smac97

I can see how smaller "pay as you go" churches and charities may lack the means and/or desire to maintain an endowment fund, but some larger churches and charities routinely set aside surpluses (donations exceeding immediate operating needs) and invest them prudently. Plenty of sensible and appropriate reasons for this, such as planning for long-term sustainability (to weather economic downturns, fund future projects (e.g., building temples, schools, church programs, humanitarian/charitable work, etc.), or to provide ongoing support when donations fluctuate), wise stewardship (the Parable of the Ten Talents), and so on. For the average small local church or charity, investing donations is uncommon. For larger denominations, well-resourced nonprofits, universities, hospitals, and some major religious organizations, it is common and prudent. The bulk of tithes and offerings are used directly to sustain the operations of the Church. The speculation about the Church's other income is interesting, but still speculative. What the Church should do with its accumulated wealth is indeed a challenge. You and others (such as Teancum) have come up with proposals that are facially appealing (such as a rote "spend{ing} 5% of their principal on their philanthropic mission" rule) , but perhaps not practical or prudent if put into practice. I have previously characterized this idea in provocative terms, but I have lately been working on turning over a new leaf, so I won't re-visit that characterization (and will, instead, retract it and apologize for it). In recent months we have seen substantial evidence of widespread corruption and malfeasance in NGOs and charitable organizations. A sampling: The Erosion of Trust: How Scandals and Systemic Failures Have Transformed Public Perception of NGOs Beyond the Bribe: Corruption and Fraud in Local-Level NGOs Biggest Nonprofit Scandals in Recent History The dark side of giving: Exposing charity fraud A Timely Warning About a Projected Rise in Charity Fraud ‘Everybody’s hiding their skeletons’: A gloves-off conversation on aid diversion and double standards (Humanitarians should talk about the reality of fraud and mismanagement, aid leaders say.) Fraud Risks in Nonprofits: Trends and Strategies for 2025 When government outsources compassion, fraud moves in Nonprofits: The Scam of the NGO is Bigger Than You Think 76 Fake Charities Shared a Mailbox. The I.R.S. Approved Them All. The Church has, I think, been quite smart to carefully vet its partners in philanthropic/humanitarian efforts. From 2020: What the Presiding Bishopric has to say about the finances of the Church and the faith of its members (Emphasis added.) The Church is not alone in facing challenges to large-scale financial support of philanthropic/humanitarian efforts: Billionaire Philanthropists Have Discovered a New Way to Give Away Their Fortunes An interesting challenge, to be sure. Okay. But the psychology behind this is eyeopening. 14 years ago, Craig Paxton correctly explained how the mall was financed, and the “overwhelming consensus” here was he was saying offensive anti-Mormon lies. I just don't think you are accurately stating/characterizing what the denizens of this board said/thought in 2012. For example, Craig said this: "It is disingenuous for the church to claim that no tithing funds were used to fund the City Creek Mall." Also Craig: "Classic Money Laundering...So can the Church really claim that they didn’t use tithing funds to fund the City Creek mall? Ummm I suppose so…but is it really an honest statement to claim such or is the church just being disingenuous?" You are characterizing this as Craig having "correctly explained how the mall was financed." I think most Latter-day Saints took exception to his denigrating characterizations ("disingenuous," "money laundering," etc.), and also with the "indirect" use of tithes argument. Mola Ram: "Acutally yes, the church can claim it because they did not." Pahoran: "No, it's just truthful {for the church to claim that no tithing funds were used to fund the City Creek Mall}." Cobalt: Jeff K.: "The question of tithing money tied to a mall is a red herring that still has not been proven." Minos (responding to Craig) : "Those are unpleasant accusations. You do need to follow board guidelines and support them." JAHS apparently had some qualms about the concept of investing excess contributions. Cobalt commented: That's how it would be used in a "rainy day," but until the rainy day, the money has to be put somewhere, and the church probably doesn't want to just deposit it with bankers. They'd rather make more lucrative investments in real estate, etc. And so on. Some Latter-day Saints may have had qualms about the Church funding City Creek. I think Craig's inflammatory and accusatory and inaccurate ("money laundering") framing of the issue is what provoked most of the Latter-day Saint commentary. Craig said this: "It is disingenuous for the church to claim that no tithing funds were used to fund the City Creek Mall." Also Craig: "Classic Money Laundering...So can the Church really claim that they didn’t use tithing funds to fund the City Creek mall? Ummm I suppose so…but is it really an honest statement to claim such or is the church just being disingenuous?" "Disingenuous": "Money Laundering": Can you see how some might disagree with your bland characterization of "Craig Paxton correctly explained how the mall was financed"? It seems he was doing quite a bit more than that. I think Cobalt, and I, and most other Latter-day Saints did not dispute the general concept of "Member Pays Tithing --> Tithing in Excess of Current Needs is Invested à Investments Earn Return --> $$$ From This Return on Investments is Reinvested in the City Creek Mall." Craig and Cobalt were both correct on this point. They were both correct because of the information they had from public statements made by Pres. Hinckley, such as his 1991 remarks cited by Cobalt: Based on this, I surmise that disagreement with Craig arose less from his aligned-with-Pres.-Hinckley's-remarks summary of the Church setting aside a percentage of its income to build reserves, and more from his inflammatory framing of that point. That is, I think most objected to and disagreed with Craig accusing the Brethren of being "disingenuous" and engaging in "money laundering." I think the disagreement comes down to presuppositions you have (such as "indirectly using tithing money is still using tithing money") that Latter-day Saints do not share. Thanks, -Smac

I guess I don't see the implication of "wrong" or "inappropriate" you do. The Church's explanation, cited by the Ninth Circuit, is shot through with references to the Church investing its reserve funds (which funds include tithing funds) : "During the time the Church was developing City Creek, the Church primarily invested its reserve funds through a separate entity called Ensign Peak Advisors, Inc. Ensign Peak held both reserve funds and earnings on invested reserves. The Church used Ensign Peak funds to finance the City Creek project." "The Church contended that the City Creek project had been funded with earnings on invested reserves, not direct tithing contributions, and that this was consistent with its public statements." "{Paul Rytting} stated that all the funds allocated to the City Creek project came from earnings on the Church’s reserve funds invested by Ensign Peak, meaning that no principal reserve funds (i.e., funds taken directly from Church members’ tithing contributions) were used." "Although the Church stated that no tithing funds would be used to fund City Creek, it also clarified that earnings on invested reserve funds would be used. The Church had long explained that the sources of the reserve funds include tithing funds." "President Hinckley qualified the assertion that tithing funds would not be used by noting that earnings on invested reserve funds would be used." "{Pres. Hinckley's statement} drew a distinction between principal tithing funds, coming directly from Church members, and earnings on the funds that the Church sets aside from its annual income (which includes tithing funds)." "Because each relevant Ensign Peak account held enough earnings on invested funds to cover the funds appropriated for City Creek, any commingling of principal tithing funds and earnings on invested tithing funds cannot support Huntsman’s fraud claim." "Finally, the term 'earnings of invested reserve funds' was not so ambiguous that the Church could have expected or intended its relevant audience—here, Huntsman—to misunderstand what it meant. ... {T}he Church would have expected Huntsman to be aware of its explanation that reserve funds included tithing funds." {From the Bress Concurrence}: "There is no dispute that only earnings on invested tithed funds were used to finance the project; the principal on the tithed funds was not used." The Church has been investing tithes for many years. That the Church chose not to use tithes to fund City Creek does not mean that investing tithes is per se "wrong" or "inappropriate." "Troubling" is, I think, a possibility, but that would be regarding this specific project, not investing tithes as a general principle. Habit Ten of the Hollis book suggests that we "Embrace the Discomfort of Non-Closure." I am okay with you and I disagreeing on this issue. Thanks, -Smac

