Judicial Fairness

The parallels between the church disciplinary process we have seen unfolding in the media and justice reform efforts ongoing worldwide have been striking to me.  I believe that a comparison between international standards of judicial fairness and the church disciplinary hearing system is fair and warranted in adding nuance to this discussion.  While I recognize that the church is a different organization than a sovereign nation with police power, in both cases fundamental considerations of fairness color the perceived legitimacy of outcomes.  Membership in the church is voluntary, but we do not treat it with a relaxed and voluntary attitude that would accompany membership in a country club.  Children raised in the church are trained with every family scripture study, prayer, family home evening, and trip to primary that the reality of church membership is the reality of eternities with eternal consequences.  Gaining a testimony of gospel truth is a lifelong exercise in loyalty and commitment.  Most importantly, scriptures teach that the worth of souls is great in the eyes of God.  People matter, and the institution matters to its people—perhaps more so than any other institution or affiliation in their lives.  This is not a casual, blasé hobby.  The process may technically be voluntary, but that voluntariness is hugely mitigated by the personal testimony and loyalty of the participant.  Further, the church treats disciplinary hearings with a “court-like” approach.  Participants are summoned based on confession or evidence gathering.  The Church Handbook of Instructions contains both substantive charges and procedural guidelines.  Participants act as either advocates for the summoned, or advocates against them, and ultimately the decision of the bishop or stake president is subject to appeal.  There is an intention to create some elements of court procedure.  Because of this, I think it is at least informative to consider international standards of judicial fairness when thinking about the process of church courts.

Humans have been struggling with defining what constitutes fair governance for thousands of years, but in the past decades, a new field has been emerging—the international rule of law reform movement.  This field is attempting to identify fundamental principles of fair and effective dispute resolution mechanisms and determine the most effective ways to help countries implement those principles.  A growing recognition that the bedrock of fair, accessible, and enforceable laws is a key pre-cursor to effective development has spurred the growth of the field.  In the past few years, after debates over definitions of what rule of law actually is, some consensus definitions and elements are now appearing.  For the sake of consistency, I’ll refer to two sources as representative of the wider thought in the field.  The United Nations defines rule of law as:  “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”  http://www.unrol.org/article.aspx?article_id=3 

An NGO, the World Justice Project, dedicated to measuring adherence to the rule of law all over the world built its measurement factors on a similar definition of rule of law:  “The rule of law is a system of rules and rights that enables fair and functioning societies. The World Justice Project defines this system as one in which the following four universal principles are upheld:

  1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
  2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
  3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
  4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.”  http://www.worldjusticeproject.org/what-rule-law

There is a tremendous amount of thought and discussion that could be pulled from these definitions, but I want to focus on a few that underscore the necessity for both consistency of expectation and equal treatment—principles that I think are the bedrock of judicial fairness.  When fair judicial processes are used, everyone knows what standard they are being held accountable to, and knows what the consequences are for their behavior.

  • Rules are publicly accessible and should protect fundamental rights.
  • Rules are enforced equally.
  • Rules promote certainty and avoid arbitrariness.
  • Adjudication should be independent and reflect the makeup of the community.

The consistency of expectation provided by adherence to these principles of fairness allows people to confidently and competently interact with the institution in power, and allows for the most peace and trust among the governed.  Because these principles protect them from unfair action, they are able to plan their lives and make informed decisions—thereby investing more fully in the community.  Unfortunately, many of these principles of fairness are not present in the current system of church discipline, and the consequences of that are being underscored in the possible excommunication action against Kate Kelly.

Rules are publicly accessible and should protect fundamental rights:  There are two types of rules in any disciplinary action—substantive rules laying out the elements of the proscribed behavior, and procedural rules that lay out the process by which the decision makers determine whether or not that substantive rule has been violated and what consequence should follow.  In the case of apostasy both the substantive rule (i.e. definition of apostasy) and the procedural guide are contained in the first volume of the Church Handbook of Instructions (CHIv.1), a publication that is not made available by the church to anyone but priesthood leaders and their priesthood holding clerks.  Within the Mormon church, only men are allowed to hold the priesthood.  Consequently, while all men have the potential of having access to the CHIv.1, no women have that same potential.  Ironically, this issue of gender inequality is why Sister Kelly is being summoned to disciplinary proceedings.  This means that unless Sister Kelly has found a copy of the CHIv.1 on line, or been given access to it by a man, she would not have seen the definition of apostasy that she is charged with violating.  Neither would she have known the procedural consequences of that violation.

This is particularly problematic given the nature of the definition of apostasy in the CHIv.1.  While dictionary definitions of apostasy mostly relate to private belief (i.e. dictionary.com defines apostasy as abandonment of one’s religious faith) the CHIv.1 definition of apostasy relates entirely to public speech about private beliefs, and acting in opposition to church leaders after being counseled not to do so.  Rather than being traditional apostasy, it seems to be more a definition of proscribed ecclesiastical slander.   As far as I know, the CHIv.1 definition is not included in any regularly available church curriculum, nor is the fact that the CHIv.1 mandates a disciplinary council for apostasy publicly promulgated.  Sister Kelly is being held accountable for violating a secret rule that carries with it mandatory consequences.

Rules are enforced equally:  Under principles of judicial fairness, men and women should be treated equally.  However, under the rules contained in CHIv.1, Melchizedek priesthood holders (nearly all adult men), are subject to a disciplinary council on the stake level including the entire stake high council (a total of 15 men), while women are subject to a disciplinary council on the ward level with the bishop and his two counselors (a total of three men).  While it may seem that a disciplinary hearing on the ward level may be more convenient or less overwhelming, it may also be that the three men in the accused’s ward have more prejudicial feelings against the accused.  With fifteen men debating the outcome, vice three men, there may be a better chance of fairness.  Further, in the case of a ward-level hearing, the bishop essentially investigated the breach, made the decision to hold the council, and then made the decision in the council.  On the other hand, a stake council would have originally been instigated by a bishop who then turned the matter over to the stake—an arguably more disinterested and certainly a larger and more varied group of decision makers.

There is also unequal treatment of parties, with the secret rules vastly favoring the church.  Although most Mormons do not think of the process as being adversarial, the assignment of an advocate to present the case, and one to defend the accused, casts the procedure in that light.  In this case, one side holds the power to convene the council based upon secret rules and procedures, and then has the decision making power within the council.  The decision makers’ ultimate verdict is appealable, but it is appealed up the chain of command of the decision maker, with no transparency to alert the accused or future accused of irregularities or unfairness.  I am willing to concede that the vast majority of cases proceed fairly, and in good faith.  I am also willing to concede that it is entirely possible that both parties feel that the decision makers are inspired.  But when structural rules and processes stack the deck so thoroughly against the accused, the inequality may act as an almost spiritual static obscuring inspiration in favor of one’s own prejudices.  As a favorite author of mine noted:  God created man in his own image, but man frequently returns the favor.

