by Richard Packham
Once the eyes open, and the once-faithful Mormon realizes that the church is a fraud, it's natural to think back about how stupid you were, and what you have lost in time and money. Every new ex-Mormon is going to ask, "Can I sue them?" After all, they cheated me, they took ten percent of my income, they duped me, they ruined my life and caused me untold anguish, and that's WRONG!
I am frequently asked, "Can I sue the church? Can I get a refund of my tithing? Didn't the church commit fraud, extortion? Can we file a class action suit?"
The answer to the question "Can I sue?" is, of course, "Yes, you can sue." But the more important question is, "If I sue, will I win?"
There are several possible legal theories under which one could sue the Mormon church for a refund of tithing. In my opinion, none of them would be successful. There are perhaps very limited situations for which one could successfully sue for other damages.
DISCLAIMERThe following should not be relied upon as a definitive statement of the law. Your situation may differ, and you should obtain legal counsel only from your own attorney. The writer, although a retired attorney, is not presently authorized or licensed to give legal advice. The writer is speaking as a lay person only, and only in reference to the laws in the United States.
FRAUDAlthough the fraud laws in each state differ slightly, generally fraud consists of the following elements, every one of which must be proven by the plaintiff:
- The defendant made certain representations to the plaintiff, presenting them as facts;
- In so doing, the defendant intended the plaintiff to believe the representations;
- In so doing, the defendant intended the plaintiff to part with something of value;
- The representations made by the defendant were false;
- The defendant knew, at the time of making the representations, that they were false;
- The plaintiff, relying on those representations, parted with something of value;
- The plaintiff, in so relying, was acting reasonably;
- The plaintiff suffered damage as a result.
The exmormon plaintiff suing the church and its representatives would have no problem, I think, in establishing 1, 2, 3 (perhaps), 6, and 8. But I think there would be serious problems in establishing 4, 5 and 7.
The problem with 4 is in the reluctance of the courts to decide on the truth or falsity of any religious belief. You would have to limit your allegations to the factual claims or historical claims of the church. But did you join the church because of its factual claims? The church attorney would probably be able to get you to admit that it was not the facts, but the religious claims, and no court would decide that any religious claim is false.
It would be even more difficult to establish point 5. How would one prove that Hinckley, or the missionary who converted you, knew that the church's claims were false? You certainly could not get them to make such an admission on the witness stand, primarily because they probably believe that the claims are true.
If you tried to establish that the church leaders must know it's false because of certain facts which you can prove, which make it obvious to any ninny that the church is a hoax, then you have shot yourself in the foot when it comes to point 7. You would have to admit that you did not take the trouble to investigate these fantastic claims, even though the libraries are full of anti-Mormon books. You would have to make a jury believe that it was reasonable for you to hand over ten percent of your annual increase based on a New York confidence man's story that he had been visited by an angel.
Yes, I think that the church defrauded us all. But I don't think we could make the case in court.
EXTORTIONExtortion in modern American law is obtaining something wrongfully by threat. It is a crime. Some former Mormons feel that they were pressured by the teaching that they would be separated from their families, that they would go to hell, that they would not gain eternal exaltation, etc., and that it was this fear that prompted them to part with their tithing money.
But the missionaries did not threaten you, nor did your bishop, to get you to part with your tithing, any more than the insurance salesman threatened you when he warned you that your family would be destitute when you die if you didn't buy his policy.
You would also have the problem of proving that it was perfectly reasonable for you to believe that the threats were real, that is, you really would not become a god if you didn't obey them and give them your money.
EMOTIONAL DISTRESSThe infliction of emotional distress is grounds for a lawsuit in most jurisdictions. However, it is strictly limited to the intentional infliction of emotional distress. That is, the plaintiff must prove that the actions of the defendant were motivated by the desire to cause emotional suffering in the plaintiff. I cannot see how any former Mormon could prove that the missionaries or the church leaders had that intention.
CLASS ACTIONSA class action is not a separate legal theory, but just a special procedure to enable a group of people with similar complaints to sue a single defendant. A fundamental requirement is that the members of the class must have pretty much the same case against the defendant. A class action would have difficulties establishing the class, I think. Not all exmormons joined for the same reasons. Not all were told the same things. Not all examined the church's claims to the same extent.
PRACTICAL CONSIDERATIONSAttorneys who would be willing to invest the time and effort to sue the LDS church for a contingency fee (no win, no fee) would be hard to find, I would think. The church has a large, well-financed legal department, and any lawsuit for a refund of tithing would bring out the big guns and the big money, because the case could set a precedent. Do you think the church would hesitate to spend five million dollars to fight such a suit? Either you or your attorney will have to be prepared to spend a similar amount.
On appeal, you would have the entire nation's churches filing amicus briefs in support of the Mormon church's position, because their disgruntled members are thinking about their former donations, too.
SEXUAL ABUSEThe one area where the church has been sued successfully a number of times is when a member of the church molested a child, and the local church authorities learned of it but did nothing more than satisfy themselves that the culprit had repented, usually without reporting the matter to the civil law enforcement authorities (as is usually required by law). Few of these cases have actually gone to trial. The church has settled most of them out of court, perhaps because the church wished to avoid the negative publicity, and by settling it could insist in the settlement agreement that the specifics of the charges and the terms of the settlement be kept secret.
If you believe you might have grounds for such a lawsuit against the church, you would be wise to consult an attorney who has experience with such lawsuits against the church. Contact The Mormon Alliance, Salt Lake City, telephone 801-467-1617, for assistance, or e-mail Lavina Anderson, who is one of the former Mormons who operate this clearing-house for Mormon sexual abuse. Another contact, who has worked in the prosecution of abuse cases, is Linda Walker. See her Child Protection Project webpage, or e-mail her.
NAME REMOVALThe church was also sued in 1985 for refusal to allow a member in good standing to resign membership without undergoing a church trial and excommunication. The church settled that suit out of court to avoid trial, and as a result it now allows members to resign without excommunicating them. If your local authorities insist on excommunicating you, rather than simply accepting your resignation, suggest that they call the church legal department in Salt Lake City for instructions.
CONCLUSIONI'm sorry I sound so pessimistic. We must finally admit that we were fools, and the law was not intended to protect fools from their own stupidity.
I would appreciate hearing from others who may have legal training. If any of you discuss this with your attorneys, I would like to hear what they say.
Update, October 2008:
One former Mormon is gathering names of people who would like to join in a class action suit to recover tithing paid. If you would like to support his effort, go to the website http://mormonlawsuit.com.
(My posting this link is not necessarily an endorsement, but merely a courtesy to the webmaster there, whom I have met and with whom I have discussed the issues extensively.)
Update, July 2012:
Kay Burningham, a practicing attorney and ex-Mormon, has published a book on this topic: An American Fraud: One Lawyer's Case Against Mormonism. She tells her story of leaving the church and then gives her assessment of a fraud case. She can be contacted at email@example.com.
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© 1999 Richard Packham Permission granted to reproduce for non-commercial purposes, provided text is not changed and this copyright notice is included