All eleven judges, yes. And not just the arguments, but the evidence presented by the Church, and the corollary lack of evidence presented by Huntsman: It's not like this case was a close call. A unanimous decision from the circuit Huntsman chose because he felt it would be most advantageous to him. And the case was adjudicated on the factual merits. Phrases like "No reasonable juror" and "Huntsman has not presented evidence that the Church did anything other than what it said it would do" demonstrate both the strength of the Church's factual and legal position and the weakness of Huntsman's. The Church also won a unanimous decision in the Tenth Circuit. And before Judge Shelby. I think the credit belongs to the attorneys, sure. But also to the Church, whose conduct was within the law. And also, conversely, the very poor lawyering of Huntsman's and Gaddy's lawyers, and whomever was representing the consolidated plaintiffs before Judge Shelby. I spent nearly ten years representing mortgage lenders and servicers. My success rate was, I think, probably north of 97%. I'd like to think it was because I was a great attorney. And I did do a pretty good job. But then, all that litigation centered on loan documents that had been heavily vetted and well-drafted, and loan servicers overwhelmingly did a good job at servicing loans. But most of all, I won so often because the legal theories I was arguing against were factually and legally quite poor. I think the same should be said about the tithing cases. I don't follow. The Ninth Circuit quoted the five public statements centering around Pres. Hinckley's statement. The two declarations were not presented to the Church, but I don't see how they were "different than the presentation the church gave the members." We can't see what "most members" believed, but we can look at what members of this forum said, because we did talk about it. We seem to have different perspectives about what the denizens of this board had to say about Pres. Hinckley's remarks, years after the fact. And I'm not sure what sort of probative weight the opinions of the denizens of this board have about the merits of Huntsman's lawsuit. As an actuary, I find that statement meaningless. Actuarial mathematics is based on the concept that money grows with interest. Remember when I took issue with Sam Brunson claiming "every financial endeavor that includes both principal and income on the principal distinguishes the two." Two illustrate why, I told you about how two of my friends happened to both testify on Capital Hill together, so I watched the hearing, and happened to remember this interesting question: Could you give me, the insurance industry in general, how much of, say, auto insurance, health insurance, and long-term insurance, how much goes for claims? In long-term care insurance, the company relies on interest income to pay claims, and it would be misleading to distinguish between principal and interest in this question. Professor Cohen interpreted "premium" as meaning "premium plus accumulated interest," and that is exactly the right way to do it. Citing the American Academy of Actuaries: Mathematically, dividing the present value of claims by the present value of premiums (both discounted to policy issue) is identical to accumulating both premiums and claims with interest until the end of the policy and dividing them. The point with all of this is that to honestly evaluate whether "most of the premiums were paid out in benefits", you can't look just at premiums--you also have to look at premiums and the interest income the premiums generate before it is spent on claims. You have to look at it that way to come up with a number that is understandable, meaningful, fair, and comparable. The value of money is intrinsically linked to time. Interest is the mechanism that links the two. So it isn't the least bit contradictory for somebody to say, "I gave the Church $200,000 over the last 20 years. The accumulated value of those donations is $330,000." That is how I look at it. But to me, it was always quite obvious what the Church was really doing. What the Church "was really doing" and what the Church told the public had no substantial distinction between them, quoth the Ninth Circuit. That doesn't answer the question. I can understand why somebody would be concerned with the church using its resources on a commercial venture in downtown Salt Lake City, but if the Church makes the decision this is a good use of resources, why say principal can't be used but interest can be? I don't think the Church said "principal can't be used but interest can be." Rather, Pres. Hinckley said: Can you help me understand how you get "principal can't be used but interest can be" from this statement? Are you possibly focusing on Bishop Burton's statement (“None of this money comes from the tithing of our faithful members. That is not how we use tithing funds.”)? Here is the thing. The Church did "use tithing money indirectly." That is an undisputed fact. I think the "indirect tithing" concept is disputed. I am not sure this is an accurate summary. But I'm not particularly interested in establishing or refuting what a handful of Latter-day Saints on this board thought in 2012. Thanks, -Smac

I'm sure a lot of money was spent. Well, the nice thing about the American legal system is that it has a strong adversarial component. So when it comes to compiling "basket{s} of evidence," both sides can do so if the case is litigated on the merits. That appears to have been the case here. The Church had substantial evidence in support of its position, and Huntsman did not. The Federal Rules of Evidence are indeed intended to "curate" (that is, "to select, organize, and present content, items, or information, typically with expertise, to provide a polished or meaningful collection") evidence. Is your "carefully curated" comment intended to suggest that the Church hid or obfuscated about relevant evidence? If so, could you elaborate? Or am I off base here? I'm not sure we are well situated to speculate on how "most Latter-day Saints interpreted {Pres. Hinckley's} remarks." Moreover, the Ninth Circuit held that "no reasonable juror" could find that the Church made any misrepresentation about the funding of City Creek. Now, we would all say, "The money came from the Church's reserves that are held by Ensign Peak Advisors. The Church operates on a fraction (e.g. 90%) of its tithing revenue, and the remainder is put into a "rainy day fund" it calls its "reserves." The money in that fund grows with investment income and new tithing revenue. The money for the mall came from interest earned on this reserve fund (or if you are a pedantic actuary, you'd say, "the $1.4 billion for the mall was a lot less than its annual investment income, so rather than reinvesting $1.4 billion of its investment income in Nvidia etc., it was invested in the mall. In that sense, the money came from investment earnings and not directly from tithing)." That's what we would say now. But how many Latter-day Saints said that then? I think the Latter-day Saints would have referred to Pres. Hinckley's remarks, such as this one: And this 2003 statement by Presiding Bishop Burton: And this 2006 statement in the Ensign: And this 2007 Deseret News quote: And this 2012 statement attributed to Keith McMullin: The Ninth Circuit reviewed these and concluded: This seems fairly straightforward. Huntsman's view is summarized as follows (from the Bress Concurrence) : What are your thoughts about this last bit: "only earnings on invested tithed funds were used to finance the project; the principal on the tithed funds was not used"? I'm not sure about that. Pres. Hinckley said tithes were not used. I believed him. His comments, and the other ones cited above, have been ratified as factually true by the Ninth Circuit. My thinking has not changed at all. I don't think I ever believed that. I have never thought it problematic for the Church to invest tithes. To the contrary, I think the Brethren would be poor stewards if they had not invested tithes. I think a reasonable argument could be made for Latter-day Saints to be concerned about a substantial investment of tithes in a commercial venture in downtown Salt Lake City, where such a venture would (indirectly) benefit mostly the Utah Latter-day Saints. I also think it would be appropriate for Latter-day Saints to be concerned if Pres. Hinckley had been dishonest in his statements. But he wasn't, so most of us weren't. Not sure about that. The Parable of the Talents comes to mind. Robert F. Smith in 2018: Since the monies and property held by the LDS Church likely all go back ultimately to tithing contributions, all that means is that current tithing contributions are not being used for such real estate investment. However, if the Lord gives some talents to a guy (as in the parable of the talents), and he invests them and expands their value (which the Lord praises), then the original talents have now been exceeded. Even though such monies are fungible, it is also true that no actual tithing monies were used to invest in the City Creek project. The statement that tithing money was set aside as a reserve is simply a way of saying that it was invested and thus expanded in value. The LDS Church no doubt has billions in such reserves, although I haven't read Mike Quinn's recent book on LDS Church finances. Since the Lord himself praises such investment strategies, the Brethren are very wise to create such reserves so that they can then expand them still further. And again here: It is not a lie to say that tithing funds were not used, because they weren't. The LDS Church has long invested monies into real estate and other businesses which produce greater value. That's what investments are for (as in the parable of the talents), to grow the principal. Having done that, one need only use that extra money for further investments. Makes good practical sense, and City Creek is merely one more investment in a long line of good investments. Banks and investment companies do exactly the same thing. Me in 2018: By that reckoning it is a "flat out lie" that I have ever earned any income. My parents paid for all my needs during childhood. I then went into the Army, and then on a mission, then to college, then to college again, and now here I am. But I never would have been able to get to college without my parents' financial support. So my income from my job really isn't mine. It's my parents. Of course, my parents started out with their parents supporting them, so they never made any income, either. And neither did my grandparents, who relied on my great-grandparents, and so on, ad infinitum. By your reasoning, my salary isn't attributable to anything I have done. "EVERYTHING" that I have done or ever will do was paid for by my parents, and grandparents, and so on. That's your reasoning. And it doesn't seem to hold up well. I am reminded here of the Parable of the Talents: ... So let's postulate about this servant. He starts with ten talents. He keeps the original five talents given to him by his lord in one Bag 1, and the additional five talents he earned in Bag 2. The servant then goes out and uses the five talents from Bag 2 to buy and ox and some seeds and a field, and uses the former to plow and sow the latter. He then tends the field, reaps a harvest, and ends up earning 15 talents. The servant now has twenty talents, five of which remain in Bag 1, and fifteen in Bag 2. So the question is this: Did the servant use any of the money from Bag 1 to earn the fifteen talents in Bag 2? Well, no, he did not. He used the original five talents in Bag 2 to earn an additional ten talents, also put into Bag 2. The servant reports as much to the tax collector, who collects taxes on the fifteen talents in Bag 2 (the money in Bag 1 is not taxable under the laws of the land, so the collector leaves it alone). However, let's say that the servant has a neighbor who harbors some genuine spite and antipathy for the servant. The neighbor is looking for any reason, any argument to find fault with the servant. So the neighbor publicly accuses the neighbor of "flat out lying" to the tax collector. The tax collector speaks with the servant, determines that only money from Bag 2 was used to buy the ox and seeds and field, and then determines that since only money from Bag 2 was used for the crop venture, the servant was speaking truthfully and accurately, and the neighbor had borne false witness (perhaps ignorantly). The neighbor, thwarted in his efforts to harm by the servant, is furious. "He lied!" he shrieks. "Full stop!" The tax collector is confused as to why the neighbor is being such a meddlesome busybody and intruding into the affairs of the servant and his lord (particularly since the servant has fully complied with the laws of the land). The collector just shrugs at the neighbor's ranting and false accusations and moves on to the next town. The servant, meanwhile, is preparing the next venture to turn the 15 talents into 25. In the days and weeks ahead, he keeps the five talents in Bag 1, and does not use them for commercial ventures. He does, however, occasionally transfer talents from Bag 2 to Bag 1, as needed. Food for thought. Me in 2019: City Creek can be seen as an application of the Parable of the Talents in Matthew 25. I wonder if DCP had this in mind when he said this: "Semitic peasants catching fish for a living are spiritual in a way that middle class gringos selling shoes or iPhones can never hope to be." He was being ironic, but do you see his point? That there is nothing wrong with seeking God's help in our mortal endeavors? If the ancients could pray over their economic efforts (flocks and fields), why can't we do the same with our economic efforts (in this case, "selling shoes or iPhones")? Me in 2020: I'd say no. The parable of the talents comes to mind. The master gave three servants five talents, two talents, and one talent repsectively. Two of the servants thereafter multiplied the talents, such that they presented the master with, respectively, ten talents and four talents, respectively. The master ended up with fifteen talents, having given his servants eight to begin with. How do we characterize the seven additional talents? Are they the Lord's? Or, in the alternative, are they . . . well, there is no alternative, is there? The seven additional talents are the Lord's regardless of how they are characterized. ... I would think so. Tithes are donations from the members. Profits derived from soundly investing those donations are not donations from the members. Again, consider the Parable of the Talents. Did the master give his servants eight talents, or fifteen? Me in 2021: I disagree. Interest on tithing money is not "still tithing money." And the Church should have used some portion of tithes for "speculative business projects." See, e.g., the Parable of the Talents, the amazing success of Ensign Peak, etc. And it's neither a half-truth nor an outright lie to say that tithes weren't spent on City Creek. Yep. ... First, I think the Church should be "involved in commercial ventures." The Church needs to prudently manage the funds donated to it. The only way to do that is to invest "in commercial ventures." It would be inappropriate for the Church to not invest in commercial ventures. Second, the prudent investment of funds is manifestly congruous with the mission of the Church. The Parable of the Talents and other scriptural provisions about wise stewardship make that pretty clear. Third, I don't think Bro. McCluskey speaks intelligently for "what the general membership expect." Fourth, there is nothing hypocritical about investing money. Bro. McCluskey is essentially declaring that the Church should do what the third servant did in the Parable of the Talents: bury money in the ground and do nothing with it. That . . . did not turn out too well for the third servant, while the first and second - the ones who took the money and invested it and made more - were called "good and faithful." Fifth, the Church can and ought to walk and chew gum at the same time. It can fulfill its four-fold mission and act as a proper steward of sacred funds. Amulek in 2022: Obedience to God's commandment is what I pay tithing for. And, personally, I'm grateful that the Church doesn't take their leftover funds and just bury them in the ground like the slothful servant in the parable of the talents. Me in 2023 (responding to you) : I think it is unwise, even foolish, to suggest - as you seem to be doing - that "sacred" funds of any sort are somehow desanctified if they are invested. That makes no sense at all. The Brethren would be poor stewards if they did not invest "sacred" funds. The Parable of the Talents is worth consideration here. Me in 2023 (again responding to you) : Having been a Latter-day Saint all my life, I feel fairly comfortable in speculating about the many hundreds of faithful Latter-day Saints of my acquaintance. If called upon to assess the funding of City Creek and the Church's public statements about it, I think virtually all of them would reach conclusions substantively akin to those of Robert's and Amulek's and mine above. Moreover, the Ninth Circuit found that "no reasonable juror" could have found that the Church made any misrepresentation. I did not. I find "indirectly" to be an infinitely regressive kind of thing. Because there had been questions raised about it? Because a reasonable argument could be made for Latter-day Saints to be concerned about a substantial investment of tithes in a commercial venture in downtown Salt Lake City, where such a venture would (indirectly) benefit mostly the Utah Latter-day Saints? Because the Church felt the venture had some risk, and so wanted to provide assurances that "principal" would not be used? Those are the ones that come to mind, and that's from someone on the outside looking in. The distinction the Church draws—direct tithing vs. earnings on invested reserves—has held up legally, but critics argue it’s a distinction without a meaningful difference to the average member. That tension may have been why Pres. Hinckley felt it necessary to speak so plainly. Not sure about that: "The overwhelming consensus among the faithful participants (JAHS, Pahoran, Scott Lloyd, Mola Ram, LeSellers, Jeff K., etc.) was that tithing money was not used — either directly or indirectly — for City Creek. They repeatedly rejected the critics’ 'indirect tithing' chain as an unsupported assumption and insisted the funds came from separate commercial/investment sources (ZCMI, real estate, etc.)." The Church could say that it doesn't want to spend more on X this year than it receives in investment income this year. But this is generally a type of mental accounting. I think the Church should be more transparent with its members about its finances. It is an indisputable fact that it indirectly financed the mall through tithing, as defined by JAHS in that thread. "Indirectly financed" is infinitely regressive. And it does not appear to be a concept accepted by the Ninth Circuit. I think most Latter-day Saints didn't really care about the funding of City Creek, and did not need to parse out the particulars of Pres. Hinckley's 2003 statement or the subsequent statements from other Church sources. I think the tithing lawsuits were pretextual and contrived, and not really about "tithing" at all. Anyway, I appreciate your comments. Thanks, -Smac

