it does not apply to their claim that the church misled them about how tithing funds would be used because they were told I’ll sit forward You’ turned up the mic as far as you can sorry about that do you agree that they that the plff can bring a RICO claim based on misstatements regarding how tithing funds would be used in particular whether principal whether the funds would go directly to the uh real estate development by the temple I do I do not agree um first of all I think Jud Shelby is right about his application of 9B to the RICO claims so he let me ask you

1:27:40 about that he said the allegations of um Reliance were not there’s nothing in 9B about Reliance 9B does not cover Reliance it says you have to state with particularity the circumstances constit shooting fraud or mistake right and the circumstance of course Reliance is an element of fraud so it’s not that that’s not what 9B covers all right you might have an argument under ikbal twamley but you don’t have an argument under n9b all right I I certainly won’t dispute that with your honor but let me go to the heart of your question yeah the statement that they reference is one made in a sermon by the then church Prophet Gordon B hinley in 2003 in which he said that tithing funds would not be used for the development of City Creek and then he said instead of tithing funds we will use revenues from commercial Enterprises owned by the church and earnings on invested Reserve funds that’s not there I think you have a pretty good argument with respect to that statement but they also reference other statements endorsed by the church

1:28:43 in their Publications which said that principal is not used Etc and in fact it was used no that’s their allegation in fact they do not allege that uh principle was used and and not earnings or interest nor could they that’s the dispute in the Huntsman matter and and it it boils down to this It ultimately comes to a definition of tithing which is also a deeply rooted religious matter let me explain it in this way tithing as the church defines it and the church has the right to Define it under the autonomy Doctrine typing means the donation it’s a sacrificial free will offering of a member it’s not earnings on bond coupons it’s not stock dividends earnings is what a tithing is what you give and so when President hinley distinguishes between tithing and earnings on invested funds he’s making a distinction if you will between principal and interest and they cannot allege and they do not allege unlike James Huntsman that

1:29:52 tithing in the sense of their donations were used to build City Creek and I will point out isn’t there an affidavit to the contrary in the record no at explain why that affidavit doesn’t contradict what you’re saying okay that’s an affidavit um at page 106 of volume four of the record and what it says is that this man attended a meeting he’s up also a disaffected former member in which a an executive of anine peak a management of a management a funds management company employed by the church said every we think of everything as tithing we think of everything as the widows might well that’s simply an expression of a view of an executive not a church ecclesiastical leader that everything whether it’s the original tithing donation or whether it’s earnings on it he goes further than that he he alleges that uh the use of principle was was uh hidden by having the money go to this other entity which then put it into the real estate development but you don’t I

1:31:04 I I don’t see it that way at all you may not see it that way but couldn’t one draw a reasonable inference to that effect and you could dispute this at trial or maybe with further affidavits on summary judgment but at this stage of the proceeding hasn’t the complaint alleged enough with with his attached affidavit to suggest there’s evidence that money from tithing was essentially maybe through a couple channels but was directly used for commercial development and contrary to what church official cour Church statements had said I I think that’s I don’t think that’s consistent with the record tithing is the donation tithing is not earnings on the donation that’s what president hinley said was used and there is no allegation in This Record there is no allegation in this second amended complaint uh about uh tithing itself having been used as opposed to earnings on tithing well I can look at it again I I thought that is alleged in that

1:32:07 affidavit and I didn’t feel that the your brief responded to that fully so that’s why I wanted to pursue that here I I I what they try to do is what Mr Huntsman tries to do and conflate the two and say well it’s all tithing but it’s not all tithing as president statement makes clear and I’m now ining on Mr sher’s time we’ll give we’ll give him this three minutes questions for me I think probably just in the interest of time John so there’s an amus that argues on behalf of the church’s side he’s really just going to rehash a lot of the same arguments to be completely Frank and then K goes again um but I don’t know that we should listen to that maybe we should because I know you have a hard cut off in 14 minutes right well I I if I I I’ll I’ll run a little late if if there’s something that that the listeners and viewers need to listen to I like the last five minutes because they she references the Packer quote about not telling all the truth and I think that like I liked the ending if