Rules promote certainty and avoid arbitrariness:  Because there is no transparency in the rules or processes of church discipline, and because there is no consistent guidance within church curriculum or publications on what apostasy is, or how situations of alleged apostasy are dealt with, members have absolutely no certainty as to what consequences their actions will have.  In common law systems, precedent serves to add certainty to judicial proceedings, while in civil law systems, laws are written with much more detail and are widely promulgated to promote certainty.  In the Mormon court system, individual bishops, who may or may not understand that the definition contained in their handbook is a relatively vague reference to ecclesiastical slander, are left up to their own devices, and, unfortunately, to apply their own prejudices to the process.

The determination that discipline takes place on a local level adds to the arbitrariness of apostasy disciplinary hearings.  We are seeing this play out with some supporters of OW being targeted for disciplinary councils, while others are waiting to see if they are next.  This arbitrariness leads to forum (ward) shopping, a chilling effect within the wider community, and backlash against progressivism.  While this chilling effect may be the very purposeful effect of judicious use of secret rules in secret proceedings, it is a very blunt instrument with which to bludgeon one’s critics.

Adjudication should be independent and reflect the makeup of the community:  As discussed above, adjudication is made by a party to the conflict, not an independent fact finder.  Further, a woman in the church cannot be tried by a disciplinary council consisting of both men and women.  Until there are changes to the rules, she will stand in front of a disciplinary council consisting only of men.  There are reasons for the fundamental fairness principle of being “tried by a jury of your peers.”  People with different life experiences approach conflicts from very different positions.  These positions are not inherently right or wrong, they are just informed by very different experiences.  Judging the behavior of someone, without any voice representing her experiences, can lead to incomplete contemplation, and hasty conclusions.  Further, asking a woman—particularly one whose only experiencing leading men would have taken place outside a church context—to stand before a group of men and justify her behavior can be extraordinarily intimidating, no matter how kind the men in the council are.  That very dynamic could warp the proceeding, and cast doubt on the proceeding’s ability to fairly present the voice of the accused.

Ultimately, there are other troubling aspects of this case including the in absentia proceeding called after Sister Kelly had left her ward (violating both judicial fairness standards, and seemingly the handbook itself), and the irregularity in holding back her records and having the initial discipline contact made by her Stake President rather than her bishop (again possibly violating the handbook), among others.  Further research on standards and rules, and further discussion could be done on these points and others.  However, I think it’s worth separately parsing out the four overarching points above.

I’m sure that I will receive some responses to this post along the lines of “I’ve participated in church courts, and they don’t play out along these lines at all.  They are very fair and compassionate.”  I do not doubt your experience, but I would ask you to keep two things in mind.  First, we are talking about structural issues here, and the problems that they can bring to proceedings.  Second, I’m a woman, I don’t hold the priesthood, and I don’t have any way of verifying your experience.

Comments

  1. Interesting overview. I don’t want to get bogged down into the weeds here, but when you say,
    “I don’t have any way of verifying your experience.”
    No way to find out if it’s the Lords will or if you can trust the Priesthood leadership in this case?

    There’s quite frankly a whole lot that we “don’t know” which would be far far far more concerning about the way the church operates **if** we operated on the assumptions of “don’t know”. From tax dollars to temples and more we could point out all sorts of so-called structural problems one could object to.

    At the end of the day, we can choose to have faith not only in the process and how its organized, but those who organize it and God who directs it, or we can view the process as flawed and in need of reform.

  2. tax could also be tithing… but there might be tax questions too.

  3. I think the precedent issue you’ve highlighted is very significant. Because outcomes of disciplinary councils are kept secret, not only do members not know what constitutes proscribed behavior (even most men, who, by virtue of being men, have access to the Handbook, do not and will not benefit from your astute insight that our substantive charge of apostasy as provided in the Handbook is essentially a charge of ecclesiastical slander rather than anything about someone’s personal beliefs, i.e. it is a speech issue not a belief issue), but also even the local leaders themselves do not benefit from access to precedent to see how other councils have proceeded in given situations as a guide to their own understanding of what has been held to be apostasy in other councils, which would help give contour to the substantive definition of apostasy.

    This lack of transparency or visibility on the issue of precedent means that each disciplinary council has to re-invent the wheel every time (though perhaps with the input and insight from individuals serving on the councils who have participated in previous councils with similar facts), which leads to massive variance in the outcomes of these councils. Someone might be excommunicated for the exact same speech that is shrugged off by a different council in someone else’s case. Or local leaders’ personal prejudices or inexperience might come into play, as you mentioned, with the effect that in one council, a rather “severe” bishop, in the case of a woman or child, or Stake President, in the case of a man, might take harsher action against an accused because of his perception (rightly or wrongly) that the accused isn’t being properly deferential to his own authority, whereas another bishop or SP with a different demeanor might interpret D&C 121:41 to mean that deference to his own authority, on its own, shouldn’t be a relevant substantive issue in the case.

    This is inherently unfair. A body of accessible precedent would greatly reduce this risk.

  4. Outstanding, important analysis, Karen.
    For whatever it’s worth (very little), I have participated in several church courts and your analysis and observations are spot-on. One aspect of the dynamic of church courts that is important to remember, I think, is the presumption that the “common judge” is not actually there as a neutral adjudicator, but as someone who has already determined that the true facts actually do necessitate the court proceeding. In that sense, every church court is essentially the equivalent of a U.S. court’s motion for reconsideration – an extremely high bar to clear, no matter how loving or fair the judge.

  5. Mark B. says:

    ” Participants act as either advocates for the summoned, or advocates against them”

    That is just not true. There are no persons whose roles in a ward disciplinary council could even be mistaken for advocacy for the church or for the person who is the subject of the proceedings, and the role of the high councilors is not to act as advocates. That’s made clear in D&C 109, and in the instructions in the handbook.

  6. Mark, the procedures provide for certain participants in the proceeding to speak on behalf of the accused. This procedure is often mainly honored in its breach, to my understanding.

    (Also, it should be noted that in many disciplinary councils, the “accused” is someone who is actively trying to repent of a sin like adultery or something of that nature and therefore is on the same page as the priesthood leaders bringing the charges. That is a different situation than the specific example of apostasy councils that Karen is highlighting here, where the accused will not necessarily agree with the opinion of the priesthood leader(s) who are charging her with such a speech act.)

  7. Kristine says:

    Isn’t that only in Stake councils, John?

  8. well, yes, so there you’ve hit upon another dire procedural deficiency — the man accused of apostasy technically has the benefit of this procedure before the stake high council and stake presidency, i.e. the adjudicative panel of 15 men, whereas the woman accused of apostasy by her bishop, or by her stake president through her bishop as in Kate Kelly’s case, must speak on her own behalf without any technical procedural support (though, as a I stated, my understanding is that despite this procedure at the stake level, there is rarely a vigorous level of support of the accused by the contingent technically tasked with that assignment — and they likely would not be particularly capable of providing robust support even if they were of a mind to do so).