I think the tithing lawsuits were contrived. I don't think any of the plaintiffs were confused about what Pres. Hinckley said, but they feigned confusion because they used City Creek as a pretext to get the Church in court. I think he did. From the Ninth Circuit: The Ninth Circuit, all eleven of them, apparently found the Church's statements sufficiently clear as to be explaining "that earnings on invested reserve funds would be used," that "the sources of the reserve funds include tithing funds," and that "the Church {explained} ... what it said it would do." I can appreciate your perspective. I think Pres. Hinckley was quite clear in his remarks. He presupposed that Latter-day Saints understood what "tithing" means, and he differentiated tithes from other sources of revenue. I also think "only the critics" had an incentive to misconstrue Pres. Hinckley's remarks, such as by trying to make them seem "fraudulent." I agree that "salary" is well-defined, both by the IRS and in a more generalized sense. I don't think there is much of a dispute about "tithing" either. I think Huntsman's lawsuit was a contrived effort to generate a dispute where none existed. Yes. And those sources of income can be tracked, such that the Church know which of its investments are using which sources of income. For example, from the Ninth Circuit decision in Huntsman: ... Huntsman argues that the Church committed fraud by misrepresenting the source of funds for the City Creek project and Beneficial Life. ... No reasonable juror could conclude that the Church misrepresented the source of funds for the City Creek project. Although the Church stated that no tithing funds would be used to fund City Creek, it also clarified that earnings on invested reserve funds would be used. The Church had long explained that the sources of the reserve funds include tithing funds. Huntsman has not presented evidence that the Church did anything other than what it said it would do. President Hinckley qualified the assertion that tithing funds would not be used by noting that earnings on invested reserve funds would be used. In his 2003 announcement of the City Creek project, Hinckley stated: (Emphasis added). That statement thus drew a distinction between principal tithing funds, coming directly from Church members, and earnings on the funds that the Church sets aside from its annual income (which includes tithing funds). The four subsequent statements that Huntsman points to, which state without qualification that tithing funds were not used for City Creek, can only be understood within the context of Hinckley’s earlier statement distinguishing between tithing funds and earnings on reserves, and they therefore do not support Huntsman’s fraud claim. The Church had also long publicly indicated that “reserve funds” come at least in part from tithing funds. In a 1991 statement, Hinckley suggested that tithing comprises the bulk of the Church’s annual income and budget. In that same statement, Hinckley said that “a fixed percentage of the [Church’s] income will be set aside to build reserves against what might be called a possible ‘rainy day.’” In 1995, he repeated that message, stating that “each year we put into the reserves of the Church a portion of our annual budget.” Because Hinckley stated that tithing funds are critical to the Church’s annual income and budget, those statements necessarily implied that the reserves contained tithing funds. ... Nielsen’s declaration does not contradict the conclusion that Ensign Peak held sufficient earnings on invested reserve funds to fund the project without using principal tithing funds. Nielsen testified that Ensign Peak’s senior leadership and other employees “referred to . . . all [Ensign Peak funds] as ‘tithing’ money, regardless of whether they were referring to principal or earnings on that principal,” and that the approximately $1.4 billion that Ensign Peak appropriated for City Creek came from tithing funds. The presentation slide that Nielsen submitted with his declaration indicated that “1,400mm over 5 years” was withdrawn from Ensign Peak’s “investment reserves” for City Creek. Even accepting the facts asserted in Nielsen’s declaration as true, they do not show that principal tithing funds were used for the City Creek project. Neither Nielsen’s statement nor the Ensign Peak presentation slide distinguished between principal and earnings, so neither contradicts President Hinckley’s public statement that only earnings would be used. They also do not conflict with Ensign Peak’s financial records, which show that Ensign Peak held sufficient earnings on reserve funds to finance City Creek. Moreover, even accepting Nielsen’s account that Ensign Peak employees used “tithing” to refer interchangeably to both principal and earnings, that does not support Huntsman’s claim because President Hinckley drew a distinction between those types of funds in his public statements. Huntsman would have us conflate what Pres. Hinckley differentiated. Huntsman filed suit in California because, per his lawyers, they figured California judges would be more amenable to his way of viewing things relative to the Church. And he ended with 11 appellate judges rejecting his argument, and none accepting them. Could you clarify what you mean here? You described tithing as "one of the Church’s sources of income," right alongside dividends, interest, real-estate gains, etc. But you also said that once the money is in the funds, it’s all "fungible" and spending comes from the funds rather than from any specific source. Could you help me understand how those two ideas fit together in your mind? Is tithing still a meaningfully distinct category once it’s received, or does the fungibility make the original source, for you, irrelevant for tracking purposes? I am trying to see the bridge between the technical accounting reality you’re describing and the legal claims in the tithing lawsuits. From your viewpoint, is the core issue that the Church should have kept tithing dollars in a completely separate, traceable bucket, or that the fungible nature of the money makes the whole conversation about ‘tithing’ misleading by nature? Thanks for walking through that example and the Northwestern Mutual analogy—that helps me see how you’re thinking about this. I appreciate you taking the time to explain the accounting flow so clearly. Just so I’m tracking you correctly: You are saying that once money is received, it all sits in funds and becomes fungible. When the organization spends money (whether it’s a mall project or salaries), it’s spending from the funds, not from any specific source of income like tithing or investment returns. So labeling a particular expense as ‘paid for by investment income, not tithing’ is really just a helpful heuristic rather than a precise accounting fact. Is that a fair summary? If so, I have a couple of questions I’d genuinely like your thoughts on, because I’m trying to reconcile this with how the whole tithing conversation has played out: In your view, is that same ‘heuristic’ standard something the Church should have used when its leaders spoke publicly about tithing funds (for example, when President Hinckley or others described how certain projects were funded)? Or does the sacred nature of tithing create a different expectation for how those funds are described to members? I’m curious how you see the Northwestern Mutual analogy mapping onto a religious organization. With an insurance company, premiums are basically customer payments under a contract. Tithing, from the members’ perspective, is a sacred offering given directly to God with the understanding that it will be used for the Lord’s purposes. Does that difference in the source and intent of the money change anything about how strictly the ‘fungibility’ principle should apply, or is it - in your view - still exactly the same? If all money is truly fungible once it’s in the funds, what would it even look like for the Church (or any nonprofit) to be fully transparent about tithing versus investment income? Is there a way to communicate that distinction that wouldn’t feel misleading under the accounting rules you’re describing? I’m not trying to score points here—I’m honestly trying to understand how you’re connecting the technical accounting reality with the way the lawsuits and the public statements are being framed. Your perspective on this is helpful. Thank you, -Smac