1:33:04 you wanted to skip over the attorney for the evangelicals was not very good right so what do you know around what time that starts um I don’t um I my time is based on what was this morning but um it’s it’s like the last five minutes or so okay she probably reserved about five minutes maybe go back supre Court’s decision in a Taber squarely reject allege that by reference is it okay if we include K or not well I’m gonna give you five minutes I think that’ll be enough we’ll see okay we’re skipping the Amicus brief and we’re going straight to K’s final words wait do we want any comments on on the tithing thing make really quick her Julia well I’ll just say again you know he said he said that this was clear if you listen to hinkley’s statement but again and it wasn’t clear according to the statement that he’s actually talking about like this distinction between tithing and invested tithing Reserve

1:34:01 funds or in invested Reserve funds isn’t clear in that statement by itself it’s only clear when you read it in conjunction with the statement hinley had made like it’s something like 12 or 13 years before that and I just think that’s ridiculous like if you clicked on like you know a a terms and conditions page and you had you had clicked on something 12 years earlier that’s the effect of what the church is saying is like that as long as you understood the terms maybe possibly 12 years before that that you should have had that in mind I just think that’s ridiculous no one can look at that statement that is the substance of the the Hinkley lawsuit and again we went through that in depth in our podcast back in July um no one can look at that statement in isolation and tell me that they walked away from it with the understanding that tithing funds were just not going to be used period Hinkley was like saying it with

1:34:54 that end in mind I’m almost positive and that’s one of the things about these individuals and about church leaders behavior that gets so frustrating to me is their behavior is so predictable they often have a problem with like out andout lying but they have no problem was saying things that are super super misleading that will give people a false impression but not out andout lie and that’s the thing about Hinkley statement that really bothers me and why I hope the Huntsman lawsuit has legs because the end result is simp simp that that churches shouldn’t be allowed to lie while soliciting donations it’s it’s just as simple as that guys I understand you know the last time we podcast about this I got a lot of push back even here at work like I got people who called my office trying to get me fired calling me a religious bot someone who wrote me a 17-page letter telling me how I don’t have any understanding about the second

1:35:46 amendment’s protection of religious freedom and you may be thinking wait a second doesn’t that actually fall within the scope of the First Amendment and you’d be brighter than the person who spent PES writing me about how awful I am but that’s that’s I guess my takeaway is like all we want is for the church to tell the damn truth why is that so difficult for members to square like are we really asking for that much if the church is asking for funds and saying we’re not going to use these funds that you give us for this commercial interest project why is it so hard to hold them accountable for the fact that they did without people knowing that’s all these lawsuits have to do with yeah so so the judge was saying he’s saying that people there’s tithing and then there’s the enzy there’s the the temple things that they do with tithing and then there’s the other things and he’s saying it’s all the same and then the

1:36:36 the the uh Jordan was saying I don’t think that’s consistent with the record so he’s trying to say it’s it’s different can you just summarize what he was trying to say well he’s saying that the interest was used in to build and uh to build the mall and not the actual principal tithing okay so it’s principal interest that he’s arguing he trying to say that from hinkley’s statement alone that hinley said we wouldn’t use tithing funds but that what ultimately was used was invested tithing Reserve funds and that that was apparently permissible again the only way to really like have that in mind was to have this statement that hinley made like 12 11 13 years before he made that statement saying we’re not going to use tithing Reserve funds where he talked about here’s how the Church runs its finances that’s that’s what he’s talking about is that he’s basically saying you know the the plist are pointing to this affidavit from David neelen saying they co-mingled everything they used everything the same

1:37:37 way they treated it all as tithing and he’s trying to say well no like you know maybe this disaffected member he also has to like get that dog whistle out right but that that’s what he’s talking about Julia is he’s trying to say Hinkley didn’t make misrepresentations because guess what the legal word for misrepresentation of that nature is it’s fraud and that’s that’s what he’s talking about that’s why he’s trying to save that statement yeah gotcha yeah it seems like he’s trying to argue for the right to mislead the members any way they want to you know what I mean I mean he literally was asked is there any limit and he said no there’s no limit on what the church is required to teach or not teach or emphasize it’s you know but yeah yeah and I really like Kay’s response to him just her whole section was really good uh that we’re about to listen to that we’re about to listen to yes all right all right let’s do it

1:38:32 let’s pull it up and and hear how K responds Jordan’s points your honor um we did absolutely as your honor pointed out it was in the early part of the second amended complaint alleged that by referencing um exhibit five of Mr David neelon who was an employee not just a disaffected member of enine peak advisers where he says that um the president of anon Peak advisers Roger Clark is the one that said oh we consider it all tithing and uh and um that we have to be careful because we don’t want them to know what it’s used for meaning the commercial Investments That is a quote and that’s in in his affidavit that’s actually a paraphrase but it’s in his affidavit that they didn’t want the members to know what the tithing was used for and the problem here is that when je when um president Hinkley in 2003 at April conference says that we’re going to use in we’re going to use hang on investment income from reserves they