  9. High councilmen who, by lot, represent either the church or the accused, “do not take sides as an attorney would advocate the cause of his client,” but are there “to prevent injustice and insult,” in the words of the old manuals used for generations as priesthood manuals (J.B. Keeler, for instance) This is not an adversarial feature. It is solely to safeguard the rights of the parties, both church and accused.

    These courts do not judge solely by the act, but by the heart. Two persons may commit precisely the same act, and under the laws the OP mistakes as the ideal model for church councils, one may be judged guilty of willful sin while the other may be cleared because a Judge in Israel finds deception or coercion in causing the accused to fall — the second may be the victim of sin rather than the perpetrator of it. This is also a very good reason for not using precedent as a guide to judgment. Precedent cannot convey the spirit that we would hope plays a role in decisions. Disciplinary councils do not exist to punish misbehavior, but to judge the state of the soul and guide the repentant heart toward making things right with God.

    Disciplinary councils mimic some of the forms of secular courts, but their purpose and guiding spirit is so vastly different that any attempt to understand them or improve them by appeals to secular courts misses the point entirely, IMO.

  10. and under the laws the OP mistakes as the ideal model for church councils, one may be judged guilty of willful sin while the other may be cleared

    Something dropped out. “Under the laws … both persons should be found equally guilty or innocent, and cleared or punished identically. But under the church disciplinary system, guided by the spirit, one may be judged guilty of willful sin …”

  11. “Disciplinary councils do not exist to punish misbehavior”

    That’s right because as SGNM has pointed out above, the council is only called when the accuser/adjudicator has basically already decided that the accused is guilty. The procedure is then about seeing whether the accused will be contrite and submit to the accuser/adjudicator’s conclusions or will be “rebellious” and offer a defense (i.e. justifications or arguments that show that he/she disagrees with the decision that’s already been taken that he or she is guilty of apostasy — such a posture of trying to offer a defense interpreted as being prideful and resisting authority).

    So you are correct, CJO, when you observe that we are off when we think about disciplinary councils as “trials” at all and thereby look to international standards of judicial fairness for a comparison — they are more properly analogized to the sentencing phase where an accused has already been convicted. I suppose one could perform a separate analysis on how this is problematic in its own right, separate from the analysis of the trial analogy that Karen offered above.

  12. “one may be judged guilty of willful sin while the other may be cleared because a Judge in Israel finds deception or coercion in causing the accused to fall”

    That’s no different than the scienter prong of many civil and criminal counts in U.S. courts, CJO.

    One big difference between secular courts and church disciplinary councils is that, with church disciplinary councils, the finder of fact has generally already made its findings before the court ever convenes. This is a problem.

  13. It is not correct to consider disciplinary councils as nothing but sentencing hearings for a defendant already judged guilty. Testimony is taken. Witnesses are called. The accused can speak in his or her own defense. Recesses can be taken while additional testimony or evidence is gathered.

    The only judgment that has been made at the beginning of a hearing is that there is sufficient evidence of {apostasy/whatever} to warrant a hearing. Rather than a sentencing hearing, a better analogy is something like an indictment, or a hearing following a successful (to the accuser) order to show cause.

  14. Mark Brown says:

    In practice, there is a lot of arbitrariness in LDS disciplinary councils. It is not uncommon for one bishop to have a reputation as a “hanging judge”, while the bishop of the neighboring ward has a reputation for using church discipline very sparingly. Which one is right? Who knows. But when one of the major factors in whether your membership and temple ordinances can be nullified is a ward or stake boundary — literally which side of the street you live on — it cannot credibly be argued that the system is NOT arbitrary and capricious. It may be the best we can do for now, given a lay clergy, but let’s please not kid ourselves by pretending this is fair.

  15. Left Field says:

    The high councilors who draw even numbers are charged to “stand up in behalf of the accused, and prevent insult and injustice.” Other than speaking “according to equity and justice,” there’s no specific assignment given to the odd-numbered councilors, and certainly nothing that prohibits them from also speaking on behalf of the accused, nor anything that requires them to speak on behalf of the church.

    However, I was once asked to serve as a substitute for an absent high councilor, and we were told that those who drew odd numbers were charged to speak on behalf of the church. I pointed out that neither Section 102, nor the Handbook said any such thing. The stake president agreed that it didn’t say that, but nevertheless, that’s what they are supposed to do.

  16. Fair or not by our limited mortal perspective, it is the system prescribed the Lord in the Doctrine and Covenants. The “unfairness” factor is addressed by the right of appeal to the First Presidency. A woman who, as one commenter has said, is judged solely by a bishop without benefit of a 15-member panel does have the benefit of that panel on appeal. She has two possible appeals; a man has a single appeal.

  17. By the way,l I appreciate your courteous tone with me. You gentlemen are far more civil, and engage with me on a much deeper level, when you assume I am a man than when you know who I really am.

    Lest you think I am blindly defending the system without having thought long and deeply for years about disciplinary councils and their effects, particularly on women, please follow my series on Cora Birdsall. Next week’s installments will illustrate ways in which women are disadvantaged by the system, and the horrific consequences that can sometimes result, even when almost everyone does his or her best to act as God expects them to do.

    And I apologize for the deception. I wanted to judge the difference between how you treat me as a man and how you have often treated me as a woman in these discussions.

    Ardis E. Parshall
    Keepapitchinin.org

  18. Mark Brown says:

    CJO: “limited mortal perspective”

    Bingo. And that also applies to the very good men who sit on the council and who are doing their level best to discern God’s will. This is an imperfect system subject to bias, emotion, and willful blindness, like everything else in this fallen world.

  19. And, like everything else in this fallen world, the Jesus Christ stands ready to step in and make things right through the atonement. You talk about the seriousness of canceling covenants and blessings: yes, that is serious. But when mistakes are made, the church disciplinary system is not the end. As terrible as mistaken consequences may be, I’m not sure they’re much worse than many of the other disasters and consequences that blight mortality.

  20. Nate W. says:

    Asking because I honestly don’t know—what is the nature of proceedings on appeal before a stake president? Is further evidence taken? Who is allowed to speak?

    My understanding of an appeal to the First Presidency was that it was adjudged entirely on written submissions and that no reason for decision was required–making it more analogous to a petition for certiorari than an appeal.

  21. CJOArdis says:

    Appeals can be accompanied with additional written evidence — the appellant explains why he or she feels the previous decision was unfair or incomplete, and can submit new evidence. But there are no oral arguments, no retrial. It’s based on the record of the earlier hearing plus whatever additional documents are submitted.

  22. CJOArdis says:

    So it’s not certiorari, I mean. The high council and the First Presidency take all appeals; they don’t decline any.

  23. Nate W. says:

    For both an appeal to the Stake President and to the FP? If so, then it seems a member tried by a bishop does not have the benefit of the high council on appeal in the same way a person who was originally tried before the SP…

  24. Mark Brown says:

    CJO, I agree with that completely, and think it is a very healthy perspective.

    I have been around this church long enough to have seen disciplinary councils produce some appalling outcomes. I have seen them used to carry out personal vendettas and to intentionally abuse vulnerable members.