It was not intended as derogatory. I am one of the looky-loos, after all. I did not intend it as disparaging. Thanks, -Smac

Not sure about that. In any event, it is not relevant to the Huntsman lawsuit. I uploaded that thread to Grok with the following query: The response: "They repeatedly rejected the critics’ 'indirect tithing' chain as an unsupported assumption and insisted the funds came from separate commercial/investment sources (ZCMI, real estate, etc.)." "Only a very small number of critics (Craig Paxton, LDSToronto, etc.) pushed the 'indirect tithing' argument, and they were vigorously rebutted." I'd have to go back and look at the particulars, but my recollection is not congruent with what you are saying. In any event, the point is moot relative to the Huntsman lawsuit. I guess we'll just have to agree to disagree. I see his claim as necessarily involving a definitional argument. You disagree. I am okay with that. I don't think that would work in a fraud context. Moreover, the Ninth Circuit still found that the Church did not make any misrepresentation. I think a fraud claim based on an infinitely regressive "indirect use of tithing" claim would have little chance of surviving Rule 12(b) scrutiny, let alone a factually-fleshed-out assessment under Rule 56. Okay. I'm not sure asking about "indirect use of tithing" amounts to endorsing what you are imputing onto the Latter-day Saints on this board in 2012. And in any event, how a handful of self-selected looky-loos may have felt about City Creek in 2012 has no bearing on the Huntsman case or any of the others. It seems to be the argument you are advancing now, though. Am I misunderstanding that? "They repeatedly rejected the critics’ 'indirect tithing' chain as an unsupported assumption and insisted the funds came from separate commercial/investment sources (ZCMI, real estate, etc.)." "Only a very small number of critics (Craig Paxton, LDSToronto, etc.) pushed the 'indirect tithing' argument, and they were vigorously rebutted." See above. As a legal matter, the "indirect use of tithing" is, I think, wholly untenable. I think Pahoran said that. I don't know if his speculation is correct. Well, not quite. The comment was this: "Why is it such a big deal for you or any other believer to just accept that tithing funds were used to fund the mall..." Nothing here about "money {} trac{ing} back to tithing." The response: "Perhaps because it is a malicious falsehood being repeated by those whose goal is to undermine the Church?" Thanks, -Smac

Yep: "No reasonable juror could conclude that the Church misrepresented the source of funds for the City Creek project."

The Ninth Circuit already addressed this: "No reasonable juror could conclude that the Church misrepresented the source of funds for the City Creek project." For myself, I think this was an error, as I don't think the Ninth Circuit should have "reached" this issue, and should instead and held that the Church Autonomy doctrine barred such an inquiry. As it is, though, the inquiry was made, and the Church was exonerated. And on steroids, no less. "No reasonable juror..." The Church also did not challenge the jurisdiction of the federal court in California. That doesn't mean jurisdiction was proper (it almost certainly was not), just that the Church's attorneys elected, as a litigation strategy, to let things stand. In any event, I'm not sure you are correct here. I have not reviewed the summary judgment motion itself, but the en banc decision specifically states: "In the alternative, the Church argued that summary judgment was warranted under the First Amendment church autonomy doctrine." I don't think this is correct. The Church made both arguments: "The Church moved for summary judgment, arguing that it had made no misrepresentations. The Church contended that the City Creek project had been funded with earnings on invested reserves, not direct tithing contributions, and that this was consistent with its public statements." "In the alternative, the Church argued that summary judgment was warranted under the First Amendment church autonomy doctrine." I'm not sure that is correct. First, Huntsman was asking the courts to "look at" the "definition of 'tithing,'" as his case required the courts to define tithing in such a way as to conflate "tithing" with "earnings of invested reserve funds {derived, in part, from invested tithes}." The Ninth Circuit declined to go along with Huntsman's proposal, and instead went with what the Church defined and differentiated. Again, from the en banc decision: I think the Ninth Circuit should not have taken sides on the definitional issue, even though it did in a way favorable to the Church. I think it should have instead applied the Church Autonomy doctrine and declined to adjudicate the dispute at all. Where you see a "blunder" I see a "they showed their hand." I really don't understand what you are saying here. How is this a "blunder"? Their strategy all along was to conflate tithing with other funding sources (such as, for example, "earnings of invested reserve funds"). Rather than a mistake, it was the lynchpin of their entire case. Are you sure? Again, from the en banc decision: "The Church moved for summary judgment, arguing that it had made no misrepresentations. The Church contended that the City Creek project had been funded with earnings on invested reserves, not direct tithing contributions, and that this was consistent with its public statements." "In the alternative, the Church argued that summary judgment was warranted under the First Amendment church autonomy doctrine." Huntsman appears to not have "shifted to the definition of tithing," but rather was forced to respond to the Church's Church Autonomy argument (which, I think, necessarily dives into the definitional issue). Perhaps we should review the summary judgment motions to make sure. I think this sort of gives away the game. The judicial inquiry was not about "how normal Saints would interpret Hinckley's assurances." Huntsman's lawsuit was about what Huntsman thought. I think "what the Church was doing" was "obvious" from the get-go. I don't think Huntsman was ever confused about City Creek, or what "tithing" means, or any of that. I think he had an axe to grind against the Church, apparently about LGBT issues, and used the lawsuit as a pretext to impugn the character of the Church's leaders and the Church as an institution. The closest you could get to a court evaluating "how normal Saints would interpret Hinckley's assurances" would be the consolidated case before Judge Shelby. He never reached the Church Autonomy doctrine or the definitional issue. I appreciate that this is your perspective. I do not share it. We had this same discussion back in 2024 (I am, in my "turning over a new leaf" efforts, omitting the more aggressive/adversarial comments) : ... The "indirect use of tithing" is infinitely regressive. By your reasoning, the most virulent anti-Mormons on the planet are, in some circumlocutory way, "tithepayers." A Latter-day Saint pays a tithe to the Church. The Church uses a portion of its pooled tithing income to subsidize tuition at BYU. A BYU student, whose tuition was subsidized by the Church's tithing income, graduates and starts a business selling widgets on Amazon. An ardent anti-Mormon purchases three such widgets, allowing the BYU grad to realize a profit. That profit is, by your reasoning, "tithing." At the time, you did not address the above point about your "indirect use of tithing" argument being "infinitely regressive." I would be interested to hear what you have to say about it now that you are bringing it up again. No worries if you are not inclined to do so. And yet, they did. And they did because it was the crux of their lawsuit. They could not do this. They were not litigating a class action lawsuit. The case was about how Huntsman, and only Huntsman, supposedly "interpret{ed} {Pres.} Hinckley's comments." And the Ninth Circuit did, in fact, answer this question: "No reasonable juror could conclude that the Church misrepresented the source of funds for the City Creek project." Thanks, -Smac