1:39:28 don’t say from tithing reserves they still it’s very vague it doesn’t reference tithing uh two of my three clients are female and this was said at a a priesthood meeting where only men were allowed to attend and it they claim it was later published in the enzyme but but um still it was a very big the whole statement was made so the women wouldn’t have even heard the statement that we’re not going to use tithing for commercial for commercial uses that wasn’t heard by the women either that’s right they they no they heard in general conference in April of I believe it’s 2003 that president hinley said no tithing will be used for City Creek Mall and uh and it wasn’t it when it was made at that later event president hinkley’s um Proviso that we can use investment income actually actually it was two times in the 1990s your honor uh when President Hinckley used the earned uh interest on invested reserves that was in two uh two times in the 1990s at priesthood meetings where women weren’t allowed and then it was about 10 years later in 2003

1:40:35 or four where he said at General Conference where my clients attended and heard or read it that no tithing was used for City Creek and um did not Define what investment of on reserve income he use did he use that term income on invested Reserve I think he did but he didn’t Define it and so again we go back to me my clients had the idea because it was fostered by the locals the local W leaders that um that TI that the church because it has these profit making subsidiaries um that it was from the profit making side of the church there’s the profit making side that’s under the corporation of the bishop brick and then there’s the spiritual side under the corporation of the president and so these are pretty much separate entities and uh and we come to find out in 2019 that all the fs are co-mingled and we did allege that um contrary to what Mr Jordan said um so I just may get to the Crux of the matter is is that we understand that Ballard prohibits the interpretation of Doctrine we cannot

1:41:30 overstep into the inner workings of the church to interpret Doctrine we’re not saying that that God you know inspired Joseph Smith we’re just saying we can’t litigate that in in accordance with Ballard but we are saying we are challenging the application of Doctrine they have not identified exactly what religious freedom they’re trying to protect and it sounds to me like they’re trying to protect fraudulent activities by concealing things that are very very important material facts material artifacts from members and and the First Amendment doesn’t protect that and under either religious clause in our opinion and that’s our argument the other thing as to Mr Sher is that um none of these other churches that he’s talking about he made a reference to the Shroud of Turin well maybe they do have it and it wasn’t disclosed we don’t know but they haven’t admitted as much there’s no admission and and there’s no indication

1:42:17 that there was a committee formed to propagate what’s basically gardo this is why Elder Oak says that the church cannot apologize because as soon as they come clean or they apologize then there’s the admission of fault and and then they can be sued is that like law advice 101 Colby never apologize well there are different lawyers that give you different advice I don’t give that advice um because because because you’re traumatized by your church I didn’t have a church court they never invited me no church of origin Church of origin Church of origin that’s right yeah that’s right I want to point also no but you said you don’t give that advice I was kidding I didn’t mean to interrupt you but remember no I you’re right herard that that’s one of the reasons he takes these like ridiculous positions but again like the downside is just like tell the truth so like truth I don’t have to deal with that you know no but if they apologize for misleading people and admit that they misled people knowingly doesn’t that then leave them liable for other

1:43:22 lawsuits because now they’re admitting fraud basically it would depend a lot upon the conditions of the apology um I honestly think that D Oaks opinion on offering apologies has a lot more to do with d Oaks as a person than D Oaks as a lawyer if you want my honest opin okay not all lawyers I guess would give that advice that D Oaks has but D Oaks is certainly given it so there you the real question is what should the Church of Jesus Christ be doing right um is the real question I be avoiding lawsuits or should be doing the right thing right Matt there’s another thing in Matt Harris’s book where he pointed out in the 90s when people were starting to give um black members of their churches just any general church that more freedoms or membership U capabilities where they were different churches were offering apologies to them very public apologies very sincere but the the Church of Jesus Christ L Saints never did that and I just think that’s like the church should have done it they didn’t do it and maybe the reason why is because they didn’t want to be sued like

1:44:27 I don’t know but I just wanted to point out that other people have apologized for their harmful teachings yeah and there are even Protections in the rules of evidence for like apologies or fixing problems after the fact that can’t then be used against you in court so this idea that you know that’s where D O is getting it from I don’t think so I think really he’s just well I won’t tell you what I think he is he’s an apostle of the Lord Jesus Christ according to him all right should we should we finish up I loved it that she was making making this point I think it’s really important she’s saying what religious Doctrine or belief are you know needs to be protected here it it it’s just like it’s just like the proclamation on the family we learn was not a revelation it was literally some legal maneuver to try and establish a Doctrine prohibiting samx sexuality or transgender uh identity um you know expression uh that you needed to have