    I want to push back at so much of the discourse that has been going around lately: “The spirit directs everything! It’s all about love!” I believe that argument is absurd. But, given the raw material God has to work with, we might be stuck with it.

  25. I wasn’t aware that I had treated you poorly at time in the past, CJO.

  26. CJOArdis says:

    NateW, I don’t think any appeals under any of the systems mentioned in the OP are retrials, at least not until/unless the appeals court directs a retrial. But the high council does review the verbatim record of the original trial, as if they were there, and the full council considers and votes, so they have the practical benefit of that body.

    Karen would be right to be irritated with my continued and prominent participation, so I’m bowing out. These councils are not mysteries, though; they can be understood and appreciated even by women who do not sit on the courts. The experience for the accused no doubt would be different were women to participate, but to conclude that as a woman neither Karen nor I can “validate the experience” of male court participants is a little too political, a little too untrue.

    G’bye.

  27. Nate W. says:

    “So it’s not certiorari…. The high council and the Fist Presidency take all appeals.”

    Maybe it’s just my grumpy lawyer hair-splitting, but as I see it, the major difference between an appeal and petition for certiorari is oral argument and the obligation of the hearing officers to respond to the arguments made and explain their decision. While I do not doubt the dedication of the FP to deciding appeals fairly, an appeal decided without a written or oral response to the arguments raised is no different than declining an appeal.

  28. All of this talk of courts, the accused, witnesses, evidence, judges, discipline–it makes my blood run cold. Having never been in a disciplinary council and being unable to access the handbook, I suppose I hadn’t give it much thought. But the more I read, my eyes keep getting bigger and bigger and the pit in my stomach yawns wider and wider. Call me a hippie, skipping in the field Christian if you must, but I think human beings were meant to work out their sins and their relationship with the divine in a wrestle before God and God alone. If a trusted spiritual mentor has advice or counsel to offer to help a person find relief through the atonement, all to the better. But my skin crawls when I think about the arbitrary, secretive way church discipline is handled now. When it works perfectly, with an abundance of love, it seems to be in spite of, not because of, the a structure that I see as out of place in Jesus’ church.

  29. Ardis, I may not always agree with you, but I’m absolutely never irritated by your comments. You are smart and challenging, and I leave every exchange with a more nuanced view than I entered it.

  30. Your solitary wrestle might be entirely adequate if you lived a solitary life and sinned the sins of the hermit, O.O, but since we live in communities, those sins that affect families or the integrity of the community need to be addressed by the Church.

    Much better that there be a scriptural mechanism to remove the armed bank robber, the abuser, the embezzler, the serial adulterer (a few examples from my childhood ward) from full faith and fellowship in the Church, and from positions of trust in the Church, than that there be no boundaries and no protections for our tender-hearted Saints, particularly for our children.

  31. It is the idea of “not judging solely by the act, but by the heart” that I find most unsettling. The notion that any person could definitively know the heart of another seems optimistic at best, and potentially very damaging.

  32. Yes, there’s a real tension in the context of church discipline between trying for some fairness (I.e. pages and pages of procedural rules surrounding disciplinary councils) while leaving the maximum amount of arbitrariness available to allow for spiritual guidance. I wonder if it was recognition of this tension that led to the secrecy of the definition, the many rules, and the process itself–maybe a tacit acknowledgement that a process this arbitrary could not be held up as fair? I don’t know. This is a puzzling and confounding situation.

  33. Rtc, the spirit does. Some of us lean toward the idea of faith in our fellow man and trust their decisions are guided by the Spirit. Others I am starting to see more and more second-guess that concept.

  34. DQ, like almost everything else, absolutes in this don’t hold up to reality.

    It’s not “second-guessing” to know, based on first- and second-hand experiences, that not all disciplinary decisions are guided by the Spirit. We can “lean toward faith in our fellow man (notice the irony in that simple word choice) and trust their decisions (generally) are guided by the Spirit” but still allow for mistakes (inconsequential and catastrophic) in council decisions sometimes. We can believe passionately in the concept and even support it in practice by not wanting councils to become strictly and exclusively legalistic without engaging in second-guessing.

    It’s the fact that such situations involve, by necessity, humans with all of our weaknesses that makes this an important and difficult discussion. Denying that humanity and the attendant mistakes it causes (even only in theory and vocabulary) obscures reality and truth – and exacerbates already difficult situations.

  35. Also, the simple fact that there is a built-in appeals process that can overturn local decisions testifies to the reality of mistakes and the need, sometimes, to address them.

  36. Nice analysis. It Seems to me that by their design disciplinary councils aren’t particular about fairness or justice, but about whether the accused, whose guilt is presumed (or acknowledged), is willing to submit to whatever penalty is deemed appropriate.

  37. Great analysis, Karen. I am particularly struck by the transparency issue, and by john f.’s comments expanding on it. So the accused person might not have access to the Handbook, but the men running the council also miss out by not knowing decisions made in the past. It strikes me that it’s almost like a double blind study, where someone is trying to see what weird outcomes might result if enough information were withheld from participants. Doesn’t seem like a good way to run any type of court.

  38. Ray, thanks. I think you’re spot on. Casey, depressing, but probably. Ziff, I echo your praise of John f.’s comments. He’s pretty much the best.

  39. Every council in which I have been involved has been, fundamentally and foremost, about trying to do the right thing – about fairness and justice and, to whatever extent possible, mercy. I have been involved in more than one case where the initial inclination changed as a result of the council.

    That isn’t absolute and universal in practice, which ought to cause soul-searching and hesitation (even fear and trembling, ideally) – but it is the intention and, I believe, in most cases the reality. Remember, the vast majority of cases actually are quite cut-and-dried as to what happened and what ranges of options are available. Charges of apostasy are the obvious exception – in some cases. In other cases, even that charge is quite matter-of-fact.

  40. It is cases like John’s and Kate’s that highlight the messiness of apostasy charges – that challenge the easy and automatic assumptions of absolutes.

  41. Karen, the assertion that the definition of apostasy as defined in Handbook 1 is unavailable to the general membership is incorrect. As a couple of examples, the very wording is discussed in:

    James E Faust discussing priesthood and covenants in his 1993 General Conference address in the Priesthood session – which was published in the Ensign.

    In the 1994 Statement by the First Presidency and Quorum of the Twelve concerning the publicity around the September Six disciplinary councils.

    In the 1994 Ensign (a repetition of the public statement above)

    In the Book of Mormon Student Guide, Lesson 22, for Mosiah 25-29

    More general discussions of the principles are discussed elsewhere in General Conference talks and in lesson manuals.

    To say that the overall concept of Church discipline is not available to the general membership and that the proceedings are unknowable unless you have access to the Handbook 1 is also incorrect. If you search LDS.org you’ll find a couple of articles that delve fairly deeply into pretty much all of the basics of a disciplinary council. In fact, Elder Ballard’s article in many parts is practically verbatim from what is in the current manual.

    http://www.mormonnewsroom.org/article/why-is-a-mormon-excommunicated

  42. But OD, you know what you’re looking for. You know that there is something to look for, and you know, when you find it, that it is similar to CHIv1.