Some said the money used for the mall was tithing and others said that it wasn't, right? Yes. The sine qua non of the tithing lawsuits was about whether "tithing funds" was used to fund City Creek, and ipso facto what "tithing funds" means. From the above post: I think the Church Autonomy doctrine should have functioned as a "threshold" bar to the lawsuits. "That statement {by Pres. Hinckley} thus drew a distinction between principal tithing funds, coming directly from Church members, and earnings on the funds that the Church sets aside from its annual income (which includes tithing funds)." The entire dispute was about what did, and did not, count as "tithing." Rather than abstaining from adjudication of this dispute (per the Church Autonomy doctrine), the Ninth Circuit weighed in by defining "tithing funds" (the exact phrase Pres. Hinckley used) as "{money} coming directly from Church members," and that it did not include "earnings on the funds that the Church sets aside from its annual income (which includes tithing funds)." I think that is a reasonable definition, as the Ninth Circuit let the Church define "tithing funds." However, even though the Ninth Circuit ended up siding with the Church, I think it erred by "taking sides" on the definitional issue, as doing so contravened the Church Autonomy doctrine. I think Judge Bumatay and the other concurring judges had the better argument, namely, that the Church Autonomy doctrine should have precluded the court from "taking sides" at all. @Analytics proposes that disputes about "tithing" could be adjudicated as being "purely secular." That may have been hypothetically possible had the meaning of "tithing funds" not been in dispute. But it was in dispute, and that dispute was not "purely secular" because there is no way for a "secular" court to adjudicate which of the competing interpretations of "tithing funds" should apply to Pres. Hinckley's remarks without rendering an "ecclesiastical" decision (that is, the Court, rather than the Church, deciding what does and does not count as "tithing funds"). Thanks, -Smac

I wonder if we might both be right in different ways. I’m open to correction here, but my understanding is that the historic legal standard (de jure) for sex-segregated facilities has been biological sex — so a biological male entering the women’s bathroom was technically in violation of the law or policy, even if “passing.” At the same time, I can see how in practice (de facto) someone who presented as female was often undetected or met with a kind of generalized indifference, which allowed them to use those facilities without issue. Does that distinction make sense to you, or do you see the historic status quo differently? I appreciate you explaining your view — this really gets to the heart of our disagreement, and I’m glad we’re talking about it. I quite agree that we should never have invasive searches or genital checks at bathroom doors. That would be wrong and impractical. At the same time, I think the claim that we have “no access” to someone else’s biological sex without invasive testing overstates the reality. For the vast majority of post-pubertal adults, biological sex is highly observable from physical traits — height, shoulder width, jawline, voice, Adam’s apple, hand size, etc. That’s why the historic system worked for generations with very little conflict. Enforcement wasn’t by inspection; it was by signage, social norms, and complaint-driven response when someone clearly didn’t belong. The old status quo wasn’t “use the bathroom that matches your presentation or gender identity.” The standard was biological sex. A biological male entering the women’s bathroom was technically (and practically) out of place under that rule — even if he presented as female and often went undetected. The real proposed policy change is moving from that objective, sex-based standard to self-identified gender as the deciding factor. That’s what’s new, and that’s why I am evaluating it as opposed to returning to the biological-sex rule while expanding single-use/family bathrooms for anyone who wants more privacy. I’m not trying to make anyone’s life harder. I just don’t think we should solve one person’s discomfort by removing the privacy and safety protections women and girls have always had in those vulnerable spaces. Does that distinction make sense to you, or do you see the historic standard differently? I appreciate you explaining your thinking — it helps me understand where you’re coming from, and I agree that for the vast majority of trans people the goal really is just to pass and be left alone. That’s not lost on me. At the same time, I wonder if we are sort of talking past each other on a couple of key points. First, I think there is a fairly broadly-held position that biological women and girls have a legitimate expectation of privacy in women’s bathrooms, locker rooms, and showers. That space was designed around the reality of sex-based differences — not around how convincingly someone presents. When a biological male (even one who passes well) is present, many women experience that as a loss of privacy, regardless of the individual’s intent. Assuming we were to attempt to overcome or rebut or repudiate this position, how would we respond to it? Second, I am concerned that basing access on “passing as the gender of your choice” creates exactly the subjective judgment problem you mention. Who decides what counts as “passing”? Many trans women do not "pass," and biological women would understandably prefer not to become the de facto bathroom police — having to evaluate appearances, confront people, or feel uncomfortable in their own space. That’s why the historic standard was simply biological sex: it’s objective, observable without invasion, and doesn’t require women to make those calls. If we are going to move from A) the historical "biological sex" basis for differentiating who can and cannot go into women's bathrooms to B) laws authorizing entry into bathrooms based on "passing as the gender of your choice," how would we avoid the subjective judgment problem? Third, I think we come back to the "limiting principle" issue as regarding the safety concern: Once the law shifts from biological sex to self-identified gender or presentation, there is no clear, enforceable legal barrier left to exclude bad actors. A predator who wants access no longer has to worry about being obviously out of place — he can simply claim a female identity. That raises real safety concerns for women and children, and it’s not hypothetical; we’ve already seen documented incidents after self-ID policies were adopted. I appreciate your desire to treat trans people with dignity and compassion — I share that goal. The problem isn’t trans people as individuals. The problem is a policy that lets access to women’s and girls’ bathrooms, locker rooms, and showers be determined by self-identified gender instead of biological sex. That removes the clear, objective barrier that used to exist. We’ve seen this in multiple documented cases. In Loudoun County, Virginia, school policy allowed a biological male student (identifying as a “trans girl”) into the girls’ bathroom, where he sexually assaulted a girl; the district was later accused of trying to conceal the assault and even transferred the perpetrator to another school, where a second girl was assaulted. Another recent example is Richard Cox, a registered Tier III sex offender in Arlington County, Virginia. Under the school district’s self-ID policy, he was allowed into girls’ and women’s locker rooms and showers, where he repeatedly exposed himself to women and young girls. The policy made it impossible for staff or other users to challenge him without first engaging in invasive verification. This is, I think, a real-world illustration of the "limiting principle" problem: Once the rule is no longer biological sex, there’s no clear, enforceable line left to keep out opportunistic bad actors. Biological women and girls lose the privacy and safety expectations they’ve always had in those spaces. I realize that most determined predators will always try to find a way in. However, clear, objective rules do deter many opportunistic bad actors. Under the old biological-sex standard, a man entering the women’s bathroom was immediately out of place and likely to be challenged or reported. That created a practical and social barrier. Once the rule becomes “self-identified gender” or “presentation,” that barrier disappears — a bad actor no longer has to worry about looking obviously out of place; he can simply claim a female identity (as Richard Cox did). That shift makes opportunistic behavior easier, not harder. This thread has helped me explore/utilize Habit Two of the Collis book: "Seek Real Learning." We generate knowledge collectively through dialogue, evidence, criticism, and revision—not in isolation or echo chambers. Your comments here are helping me a lot in this regard, and I appreciate it. You are also helping with Habit Five ("Hunt for the Best Argument Against You") and Habit Six ("Be Open to Change"). Habit Ten ("Embrace the Discomfort of Non-Closure") is a more difficult one. We as a society apparently need to make some decisions about who can and cannot enter into women's spaces. Do you agree with that assessment? Thanks, -Smac

I appreciate your comments here. I think I have a better grasp of your perspective than I did before. I will take these things into consideration. Thanks, -Smac