1:45:30 some way to codify your Doctrine because there isn’t a revelation about it and so they’re creating Doctrine and Theology and beliefs that really aren’t historically Mormon so that they can then have a legal defense it’s really frustrating right yeah it was to give them enough interest to intervene in certain cases that’s literally what it was created to do right but in this case they’re trying to protect their right to deceive and mislead people they’re not defending Faith or baptism or repentance or or you know belief in God or in afterlife or even in the Book of Mormon they’re they’re literally just wanting to protect that’s a good point their ability to deceive yeah or or how about how about we have a religious freedom case dedicated to like beliefs about Usery right right usy was this Old and New Testament Practice against charging interests to people how come how come religious freedom is never about lending people money and allowing them to pay it

1:46:34 back without interest it’s always about discrimination against uh like bination laws it’s always about discrimination or it’s about the right to defraud people with no consequence like why is it only always those things and I guess I’m I’m kind of straw Manning to be fair there are good religions out there that do lots of good things but man my religion of origin sure gives me a lot of complicated feelings about no you could you could just if you hear religious freedom in 20124 you could replace it with bigotry or fraud and and that’s pretty much what they mean when they say religious freedom yeah yeah is that fair unfortunately yes I think that is fair because it’s never like genuine expression of belief right well no one no one’s persecuting people in the US for genuine expression of belief yeah yeah not that I know of all right we’ve got like one minute left let’s go and play it untruth just as boy K Packer said we have to tell the truth but we don’t have to tell the whole truth and that was back in the 80s and he was an

1:47:36 apostle for the church and that that’s their that’s their that’s in our second amend of complaint and that’s their whole um sort of they go along with that they believe that and and even Mr Jordan said that he believes that religion should be able to conceal anything intentionally conceal anything and I don’t think that’s the first amendment law and I think that is where Reliance comes into play material emissions are a substitute for Reliance here because the material emission in cases of material emissions Reliance is inferred and that’s what we’ve done in the RICO case and I think I’m over my time well I also think you’ve discussed all the issues that came okay so thank you very much thank you um thank you Council Council excuse I thought that was a pretty strong conclusion Colby what’ you think no I thought thought her end was great I thought she really got comfortable it it also shows a real skill to respond to the other side’s arguments and incorporate them into what

1:48:32 you’re saying particularly in response to a question so I thought that was really great um really not I mean kudos to her I’m sure it’s a difficult thing to do to go in front of three judges and be answering questions but at the end you’re literally arguing against these guys who are uh wanting to commit fraud and and say that it’s okay um you know it’s kind of ridiculous and it does get people fired up um it doesn’t you know there’s this saying that pigs get fat and Hogs get slaughtered and if you want my kind of like overall conclusions I I like the K ended with highlighting that with them basically saying hey they’re saying there’s no limit on this you’ve got to do something about this because while I do think the law tends to favor the church’s position in this I really do I think actually their taking things too far may be the thing that ends up either having the pendulum swing back

1:49:28 just through like public support of like hey religions can’t be frauding people with no consequences or it may cause the panel to decide to go against what judge Shelby decided in this case in the first instance yeah so your prediction Colby based on the I mean the only one only one of the three judges was really talking right it’s difficult for us to say because I don’t know their voices well enough and they were all men okay there was a no the three of talked but there was one that talked the most thing oh go go ahead kby what’s your prediction sorry I was just trying to answer your question I think my big uh by big takeaway is I think the church is likely to Prevail here and the reason is because unlike the Huntsman lawsuit and unlike the Chappelle lawsuit which is just starting both of those lawsuits were very careful about not implicating the First Amendment like I said earlier none of the four judges that looked at the Huntsman case thought that the case

1:50:28 implicated the First Amendment at all the church raised those grounds and every single judge who looked at it including the ones that ultimately cited with the church there were two they said no the First Amendment isn’t implicated here and I think because of that that more targeted approach is more likely to succeed than this case which does bite off some at least arguably according to judge Shelby and some of the questions seem to indicate from the panel does bite off some of the First Amendment piece however I still want to say I I think that pigs get fat Hogs get slaughtered piece is something that’s important to keep in mind because the other thing that people need to understand about the legal system is things swing back and forth all the time um we’re experiencing a lot more change at the federal like scotus level uh Supreme Court of the United States level than I wish we were but the reality is