  43. That’s irrelevant to the point you made Karen that members who don’t have access to Handbook 1 would not know the definition of apostasy and what the penalties could be.

    In the case of apostasy both the substantive rule (i.e. definition of apostasy) and the procedural guide are contained in the first volume of the Church Handbook of Instructions (CHIv.1), a publication that is not made available by the church to anyone but priesthood leaders and their priesthood holding clerks. Within the Mormon church, only men are allowed to hold the priesthood. Consequently, while all men have the potential of having access to the CHIv.1, no women have that same potential. Ironically, this issue of gender inequality is why Sister Kelly is being summoned to disciplinary proceedings. This means that unless Sister Kelly has found a copy of the CHIv.1 on line, or been given access to it by a man, she would not have seen the definition of apostasy that she is charged with violating. Neither would she have known the procedural consequences of that violation.

    If Sister Kelly attended Sunday School, paid attention to General Conference or did a little background research on the September Six she would have easily found this information. Knowing that it is also in Handbook 1 is not a prerequisite in this case.

  44. Angela C says:

    I guess for me the question about the church’s definition of apostasy isn’t whether Kate knew what it was but whether she would agree she “committed” it. If her statements are true that she believes any change in ordination requires revelation to the prophet for the church, that’s not slandering church leaders but upholding them. I suppose we can’t know her heart. Hopefully she will go to Virginia to ensure her bishop does know her heart rather than assuming he does in her absence.

  45. rameumptom says:

    I think the comparison is just another atypical attempt to push social justice upon the Church, rather than recognize the one big difference: international law is not led by the Lord, the priesthood keys, nor the Holy Spirit. This is something you conveniently omitted.
    Why are we not seeing how the international court system could do better by not only having procedural issues in place, but also to be guided by a higher power? The international courts have made some very powerful decisions that would take away people’s freedoms in the name of social justice and unity. Not sure if you are really giving the whole picture here.

    If the Church was just a church without the restoration claims it has, then I would agree with you on these things. But that is why our voluntary status, as you describe it, is so different from joining a country club. When we “volunteer” we make covenants. Covenants to sustain prophets and apostles, bishops and stake presidents. Covenants to keep the commandments, to sacrifice everything for the Lord, to submit to the Lord’s chastening and to lead people to Christ. Nowhere is there a covenant to establish a new social order or social justice.

    When our efforts to establish our own view of social justice mars our covenantal relationship with Christ and the Church, then there is a pattern set down in the D&C for disciplinary action. You may not like it, because it does not fit your views of international social justice, but it is the pattern set by the Lord, according to LDS teachings.

    So, it comes down to this: do we really believe the Church, though imperfect, has been restored and established by God? Or do we believe the world offers a better choice?

  46. It comes down to this: do we really believe that our covenants, though made in the service of an imperfect church, preclude the possibility of offering substantive critiques and comparisons of that church’s disciplinary process with other courts? Or do we believe that the church acts as an infallible conduit of God’s will and is immune to that sort of analysis?

  47. Geoff - A says:

    I agree with the learned article. I have been accused of apostasy, by an ultra conservative bishop, who I had a couple of disagreements with. He was a high school teacher, and trying to get the sex ed programme removed from the school: I was the president of the parents and citizens committee, and in response to his request, asked for a presentation about the programme to the p&c, and we were very impressed, and voted for it to continue. Euphenasia was also discussed between us.

    He then hand delivered to my home a letter inviting me to appear in his office on a certain date to answer the charge of apostasy. In the mean time I discussed it with other members and was advised that he could not try me because I was a HP. When I turned up he said “would you agree with me that you have committed apostasy, and if you don’t agree with me that is apostasy”. My response was that he had no power because I was a HP. Had I been a woman he would have excommunicated me.

    As far as appeals to the SP go, he did not want to upset the bishop he had just called, so basically did nothing. 9 months later the bishop was granted a transfer out of the ward, and I was called into the bishopric. Had I been a woman I would have been exed, and I very much doubt the SP would have done anything to upset the bishop.

    It may surprise you but I did not know that a bishop could not ex a m priesthood holder, even though I had been on a number of bishoprics before.

    I agree with the original post, we have a strange, system, that has little to do with justice, fairness, transparency, or love.

  48. rameumptom,

    “[L]ed by the Lord”, yes, but always through fallible men who are always susceptible to D&C 121:39. It is not faithless to point that out. The system (and it is a rather openly a quasi-judicial system — we are hardly drawing lots here or examining the livers of sheep) always needs to do its best to guard against human error.

    Karen, this is a great post. Your expertise in the legal system of an Islamic country — whose elders might often claim to be being “led by the Lord” and therefore not in need of your meddling — really shines through here. Thanks.

  49. Thanks all for your thoughtful comments. A couple responses: OD, you are reverse engineering the problem. If the point is to have rules that are clear and publicly promulgated, searching through thousands of pages of info for clues as to the final product hardly comes close to the standard discussed above. Rameumptom: the term “international law” is really problematic and squishy, which is why I don’t use it in the OP. the OP refers to basically a sub field of legal practice that seeks to find common elements of fairness in local dispute resolution to determine guiding principles for legal development. It is more akin to a specialized field of comparative law than international law. Nowhere am I invoking decisions of the ICJ, ICC, ICTY, etc. which gets to the point that Ronan and Casey are making. I am discussing bureaucratic decisions that have led to procedural rules that have a form of “court-like” functions, but do not incorporate elements of a court system that would guard against abuses. In this way, I’m arguing, the structure can actually impair the inspiration that everyone deeply hopes comes into play.

  50. Meg Stout says:

    This is an interesting discussion. It certainly seems reasonable to me that the handbook could be made available more widely. It also seems reasonable that policy could be changed to allow women to participate in these councils.

    It would also seem reasonable to suggest that women who have been endowed in the temple should be accorded the more formal option of a stake level disciplinary council, should they request it.

    Historically, a challenge could have been the lack of social interaction between the male and female circles, combined with the perception that women are more social beings, e.g., more prone to engage in gossip.

    While I don’t know that every disciplinary council would necessarily warrant full male/female participation were rules to change, it would be delightful if those called in for a council could request full male/female participation, and if women could request that their matter be heard at the stake level, rather than merely at the ward level.

    The leaders I interact with would be happy to comply with whatever instructions came from Church headquarters. But I stop short of demanding that the changes I propose above be implemented.

    It has been mentioned that the Mormon definition of apostasy focuses on actions rather than thoughts. This is presumed to be a disadvantage. But I perceive this as saying that thoughts are allowed to wander without risking Church discipline. It is openly advocating by word and deed that we cross the line that triggers discipline. I’m sure God looks on the heart, but I’d just as soon not have others presume to know my heart and discipline me without my having produced outward evidence of my imperfect understanding.