If a party tries to raise an irrelevant issue, or an issue which was not "preserved" at the trial court level (that is, the party seeking appellate review of an issue failed to address it with the trial court), then the appellate court does not review it. It is possible that the appellate court could raise and address an issue sua sponte (that is, without the parties or the trial court below having raised it), but this seems quite rare. In any event, the entire purpose of the court system is to let parties present claims and defenses, and then have those things sorted and assessed by the trial and appellate courts. Here, the "definitional issue" was, by the reckoning of some appellate judges, raised by both sides. This was particularly apparent, I think, in the Huntsman case, as Judge Bumatay addressed it in his concurrence, and did so by pointing out - accurately, I think - how Huntsman and the majority had addressed it. Huntsman brought a "fraud" lawsuit based on Pres. Hinckley's comments about tithing, and the "fraud" involved what monies - in Huntsman's view - did and did not count as tithing. Five of the six judges in the Ninth Circuit addressed the Church Autonomy doctrine substantively, as did the unanimous Tenth Circuit decision (though by finding the doctrine applied, it did not "reach" the definitional issue). Judge Bumatay claimed (persuasively, I think) that the majority opinion likewise addressed the definitional issue. Judge Shelby did not reach it. I have only taken one case to a federal circuit court, but I have about 10 or so state appellate cases under my belt, and hundreds and hundreds of state trial court decisions, and perhaps 100+ federal trial court decisions. If a trial or appellate court detects an obfuscatory argument, they not only refuse to address it, they often admonish the party and the party's attorney for trying to present it. Do you dispute that two of the tithing cases addressed the definitional issue (or, more broadly, the Church Autonomy doctrine)? It seems that nowhere did any judge find what you are alleging here (that the Church raised the definitional issue "to obfuscate the situation"). Do you disagree with that? I have previously raised a number of questions along these lines, and I hope you will given them some thought and respond to them. If not, that is fine. I have been attempting to turn over a new leaf by, inter alia, "embracing the discomfort of non-closure." For my part, I found the tithing lawsuits to be pretextual and obfuscatory. They were all attempts to litigate doctrinal or personal grievances, with the City Creek issue being a pretext for circumventing the Church Autonomy doctrine. This appears to be from the August 2023 decision in Huntsman, which came from a divided three-judge panel, and which was vacated and superseded by the unanimous (11-0) en banc decision. And as noted previously, not only did the minority concurrences address the definitional issue, so did - in Judge Bumatay's view - the majority. A vacated decision - such as the one your are quoting here - is generally considered null, void, and of no legal effect, as if it never existed. My understanding is that when somebody makes a donation to the Church, the donor indicates what the donation is for by selecting things such as "tithing", "fast offerings", "missionary fund", "humanitarian fund", and so forth. If the donor indicates that the donation is a "tithing" donation, the donation is put into the Church's "tithing fund." Am I wrong about any of that? If I'm not, why would any member think the phrase "tithing funds won't be used for X" referred to anything other than the money that was labeled "tithing" by the donor? I am not sure I understand your point. The truth or falsity of statements about "tithing" would, I think, need to be evaluated based on what "tithing" means. This is particularly so since Huntsman sought to define tithing in a way that departs from the Church's usage. Or more particularly, how "the money" (that is, tithing) would not be used (in funding City Creek). I posed the following query to Grok: The response: I responded: "Yes, please provide "specific quotes to use" in our discussion." The response: “The question is whether the Church’s statements about how it would use tithing funds were true … We conclude they were not false.” Why this helps you: This directly shows the court interpreted what “tithing funds” meant — exactly the definitional issue you say was relevant. 2. Judge Bumatay’s Concurrence in Huntsman en banc (the strongest support for your view) Key point: Bumatay explicitly agrees the definitional issue was reached and argues it is ecclesiastical. “For Huntsman to prevail, a court or jury would need to agree with his view of what ‘tithing funds’ in the Church includes. But that would intrude on the Church’s authority to define that divine concept for itself.” “The majority’s opinion necessarily resolves a religious question: what President Hinckley meant by ‘tithing funds.’ … The court has effectively taken sides in a religious dispute over the meaning of the Church’s own teachings.” “This is precisely why the church autonomy doctrine should have barred the claim at the threshold.” Why this helps you: Bumatay directly supports your argument that the definitional issue was both relevant and reached by the majority — and that doing so crossed into protected religious territory. 3. The 2023 Panel Opinion (vacated) – Your Opponent’s Favorite Quote Quote he is relying on: “We are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money. Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions.” Why you can neutralize it: Point out that this language is from the now-vacated 2023 panel decision. The en banc court superseded it in January 2025. The current controlling 9th Circuit opinion is the one above. 4. Gaddy (10th Cir., Aug. 26, 2025) Key point: The court avoided the definitional issue. “Because we conclude that the plaintiffs have failed to plausibly allege reliance … we need not reach the Church’s alternative arguments, including its invocation of the ecclesiastical abstention doctrine with respect to the tithing claims.” Why this helps you: Shows the 10th Circuit treated the definitional issue as one it could (and did) sidestep. Thanks, -Smac

My point is that the tithing cases have nothing to do with the doctrinal definition of “tithing.” Well, I'm not sure we can say that. The consolidated case and the Gaddy case did not "reach" or address the definitional issue. The Ninth Circuit majority opinion did not apply the Church Autonomy doctrine, and so did not "reach" the definitional issue either. The concurring opinions, however, did address the definitional issue, and they found it relevant. So it's sort of a mixed bag. By way of example, let's say that Party A sues Party B, and Party B files a Motion to Dismiss that includes arguments for dismissal based on (A) a statute of limitations argument, and (B) a definitional argument. Let's then say that the court dismisses the case based on (A) alone. I don't think an observer could say that this case "had nothing to do with" the definitional argument. Maybe yes, maybe no. The court did not "reach" it, so we'll never really know. I think the same thing applies to the majority opinion in Huntsman and the Gaddy and consolidated cases. They did not "reach" the definitional issue, so we can't say whether that issue would have been litigated. To the extent the "tithing" cases are relevant, only the concurring judges in the Huntsman case "reached" the definitional issue, and they both addressed it quite clearly and found that it was relevant. I would like to better understand your position here. "Fraud" involves, inter alia, a false statement of fact. What would you propose that to be? Judge Bumatay seems to have honed in on this: Do you agree or disagree with Judge Bumatay? Did the majority "parse" Pres. Hinckley's statement "about tithes," and concluded that he "properly 'drew a distinction between principal tithing funds, coming directly from Church members, and earnings on the funds that the Church sets aside from its annual income (which includes tithing funds)'"? To me, this sounds like the majority opinion did weigh the meaning of "tithing." Do you disagree? Judge Bumatay continues: Did the majority side with the Church over Huntsman about whether "the church treated all funds as 'tithes'"? It seems like it, but I would like to hear your thoughts. More: This sounds like the majority took a side - the Church's - regarding "earnings on invested reserve funds" being distinguishable from "tithes." What are your thoughts? More: Here Judge Bumatay says the majority "consider{ed} the statement of a purported whistleblower, David Nielson, who disagreed with how the Church publicly defined 'tithes.'" Do you agree or disagree with this assessment? More: How did the Ninth Circuit adjudicate the dispute about "how Church adherents should construe the pronouncements of religious doctrine from Church leaders {about tithing}" without weighing in on the meaning/definition of "tithing"? More: A "level of precision" about what "tithing" means. Ambiguity about "tithing doctrine." The Church "preach{ing} to its congregants" about tithing. Would you agree with these propositions? More: It seems like the majority disregarded the Church Autonomy doctrine, weighed in on a disputed doctrinal issue, and ended up finding in favor of the Church. And the disputed doctrine issue seems to have been the meaning of "tithing." Okay. What "definition of 'tithing funds'" would a secular court use? Who set that definition? When and where? How did it become binding on Pres. Hinckley? And how would a secular judge evaluate any of this without running afoul of the Church Autonomy doctrine? I think tithing is defined both doctrinally and practically. When Latter-day Saints tithe, they give a tenth of their increase. They do so as a matter of doctrinal adherence, not accounting. I think it would be very difficult for a secular court to say "Pres. Hinckley's comments about tithing pertained to accounting, not doctrine." I think saying that would run afoul of the Church Autonomy doctrine. Thanks, -Smac

So far, multiple federal judges disagree with you on this point, I sense that by "this point" you are referring to the Church Autonomy / Ecclesiastical Abstention doctrine, and I also assume that by "disagree" you mean that this doctrine applied to the "tithing" cases (or perhaps more specifically, the doctrine as applied to the definitional argument re: "tithing"). Am I correct so far? In the Huntsman case, the en banc panel "held that the church autonomy doctrine had no bearing in this case." Judges Bress, M. Smith, Nguyen and Vandyke wrote in a concurring opinion that the doctrine should apply ("Courts therefore cannot resolve disagreements over church teachings and governance, which would pose grave threats to the autonomy of religious organizations."). Similarly, Judge Bumatay in his concurring opinion stated that "we can decide this case based on the church autonomy doctrine." That's five out of the 11 judges on the Ninth Circuit that heard the case. In other words, only a bare majority of the Ninth Circuit held that the doctrine did not apply. In the Gaddy case, the Tenth Circuit held: "Below, the district court granted the Church’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Plaintiffs’ second amended complaint based in part on the church autonomy doctrine and in part on a failure to sufficiently state the indictable acts underlying the civil RICO claim. We affirm. We hold that the church autonomy doctrine bars Plaintiffs’ first RICO theory, because it improperly requires adjudication of ecclesiastical questions, namely, the truth or falsity of religious beliefs. In the consolidated Multidistrict case, Judge Shelby, as the bare majority of the Ninth Circuit did in the Huntsman case, held that " the judicial canon of constitutional avoidance requires the court to focus on nonconstitutional failures before reaching the church autonomy doctrine," and that "{u}ltimately, the court does not reach Defendants’ church autonomy doctrine arguments here because the pending Motions compel dismissal of Plaintiffs’ Consolidated Complaint on other grounds." I don't think I ever predicted any sort of "unanimous agreement" on the application of the Church Autonomy doctrine. Yes, I acknowledge that a bare majority (six judges) of the Ninth Circuit held that the doctrine did not apply. The other five held that it did apply. As did the unanimous Tenth Circuit. Judge Shelby did not "reach" the issue. Five of the eleven judges on the Ninth Circuit, disagree with you. Neither Judge Shelby nor the Tenth Circuit appear to have "reached" the definitional issue. And even the bare majority in Huntsman seems to have only addressed it inferentially, if at all. Reasonable minds can disagree about such things. That is an interesting take. How do you account for the five minority judges in the Ninth Circuit? I don't think we can draw that implication. The Church Autonomy doctrine is well-addressed in the unanimous Gaddy decision and in the concurring opinions in the Huntsman decision. I would be interested in seeing how you evaluate those. Even your summary here seems to expose the problem. You reference "a special religious definition of {tithing}," by which I think you mean to suggest that federal courts can and should define what "tithing" means, and that this definition would supersede the Church's definition and usage. I don't think the courts can do this without running afoul of the doctrine. I would be interested to hear from you if you think otherwise. Further, even in the best case for your position - the majority opinion in Huntsman - the Ninth Circuit did not apply the doctrine and find that it did not bar claims against the Church. Rather, the majority refused to apply the doctrine at all. The Huntsman case was decided in the Church's favor on other grounds. The Ninth Circuit decision simply does not have anything to say about the "implication" you raise here. It appears that you are attempting to litigate the definitional issue (that is, the definition of "tithing"). I have not heavily scrutinized the three cases recently, but my recollection is that the majority decision in Huntsman did not address this issue at all. The Bress concurrence, however, did: Same goes for the Bumatay concurrence: The unanimous Tenth Circuit decision in Gaddy, though it broadly applied the Church Autonomy doctrine, apparently did not reach the definitional issue: I think the only way you can "reach" the definitional issue is by conceding that the Church Autonomy doctrine does apply (since the court would need to define "tithing" and, in so doing, encounter the doctrine). And as soon as you concede that, the Huntsman decision becomes irrelevant (since it made a contrary finding), the concurrences in Huntsman do become relevant (and manifestly work against your argument), as does the unanimous Gaddy decision (broadly, anway). Anyway, I appreciate your insights and comments. Thanks, -Smac