1:51:16 that this is the way things have gone for a long time things swing back and forth back and forth back and forth and so you know it’s entirely possible that cases like this where the church takes things too far and basically says there’s no limit to our protections under the First Amendment we can just full on Def frud people and it doesn’t matter is maybe that ends up swinging the pendulum back I don’t know um my other kind of takeaways are you know just to bring people back to that case we talked about that they talked about a few times this church autonomy Doctrine um if you’re suing a church for something that you could sue another Organization for it’s likely to or it’s more likely to succeed more less likely to run a foul of the First Amendment and that’s one of the reasons that I do think um that the Huntsman lawsuit and the the Chappelle lawsuit which are more targeted do have a better way the the

1:52:05 last thing and I don’t want to be a downer again but the last thing is that even if Gaddy were to Prevail at the 10th circuit the church can still appeal the 10th circuit decision either to have an onbon rehearing like we’ll talk about on Wednesday for the Huntsman case or they can always appeal up to the federal Supreme Court of the United States like the the top scotus and it’s just a reality that the federal scotus right now is a 63 conservative majority and has in the past two years overruled lots of precedent that set limits on First Amendment protections there was the case of Kennedy the Bremerton School District and the masterpiece cake shop decision uh the 303 creative decision all of those indicated really really strong support for Religious Freedom so that’s the other reality that I I hate to be a doubter about but even if Gad were to Prevail I see the current makeup of the Supreme Court siding with you know religious freedom and siding with

1:53:02 broad First Amendment protections but again one of the Geniuses about the American system is that everything can be changed including the First Amendment rifra state state laws like the religious freedom restoration act are exactly that and in reality I think maybe it’s time that the pendulum swings back a little bit the other direction says that you know religious institutions don’t have this license to just you know do whatever they want yeah do you have a prediction herard oh go ahead herard oh yeah I think I I said with kby the only thing I would say I would add is that it would be amazing to have a church lawyer arguing in front of the Supreme Court of the United States that religions should be allowed to commit fraud and they should be allowed to conceal and hide evidence and just tell their members whatever they want in order to keep membership and it would be it would be just great the the the new news media coverage of that and um and

1:54:04 just overall the the arguments would be amazing to just display the um churches the the re the reality of the church um in a national level yeah I I hope the Supreme I hope this gets appealed to the Supreme Court and I hope this gets argued in front of the Supreme Court that would that would be legendary like the Smoot hearings right oh yeah for sure Julia any final Thoughts From You Julia well I don’t know if I have any predictions where this would go but I think this really shows the church’s priorities where they want to continue to hide their history they don’t believe in informed consent and they want to control the narrative like this is what they’re trying to push for and like even if like even if it doesn’t go anywhere that we’re seeing what the church really cares about and they’re and they’re willing to use any means necessary to to deceive both those judges and the membership and that they’re literally going to fight for the right to deceive the membership that’s why I think this

1:54:59 is significant even if it’s going to go nowhere and that’s why we should be sharing it and talking about it and publicizing it and I want to encourage everyone listening subscribe to Mormon stories podcast on YouTube and on Facebook and Tik Tok and Instagram comment share this like it and and start a conversation with your family members and ask them if they have any thoughts on whether the church has the right to deceive its members and if they think like this this attorney this lawyer for the church was upholding their understanding of what the church taught us all about what what honesty really is because I don’t think this attorney I think this attorney acted in a semi- effective way as an attorney to try and muddy the issue but I don’t think he he um I don’t I don’t think he was a super acted with with a high degree of Integrity in terms of his arguments that’s just my opinion yeah I think there could be a podcast a whole podcast

1:55:56 um dedicated to analyzing uh the Loy Church’s lawyers arguments in for the from courtrooms I think people would be appalled at the things that they oh yeah for sure they argue and at the end they’re representing a client right I think the church I mean we know Lori valow did not allow their lawyers to use any kind of defense that would disparage Chad dbel and the church could do the same with her their lawyers and tell their lawyers you know you’re not allowed to say in court that we that we should be uh permitted to commit fraud uh it’s evidently that the church is just giving them a free pass to argue whatever they need um in order to to to win and and that’s that’s a little bit disgusting I think yeah for sure all right well Colby so Wednesday uh I guess James huntsman’s uh lawsuit is going to get its uh app pellet hearing out of San Francisco it’s going to be live streamed and uh so join us on Wednesday afternoon