    Non sequitur. I was participating in a ward council once when the sitting bishop asked for feedback on the meeting schedule for the new year. I was surprised when some of the women in the room made suggestions such as starting at 1000 to allow the teenagers a chance to get more sleep or inserting an extra hour into the block of meetings so that the Relief Society room could be set up without rushing. From my perspective, we had been assigned the 0900 start time after years of enjoying the afternoon start time. And the three hour block is pretty standard – not something to modify merely to enable a table cloth to be spread with more decorum.

    As for Kate and her friends thinking there was nothing problematic in the steps they were taking, my husband and I were at an event Kate and some of her friends were at in late April. My husband likes to take notes. It helps him focus. And when he’s tired, he sometimes stands up. One of the ladies approached my husband, making it clear that she thought he was some kind of spy. Ironically, my husband was really sad to learn that Kate had been there and he’d not noticed. He would have liked to chat with her. He honestly loves everyone, which is why the accusation was so amusing.

  51. wreddyornot says:

    Meg Stout said the following above by writing those words in this public place:

    “…It certainly seems reasonable to me that the handbook could be made available more widely. It also seems reasonable that policy could be changed to allow women to participate in these councils.

    “It would also seem reasonable to suggest that women who have been endowed in the temple should be accorded the more formal option of a stake level disciplinary council, should they request it….”

    “…It is openly advocating by word and deed that we cross the line that triggers discipline….”

    So, in what she said and suggested, did she arguably cross the line, given her own definition? If not, what’s missing in what she did or didn’t do? In her definition?

  52. wreddyornot,

    I think she didn’t cross the line. She isn’t advocating. She isn’t weakening the faith of her neighbor. She isn’t condemning church leaders. She isn’t trying to force a change. Rather, as I read it, she is engaging in peaceable and intelligent conversation.

  53. Has it come to this really? How disheartening. As if it wasn’t hard enough to be a Mormon already, we’re rewriting the dog whistles to be even more passive aggressive. Sigh.

  54. Karen, this is a great analysis and highlights a particularly sticky wicket, especially for Church discipline where we have, or should have, the expectation that actions are taken out of love and with an eye to protecting the Church and rescuing the individual. (Note that I said “expectation,” which is unfortunately not always fulfilled.)

    The tension we’re seeing here is one between a _legal_ system and a _justice_ system. We hope and pray that justice will be done as we operate under influence of the Spirit, but as human foibles take their toll, we look for ways to codify things and write down rules that ostensibly prevent arbitrariness and inconsistency, in order to prevent personal opinions from affecting outcomes that should be decided by inspiration.

    But there is a certain revelatory beauty to inconsistency (although not to arbitrariness), as a couple of commenters have pointed out. It allows the consideration of issues of the heart, not just the rules. The more rules we have, the less leeway we have to make merited exceptions and to vary the results based on individual circumstances and inspiration.

    Far too often in today’s secular society, at least in the US, we see the effects of a _legal_ system; it achieves justice only through the efforts of individuals. When the system takes its course, great injustice is often done. That shouldn’t be the condition we try to achieve in the Church. Balancing rule of law and rule of love – that’s what we’re really trying to do.

  55. Obviously there’s room for a lot of difference of opinion, in re. what lines Kate Kelly may or may not have crossed, especially since our lines as a church are not always clearly defined. But to say that “she isn’t advocating” (as ji says) is simply not the case.

    The OW mission statement is very clear and very carefully crafted. It doesn’t really leave room for revelation, it doesn’t seek further guidance from prophetic leadership. It states that the OW movement “believes women must be ordained”, is “committed to work for equality and the ordination of Mormon women”, and they state that they “intend to put [them]selves in the public eye and call attention to the need for the ordination of Mormon women” [emphases added]. That is not a humble, compromise-seeking position, and it places itself in direct opposition to the current position of Church leadership. Further, the statement “[w]e sincerely ask our leaders to take this matter to the Lord in prayer,” in context of the absolute positions noted (“must,” “committed,” “need”), is not an offer to accept guidance. It’s an invitation to the Church leadership to get their thinking in line with OW. It’s an open challenge.

    Angela writes: “If her statements are true that she believes any change in ordination requires revelation to the prophet for the church, that’s not slandering church leaders but upholding them.”

    Strictly speaking, she probably does believe that any change in ordination requires revelation to the prophet. However, framing the discussion in a way that reads like she’s gotten the revelation and is inviting the prophet to catch up – **which is the clear implication of the OW mission statement** – is not upholding church leaders. I do agree with Angela’s comments in another context that the timing of the action is unfortunate, given her move.

    Geoff-A says, “I agree with the original post, we have a strange, system, that has little to do with justice, fairness, transparency, or love.”

    Actually, the *system* has a lot to do with justice, fairness, and love. It’s the execution that sucks sometimes. It especially sucks when what you mean by “unfair” is “disagrees with my own viewpoint.” As I noted above, some of the unique characteristics of the church system, that sometimes lend themselves to abuse, actually make it possible to achieve “justice, fairness, and love.” (The lack of transparency can also facilitate justice, as any innocent person who has ever been charged with a crime, written up in the news, and later acquitted by a jury but convicted by public opinion would probably agree.)

  56. Why are we compelled to equate the Church disciplinary system with secular justice? Is it because we are so familiar with the way the courts and lawyers administer such a remarkable system of equitable peace, fairness, and justice throughout this happy world?

  57. davidferg says:

    [I hope this isn't redundant to other comments, since I pretty well only skimmed them]

    The OP portion of “Rules promote certainty and avoid arbitrariness,” if fully incorporated into church procedure, would measurably increase the legalistic side of the church in a way that smacks of the worst parts of the correlation era.

    1.) A standardized definition of apostasy may not be a good thing. Anyone who’s studied common law (I can’t speak to civil law) will recognize that definitions of crimes are difficult to construct and present problematic loopholes that generally only get plugged by either periodic changes to legal definitions or through legal precedent. Do we really want the high up leaders periodically redefining apostasy, or having local leaders comb through precedent to determine a ruling? Do we want local leaders to be bound by the precedents of other leaders (if they’re not, then I imagine that precedent would be practically useless anyway). As far as I can see, either scenario would stifle the kind of open-ended revelatory experience we hope our leaders will go through in disciplinary settings. For a church that is supposed to be grounded in revelation, we shouldn’t ramp up procedures that discourage its implementation.

    2.) There’s actually a couple positives to non-transparent proceedings. First, keeping them private allows, in most cases (Kelly and Dehlin notwithstanding), the proceedings to be maximally confidential (not fully, but maximally), which benefits the disciplined member as much as it does leaders. Second, transparent access into the decision-maker’s thinking process is ultimately only useful in situations where there are rules of what evidence the decision-maker may access. Since I don’t think there is an even remotely compelling argument for why disciplinary counsels should have to adhere to rules of evidence, transparency really only serves those curious as to the decision-making process after-the-fact (I see no reason why it makes a difference in the informal appeals process a disciplined member may go through). But since confidentially surely trumps curiosity, transparency serves little purpose.