I don’t think anyone really likes these terms. They are clunky and not entirely accurate but no better term has caught on. Thank you for the candid reply — I really appreciate you acknowledging that the terms are clunky and not entirely accurate. I am curious: What specifically do you find “not entirely accurate” about AMAB and AFAB? As I see it, the previous understanding was always that the doctor delivering the baby observes the baby’s sex and notes it on the birth certificate. The alternative term, “assigned,” implies a subjective decision rather than an objective observation. These acronyms implicitly presuppose the idea that “male” and “female” (the M and F) as something arbitrarily “assigned” at birth rather than something the doctor observes and records based on biological reality. This framing makes it much easier to treat sex as a social construct instead of a biological reality. Once that move is made, statements like “trans women are women” or “men can menstruate” start to sound coherent, even though they conflict with observable reality (unless we re-define "women" to include not only biological females, but also males who "identify" as women). The difference between "observe" and "assign" is, I think, significant because the former is reflective of scientific reality, whereas the latter is ideological. I also think repeatedly pulling the terms “man/woman” and “male/female” away from their biological grounding moves us further from reality. Even within much of the trans community, there seems to be a recognition that these terms cannot be infinitely malleable — that’s why we see efforts to preserve “male/female” for biological sex while using “man/woman” for gender identity or presentation. I sense the same underlying challenge when we try to materially differentiate “sex” from “gender.” I’m not trying to be difficult about language. I just think precision and grounding in biological reality matter here, especially when policies affect single-sex spaces, sports, and medical decisions. Curious to hear your thoughts on the “assigned” part specifically. Typically in discussions it is “biologically female” and not “biological woman”. I would like to better understand the distinction you are making between “biologically female” and “biological woman.” What do you see as the meaningful difference between those two terms? For me, the increasing separation of “female” (treated as merely biological, though even then "female" seems to be used to describe something subjective, such as in "AFAB") from “woman” (treated as gender identity or social role) feels like it implicitly imports a particular ideological framework — one that treats “woman” as something that can be detached from biological reality. To some extent, this has already happened, as society has more or less mainstreamed the term "trans woman." We all know that a "trans woman" is a neologism referring to males/men who "identify" or work to "appear" as females/women, but we go along with the neologism because older terms (like "transsexual" and "transvestite" and "crossdresser") are outdated (and, I infer, offensive). By way of example, I just remembered this 1999 episode of Frasier: That the Frasier writers in 1999 were comfortable with a popular character (Roz) using the word "transsexual" is perhaps indicative that the term was not offensive then. But times have changed, so now we use "trans." Although this too has some ideological connotation, I can't think of a better term. I often add the parenthetical “(biological male)” when I refer to “trans women” — it’s my way of keeping the biological reality front and center rather than unconsciously accepting the separation. Ah. That goes into DSDs and epistemic uncertainty / ontological certainty and the sexual binary (and the denial thereof). Perhaps that's a discussion left for another day. I think its implicit and ideological connotations make it something other than a "simple identifier," but I can understand how people could disagree about this. Do you have a better term? That’s a fair question. I don’t have a single perfect replacement term that everyone would love, and I’m comfortable saying that. I agree with you that when a distinction truly needs to be made, we need some way to communicate it clearly. That’s why I’m not arguing we should ban the word “cis” from all discourse. If it’s useful in a specific context, people can use it ad hoc. I’m fine with that. For my own part, I choose not to adopt “cis” as a default framework because it feels like it quietly imports an ideological assumption I don’t share — that everyone has a “gender identity” that may or may not match their biological sex. I prefer to simply say “women” or “men,” or “biological females” / “biological males” when a distinction is necessary. Those terms feel more grounded in observable reality to me. I realize not everyone will see it the same way, and that’s okay. This is one of those areas where we may just have to live with some ongoing disagreement rather than reaching a neat resolution. Perhaps this is where Habit Ten of the Hollis book ("Embrace the Discomfort of Non-Closure") comes into play. Not every conversation needs a winner or final resolution. I am content to attempt to keep talking and make incremental progress where we can. How do you usually handle it when you need to make a clear distinction without using “cis”? Thanks, -Smac

No, biological women is the broader category, the two subsets being ciswomen and trans men. I'm not sure I understand you. If "woman" is re-defined to eliminate its biological component, then "woman" becomes a category that includes subsets: biological women and biological men ("trans women"). Do you disagree with this? What is the difference between a "ciswoman" and a "biological woman?" Thank you, -Smac

In general the advice to transwomen and transmen is not to switch public bathroom usage until you are androgynous or passable. So the "limiting principle" is being "androgynous or passable"? A "trans woman" who does not look sufficiently like a "woman" would, under color of law, be prohibited from entering a woman's bathroom? Is "passing" the limiting principle, then? Self-identification and also for law enforcement not to be involved at all. They weren’t before. It is a self-policing situation. Would this have the functional effect of abolishing sex-segregated bathrooms? "Self-identification" is an entirely subjective thing, after all. How about doing nothing then? Yes, that is certainly an option. Some (many?) women, though, might want something to be done to preserve women-only spaces (with "women" being biological women). I understand this is the bone of contention. I think the safety concern is broader than that, and the privacy concern is there too. I appreciate you laying that out directly. I agree that the vast majority of men ("cishet" or "trans" or otherwise) are not predators, and that bad actors have always existed. I also agree that we should focus on actual behavior and prosecute assault or voyeurism to the fullest extent of the law. The concern isn’t that a bathroom sign magically stops every determined criminal. The concern is that changing the rule itself from biological sex to self-identified gender identity removes the clear, objective boundary that used to exist. Before self-ID policies, a man entering the women’s bathroom was immediately out of place and likely to be challenged. Now, under a self-ID rule, he can simply claim a female identity and there’s no objective standard left to push back on. That shift has already produced documented cases of voyeurism, filming, and assaults in women’s facilities — not mass invasions, but enough real incidents to make many women and girls feel their privacy and safety have been compromised in spaces that were designed to protect them. I’m not trying to make life harder for trans people. I just struggle with the idea of solving one group's discomfort (that of trans women) at the expense of another group (biological women) by asking/requiring that other group to surrender the sex-based protections they’ve always had. Single-occupancy bathrooms or third spaces seem like a far better way to accommodate everyone without creating new risks. But even then, the solution is not plenary, as there will be plenty of private and public places with sex-segregated bathrooms. So "doing nothing" would seem to be a de facto elimination of sex-segregated bathrooms. I think plenty of women would object to that. I’m curious what you think: If we kept the biological-sex standard for women’s facilities and expanded single-use options for anyone who wants privacy, would that at least partially address the legitimate concerns on both sides? Thank you, -Smac

it is clunky much like AMAB and AFAB are clunky. Those neologisms ("AMAB" = "Assigned Male at Birth" and "AFAB" = "Assigned Female at Birth") are also fairly loaded with ideological presuppositions, which I think makes their utility difficult. Is there any context in which "biological women" does not include "trans men"? I think its implicit and ideological connotations make it something other than a "simple identifier," but I can understand how people could disagree about this. Thank you, -Smac

The challenge I have with "Cisgender women" is that fundamentally alters the meaning of "woman." It makes "biological women" a subcategory, alongside "trans women," and thus presupposes the re-definition of "woman" that severs the word from biology, which I think is encountering a lot of resistance. "Cisgender," as a neologism, also seems to have a strong sociopolitical bent. Thanks, -Smac