1:57:03 to hear whether that case is what returned to uh return to trial what are what’s the verbiage there what’s the yeah it would be remanded to to basically proceed with trial um the again the church does have the option there even if they lose at the onbon um rehearing which is on Wednesday they do have the option to attempt to seek a rid of sersari which is how you ask the federal Supreme Court to hear your case um so they would likely do that um whether the court would or wouldn’t hear and whether you know what they would decide if they did hear the case is always interesting and and I do think you know to to come back to your comments John and to Hero’s comments um when we’re talking about I I’ve tried to keep it very clear when I’m talking from my legal perspective and I’m talking from my my person perspective and that’s the other thing I guess I want people to to take away from this discussion is the fact that the church may prevail here I think they probably

1:58:01 will doesn’t mean that it’s still not something worth talking about and doesn’t mean we can’t still have those conversations about ethics and morality and acting like the church asked us asked us and taught us to act um because there are other remedies that we can have that aren’t just in courts of law um so that’s kind of my closing thought I guess the only other thing I’d say is yeah we’re excited to to talk about the Huntsman lawsuit on Wednesday and I promise I’ll be a little bit more optimistic because I do think that has longer legs than the Gaddy case and it’s a busy week because we’re also going to be doing part three of our coverage of the Hulu uh hit Smash series Secret Lives of Mormon wives and Nemo’s getting excommunicated on Thursday we’re going to be live streaming a live vigil to support Nemo I don’t think we planned on it being such a busy week but that just the way it’s going to be um CRA short thank you for that Super Chat donation

1:58:57 he writes have some of my tithing that I haven’t paid in a decade he’s donating that to Mormon stories put it to actual good use love you Mormon stories thank you Cay short one for that Super Chat donation we also uh received another um Super Chat donation from gorf so thanks gorf and thanks to everyone who donates to Mormon stories the open stories Foundation we couldn’t do this without you if you want to become if you value this type of programming if you want to see it continue we do pay our participants please go to Mormon stories.org click on the Donate button and you can become a monthly donor and we’ll keep providing this uh type of content all right well uh herard Colby Julia any last words yeah this is super interesting to me I really like this yeah my one last little thing John if you don’t mind is uh people of teased me before about being the pro most prolific X Mormon podcaster without a podcast and not going to be I’m still happy to join Mormon stories panels or panels on other

2:00:01 channels uh regarding Mormonism but I actually will be starting in conjunction with my my wife who’s helping produce and run things in the background I actually will be starting in about the next month a uh YouTube series dedicated to legal education and helping kind of explain some of these legal scenarios legal terms legal jargon um and really walking Point by Point through big uh Federal Supreme Court cases that have helped shaped our Civic institutions and help basically explain those things to other people I’ve hinted at that on a few other channels so I thought I’d just do it here if you don’t mind I love it what’s it we’re still trying to finalize a name but I’m I am really partial to common law uncommonly explained because the idea is we want to talk about you know our Civic institutions and how they’ve evolved the way they have because there really is a method behind the madness well when you get the name and the link give it to Julia she’ll put it in the description in the show notes and then

2:00:57 people can click on it if they listen to this episode in future weeks and years great all right you do great work thank you Colby and herard and Julia and Maven thanks for helping make today possible yeah yeah sure all right we’ll see you guys later in the week and thanks everyone for join us today stories uh good job to K biringham and her legal team and and the plaintiffs for trying to fight uh deception and fraud we we appreciate that as as we do all all the plaintiffs in all these cases and the the attorneys that represent them uh we think that Fraud’s bad and we think that uh fraud should be prosecuted so anyway uh thanks to everyone for joining us today on Mormon stories thanks again for the donors thanks for everyone who commented please subscribe to this channel like it share it comment on it and uh thanks to those who donate and if if anyone wants to become a monthly donor again you can do that at Mormon stories gmail.com sorry at Mormon stories.org click on the Donate button become a monthly donor if you have

2:02:00 feedback for us go to our new website there’s a feedback form you can fill out if you want to be a guest on Mormon stories podcast you can also click on the new application form and apply to be um on the show uh we uh we always love uh new guests if you have feedback please email us at Mormon stories atgmailcom we’d love to hear from you um be good to each other be kind to each other and we’ll see you all again soon on another episode of Mormon stories podcast take care everybody