    Also, in the final section, “Adjudication should be independent and reflect the makeup of the community.” While there’s a good reason to suggest that women should be involved in disciplinary counsels as much as men, as far as standards of judicial fairness go, in most countries with strong, independent judicial systems the defendant has little say in the gender of the trier of fact. The US is unique and sometimes mocked in how often we allow juries.

    In saying that, I agree with Meg Stout that at the very least endowed women should be disciplined at the stake level.

  58. New Iconoclast,
    I’ve seen lots of people explain what Ordain Women does and doesn’t want and, foolishly believing the actual representatives of that organization over the random internet trolls who I saw making this claim, I never bothered to look at it. But you inspired me. Thanks for that. Here is the mission statement you excerpted to present it without context and that you mangled in order to misrepresent them. Let the Lord judge between thee and them, you internet troll.

    “The fundamental tenets of Mormonism support gender equality: God is male and female, father and mother, and all of us can progress to be like them someday. Priesthood, we are taught, is essential to this process. Ordain Women believes women must be ordained in order for our faith to reflect the equity and expansiveness of these teachings.
    Last year the Church of Jesus Christ of Latter-day Saints reaffirmed its commitment to equality: “The Book of Mormon states, ‘black and white, bond and free, male and female; … all are alike unto God’ (2 Nephi 26:33). This is the Church’s official teaching.” Ordain Women embraces this statement. We are committed to work for equality and the ordination of Mormon women to the priesthood.
    Based on the principle of thoughtful, faith-affirming strategic action, Ordain Women aspires to create a space for Mormon women to articulate issues of gender inequality they may be hesitant to raise alone. As a group we intend to put ourselves in the public eye and call attention to the need for the ordination of Mormon women to the priesthood. We sincerely ask our leaders to take this matter to the Lord in prayer.”

    Now perhaps you feel I am doing you a wrong by stating you are misrepresenting Ordain Women. So, let’s go through what you said, and what they actually said, so that we can get a real sense of whether or not I’m wrong.

    NI:The OW mission statement is very clear and very carefully crafted. It doesn’t really leave room for revelation, it doesn’t seek further guidance from prophetic leadership.

    OW: We sincerely ask our leaders to take this matter to the Lord in prayer.

    If we choose to take the OW mission statement at face value, they are asking the Brethren to ask the Lord about women’s ordination. They think they know the answer, sure, but they’d like the Brethren to either confirm or deny it. That seems like leaving room for revelation and prophetic leadership to me. But if you read it uncharitably and believe that they are lying, lying, lying, then sure your reading works, too.

    NI: It states that the OW movement “believes women must be ordained”, is “committed to work for equality and the ordination of Mormon women”, and they state that they “intend to put [them]selves in the public eye and call attention to the need for the ordination of Mormon women” [emphases added].

    Let’s look at those statements in full context, shall we? Also, learn html if you want to emphasize things.

    OW: Ordain Women believes women must be ordained in order for our faith to reflect the equity and expansiveness of these teachings.

    This statement in context reveals a deep respect for the Lord’s priesthood and a belief that participation in the exercise of priesthood keys would be ennobling for women. This is not a demand nor is it an imperative.

    OW: Last year the Church of Jesus Christ of Latter-day Saints reaffirmed its commitment to equality: “The Book of Mormon states, ‘black and white, bond and free, male and female; … all are alike unto God’ (2 Nephi 26:33). This is the Church’s official teaching.” Ordain Women embraces this statement. We are committed to work for equality and the ordination of Mormon women to the priesthood.

    In context, this statements again demonstrates that OW takes the counsel and statements of Church leadership seriously. The commitment to equality is grounded in the church statement and the scripture quoted. The commitment to ordination could be charitably understood as a commitment to the belief stated earlier in the mission statement. Or it could be a bunch of people hell bent on ruining the church.

    OW: Based on the principle of thoughtful, faith-affirming strategic action, Ordain Women aspires to create a space for Mormon women to articulate issues of gender inequality they may be hesitant to raise alone. As a group we intend to put ourselves in the public eye and call attention to the need for the ordination of Mormon women to the priesthood.

    So, here, OW is committing to maintaining a discussion of women’s ordination, but their message is more expansive. They are willing to get out there and talk in order to create a space for women who aren’t committed to women’s ordination to be able to bring up their concerns. They are taking the heat, so that their sisters throughout the church won’t have to. Ideally, folks wouldn’t give them hell over a difference of opinion (as Sisters Isom and Moody stated), but let’s be realistic. And, frankly, they’ve already been successful by this measure. And more power to them. If nothing else, it helps us identify who the useless internet trolls are.

    NI:That is not a humble, compromise-seeking position, and it places itself in direct opposition to the current position of Church leadership.

    OW: Yours is definitely not a humble, compromise-seeking, charity-giving, or actual-comprehension-skills-demonstrating reading. And, as such, I’d say it places itself in direct opposition to our Lord and Savior, Jesus Christ. Repent, New Iconoclast. Repent!

    NI: Further, the statement “[w]e sincerely ask our leaders to take this matter to the Lord in prayer,” in context of the absolute positions noted (“must,” “committed,” “need”), is not an offer to accept guidance.

    OW: I’ve already tried to demonstrate that your twisting of OW’s words, making them offenders for a word, indicates that your reading was not done in good faith and doesn’t represent anything but your biases. Also, you’re ugly and your mother dresses you funny.

    NI: It’s an invitation to the Church leadership to get their thinking in line with OW. It’s an open challenge.

    OW: Your reading is an invitation to OW to go home and shut up. It’s an open challenge. You are a troll.

    Have a nice day, New Iconoclast. Also go home and repent.

  59. I just read that the holy father excommunicated the Sicilian mafia today — the whole bunch of them — and apparently with no process or fairness at all. They were excommunicated as a class, and not on an individual by-name basis. No notice, no procedure, no hearing, no record, no appeal. Good for him.

  60. Well, here’s the next word from the pope’s handlers–

    Vatican spokesman Father Ciro Benedettini said the pope’s stern words did not constitute a formal over-arching decree of canon (Church) law, regarding excommunication, which is a formal legal process.

    Rather, he said it was more of a direct message to members of organised crime that they had effectively excommunicated themselves, reminding them that they could not participate in Church sacraments or other activities because they had distanced themselves from God through their criminal actions.

  61. Another question:

    I’ve seen disputes on the question of whether a disciplinary council is recorded, whether stenographically or by means of an audio recorder. Does anyone know?

  62. rameumptom says:

    Hand written notes by the clerk. Nothing is recorded.

  63. Nate W. says:

    Thanks, Rameumptom. An I correct in assuming that a person appealing the decision does not get to review these notes in order to suggest inaccuracies to the appellate hearing officer?

  64. davidferg, there’s a difference between keeping an individual proceeding confidential, and keeping the rules surrounding the procedure secret. I cannot think of one good reason to keep the rules secret except to maintain maximum flexibility for the church. As to a confidential proceeding, I suppose that should probably depend on the nature of the charge. (Ie, in a criminal system, juvenile cases are often sealed.). I don’t really have an issue with matters of private sin being kept private if that is what the accused wants, but in the case of apostasy charges, I think it’s a different matter. I kept my discussion in the OP specific to Sister Kelly’s case, and specific to the apostasy charge to try and create a set of circumstances narrow enough to be discussed and analyzed.