Thanks for sharing that 2016 clip — I appreciate the historical context. I agree that politicians on both sides have used this issue for political gain, and that can make things feel more heated than they need to be. At the same time, I think the noticeable rise in concern since around 2016–2018 isn’t just political spin. That period coincided with a very visible shift in policy and culture: the move from “live and let live” toward self-ID policies that allowed biological males into women’s bathrooms, locker rooms, shelters, and especially sports. High-profile examples like Lia Thomas competing in women’s swimming, Dylan Mulvaney’s very public campaign, Drag Queen Story Hours in schools, and the sharp increase in medical interventions on minors all made the practical consequences of those policy changes much more visible to average people. I think that in 2016, most Americans had never encountered a self-ID bathroom policy in practice. Once those policies were implemented and the effects became real (women and girls reporting discomfort, loss of privacy, and documented incidents), public concern grew — not because trans people suddenly appeared, but because the rules changed in ways that affected sex-segregated spaces that had been stable for generations. I don’t think this is purely a “right-wing wedge issue.” Some segments of the trans activist community and their allies pushed hard for self-ID policies that went far beyond basic tolerance. Is it possible that this activism, combined with institutional adoption of those policies, have contributed to the new social friction we have been experiencing? Also, do you think the concerns women have raised about privacy and safety in bathrooms and locker rooms are entirely manufactured by politicians, or do you see some of those concerns as legitimate reactions to real policy changes? Thank you for explaining your position clearly. I appreciate you wanting to keep things practical and minimize conflict for everyone. I agree that in an ideal world we would have enough single-use bathrooms so that anyone who feels uncomfortable can have privacy. That would be a compassionate solution. But it won't work in all places. For example, I co-own an RV park, and we have recently installed private single-use bathrooms, each of which has its own locked door. So we won't be encountering any problems along the lines of what we are discussing here. However, down the road there may be an older RV park that has sex-segregated bathrooms. Do you think it would be incumbent on the owners of such a facility to spend a substantial sum revamping their facilities to turn them into single-use bathrooms? Also, I think that the “leave it the way it is — let people use the bathroom of their choice” is actually a new policy, not the status quo of the last several decades. For generations, the limiting principle for women’s bathrooms, locker rooms, and showers has been biological sex, not self-identified gender. That bright-line rule was simple, enforceable, and grounded in the real differences between males and females that make sex-segregated spaces necessary for safety and privacy. Allowing biological males into women’s facilities (even if they identify as women) changes the fundamental nature of those spaces. Many women and girls experience that change as a loss of privacy and safety — not because they assume every trans woman is a threat, but because biological sex is the reason those spaces were segregated in the first place. I’m not asking anyone to harass trans people. I’m just trying to explore the perspective your are presenting here, which perspective, if enacted, would seemingly solve one person’s discomfort at the expense of others' discomfort (i.e., requiring women and girls to surrender the privacy and safety protections they’ve always had). Single-use bathrooms or third spaces are a much better way to accommodate trans individuals without compromising those protections. But even that does not seem to be a comprehensive solution. Nevertheless, if we keep the traditional biological-sex rule for women’s facilities, do you see single-use or family bathrooms as a reasonable way to give trans people privacy and dignity? I appreciate you sharing that routine — it’s funny, and I get the point it’s trying to make. No reasonable person believes a bathroom sign magically stops every determined predator. We both agree that anyone who commits sexual assault or physical violence should be prosecuted to the full extent of the law, regardless of gender or identity. The bathroom policy debate isn’t about pretending signs are foolproof barriers. It’s about whether we should keep the long-standing, objective limiting principle of biological sex for women’s facilities. That clear, enforceable standard has protected women’s privacy and safety in vulnerable spaces for generations. Changing it to self-identified gender identity removes that objective boundary, such that it seems to make things easier for bad actors to gain access without raising any red flags. The comedian’s bit assumes the only thing stopping predators is a sign on the door. In reality, the policy itself matters: when we remove the biological-sex rule, we lower the practical and social barriers that used to deter opportunistic behavior in women’s bathrooms, locker rooms, and showers. That’s the concern many women have expressed. I am trying to weigh those concerns while evaluating your proposal. Any thoughts on how I should do that? Thank you for the thoughtful reply — I really appreciate that we’re finding some common ground on intersex conditions and the need to prosecute violence regardless of identity. That’s helpful. Where I see the issue differently is that the approach you describe — “everyone use the bathroom that makes you most comfortable” — seems to be a recent policy shift, not the way things have always been. For decades the clear, objective standard for women’s bathrooms, locker rooms, and showers was biological sex. That bright-line rule was simple, enforceable, and grounded in the real physical differences between males and females. Allowing access based on self-identified gender identity (or personal comfort) removes that objective boundary. It’s not about assuming every trans person is dangerous — it’s about recognizing that biological males as a group retain male-pattern strength and sexual offending risks, and that many women and girls experience a genuine loss of privacy and safety when the rule changes. I agree that single-use bathrooms are a compassionate way to accommodate people who prefer more privacy. But I struggle with the idea of solving one group’s discomfort by asking another group (women and girls) to give up the sex-based protections they’ve always had in those spaces. Do you see any downside to keeping the traditional biological-sex standard for women’s facilities while expanding single-use options for anyone who wants them? And meanwhile, what do we do with facilities that are already in place? Do we impose on private property owners (such as RV park owners) an obligation to retrofit sex-segregated bathrooms, or else add single-use bathrooms? Or do we just abolish sex-segregated bathrooms altogether? Thanks, -Smac

Thanks! I highly recommend the Habits book. It really is making an impact in my life. The General Authorities (and the Scriptures, and my Patriarchal Blessing, and my wife) have long spoken of the need to be peacemakers. Hollis's book has, for me, created a framework to pursue that objective. Thanks, -Smac

Thanks. I really am trying to turn over a new leaf. Old habits die hard, which is why I am specifically and repeatedly referencing the Collis book. It provides a sort of visible benchmark by which I hope to measure my words. Thanks, -Smac

I quite understand. In fact, I would not be surprised if you suspected that my change in tone and approach, being both abrupt and substantial, is pretextual or a ruse or something. That is why I cited the book. It has been a catalyst for me (along with numerous discussions with my wife, with whom I have been reading the book). Leaders of the Church have often spoken of being "peacemakers." My Patriarchal Blessing speaks of it. But twenty+ years of litigation has created some default habits that are sufficiently - as you put it - "adversarial" as to keep "peacemaking" at a distance. I can only declare my intentions. Time will tell if those intentions - of striving to be a peacemaker - are borne out. The Hollis book is providing a solid framework, but I still need to utilize it. I am working on that. Thanks, -Smac

Same here. It may well end up being a paradigm shift for me, and one that has been needed for a long time. I quite agree with you here. But this goes back to the "limiting principle" inquiry. Assuming that the vast majority of trans women (biological males) in women's bathrooms "are not threats," is there a risk of biological males who are "threats" going into women's bathrooms? If so, how would we propose to differentiate between the two groups? What limiting principle would allow non-threatening biological males into women's spaces but disallow potentially threatening biological males into women's space? Also, it seems like safety is not the only factor under consideration. I think many (most? even a supermajority?) of women want to have private spaces from which biological males are excluded. Do you think that is a legitimate expectation? My concern isn’t about trans individuals as a group — it’s about the policy of allowing biological males (regardless of identity) into women’s bathrooms, locker rooms, and showers. Biological sex is the reason those spaces were segregated in the first place: to protect female privacy and safety from male-pattern physical advantages and sexual offending risks. The proposal here, which I am evaluating, seems to be that entry into women's spaces should be based on "gender identity" and/or "presentation." And the purpose of this proposal is to solve one group’s discomfort (that is, trans women). However, this solution seems to compromise many women's preferences and expectations regarding privacy and safety in vulnerable spaces. Thank you for taking the time to share your thoughts, even when you were short on time. I appreciate the summary and the spirit in which you wrote it. I agree that in everyday life most people simply walk into the bathroom that matches how they present, and for the vast majority of adults that presentation aligns with their biological sex. The reason sex-segregated bathrooms have been the norm for over a century isn’t because we were checking birth certificates at the door — it’s because biological sex is observable and the spaces were designed around the real, average differences between males and females (privacy, safety, and modesty). The shift that has created the current controversy is the move from that long-standing biological-sex standard to self-identified gender identity as the deciding factor. That change is, I think, quite recent. When a biological male (regardless of "presentation") enters women’s facilities, many women and girls experience it as a loss of privacy and safety — even if that individual has no bad intent. That concern is based on biological reality and documented incidents, not politics. DSD (intersex) conditions are real and deserve compassionate care, but they are extremely rare (roughly 0.018% of births that involve ambiguous genitalia) and don’t change the fact that sex is binary for the overwhelming majority of humans. Public policy is typically built on for the 99.98%, not the exception. That being the case, are single-occupancy or third-space options a better way to accommodate everyone without creating new problems? What do you think is the best way to balance those competing needs? I’d genuinely be interested in your thoughts on that approach whenever you have time. Thank you, -Smac