  65. Ji, I know less than nothing about what excommunication is or means or how it is effected in a Catholic context, so can’t really comment on your parallel.

  66. We’re talking about how excommunications in the church are unfair because they don’t conform to modern sensibilities — and then, here’s the news of another church’s excommunication with less procedure than our own (and then later the handlers spoke up). I think modern sensibilities is probably the wrong measure to judge a church’s rules — there are other matters and factors, correct principles if you will, that are sometimes or always more important.

  67. Angela C says:

    Great article. The only thing I will add is that we seem to think of DCs as judicial trials, but in reality, I believe they are sentencing hearings. The guilt is already presumed pre-trial if I am not mistaken.

  68. “Ji, I know less than nothing about what excommunication is or means or how it is effected in a Catholic context, so can’t really comment on your parallel.”

    I might be able to help with that.

    First of all, I want to start by saying what excommunication is NOT in a Catholic context. Excommunication does NOT unbaptize, unconfirm, or unordain a Catholic. The Church does not unbaptize a Catholic for the same reason that rabbis do not regrow the foreskins of apostate Jews. It’s impossible. Baptism is eternal, it cannot be undone.

    What Catholics call “excommunication,” Mormons call “disfellowship.” It means that a person cannot receive confirmation, matrimony, holy orders, or the Eucharist (most of all) until they are brought back into communion. They also cannot hold certain positions in the Church. This is tied into the belief that people who have committed very, very serious sins (like murder and theft, which are the daily activities of the mob) cannot receive certain sacraments until they have gone to confession. (I’m not sure if an excommunicated person could receive Anointing of the Sick. I think they could if they were about to die.)

    Who excommunicates? A bishop,(The pope is a bishop.), though it is possible for a person to excommunicate himself. With the former, the person would have to be sinning very, very publicly and refuse repeated calls for repentance. In such cases, the bishops could declare the person should not receive communion, and that priests and Extraordinary Ministers of Holy Communion (lay people who administer the Eucharist) should deny him communion until he publicly repents. He also cannot receive the other sacraments I mentioned above or serve in an official church capacity until he repents. In the modern day, this is actually pretty rare. Many conservative Catholics lament its rarity. The governor of New York, for example, actively promoted gay marriage and signed it into law. He also cohabited with his mistress and bragged to the media that he was “living in sin.” He was not excommunicated, to the chagrin of many conservatives within the Church. I’m sure there’s a lot more that’s covered by Canon Law.

    Most excommunications today are literally self inflicted, which means a person commits an action that, under Canon Law, renders them immediately excommunicated. A famous example (within Catholic circles) was a bishop who opposed many of Vatican II’s reforms. He ordained other priests as bishops and set up a parallel church, so to speak. These actions automatically excommunicated him. For the laity, performing of having an abortion incurs excommunication, as does joining the Masons, interestingly enough. (The Mason rule goes back to 18th and 19th century continental Europe, where many Masonic lodges were actively anti-Catholic and worked to oppose the Catholic Church.)

    How is excommunication lifted? Usually a bishop lifts it, but it depends. In the case of abortion, most bishops in the US allow parish priests to lift the excommunication. This means that if I had an abortion, I would simply have to go to confession. I could go to confession at 3:30, go to Mass at 4:30, and receive communion at 5:30. I’m not exaggerating. In the case of more public sins, like the rebel bishop, it would probably involve some kind of public repentance. The rebel bishop, for example, would have to disband his splinter group (or at least resign from it) before he could return to the sacraments. Sometimes a person has to recite a creed.

    So, what does this mean for the mobsters? It means that the pope is saying that the mobsters should not receive communion until they quit their lifestyle. It also means that bishops should tell the mobsters, “You are not allowed to receive communion until you quit the mob and go to confession, and I’m telling the priests in the diocese that they should deny you communion until you do.” Will this happen? I wouldn’t hold my breath.

    More information about excommunication in the Catholic Church is available in the Code of Canon Law, the laws governing the Church. It’s available online through the Vatican website.

    http://www.vatican.va/archive/ENG1104/_INDEX.HTM

    Warning: it’s very long, and probably very boring, as most bylaws are.

  69. A disciplinary council is not a judicial trial and it is not a sentencing hearing. To me, it is simply a matter of a common judge deciding whether a person has committed serious sin and whether he or she is repentant, and deciding if some action is needed to assist in the repentance process or to protect other members of the church. Its all done at the local level, because membership in the church is all local. The scriptures provide some guidance, and teach us that if the member is repentant, he or she generally should not be cast out.

    It is our modern sensibilities that muddy the waters — based on our modern sensibilities and liberal democracy ideals, we think of the council as a judicial trial with a sentencing. I wouldn’t call excommunication a sentence — rather, excommunication is the local church leader’s saying that the person is cast out from the body of saints, but the excommunicant loses no money or liberty or freedom — he or she just isn’t numbered among the flock anymore, his or her actions having being found incompatible with continued membership for the time being.

    I try to think of these things in New Testament terms. If a local leader in a far-away village was grieved by a neighbor and fellow saint’s behavior, based on testimony of witnesses, he might feel compelled to blot out his name from the record book and declare he is no longer a fellow saint — they would still be neighbors, of course, but not fellow saints. The record book exists only in that village. There would be no thought of appeal. But the neighbor could re-join the body of saints whenever he or she became ready.

  70. Nate W. says:

    Angela C.:

    “[W]e seem to think of DCs as judicial trials, but in reality, I believe they are sentencing hearings. The guilt is already presumed pre-trial if I am not mistaken.”

    It’s pretty hard for it to be otherwise when the person convening the hearing is the same person as the judge.

    ji:

    “I think modern sensibilities is probably the wrong measure to judge a church’s rules — there are other matters and factors, correct principles if you will, that are sometimes or always more important.”

    Calling procedural fairness a “modern sensibility,” as though it were just a fad or fashion, troubles me greatly. If we were 100% confident that God was directing the actions of the council, it wouldn’t matter if we took evidence or just decided a person’s guilt by ordeal or lot. The reason we don’t do that is because we know the process can be abused and mistakes can be made. That’s the entire point—while procedural fairness does not guarantee just outcomes, it makes them more likely. Judging solely by the current procedures employed by the Church, there does not appear to be a great deal of concern about abuse of church discipline by local ecclesiastical leaders.

  71. ji, I addressed all of your arguments in the original post. We get it. You think the parallel is unwarranted, and you want to recast someone’s loss of eternal covenants as a “well at least they didn’t lose money” negligible occurrence. Thank you for reiterating the points I anticipated and addressed. Next?

  72. Nate W. says:

    In fact, as I think about it, trial by lot has a venerable pedigree in deciding a person’s status as a sinner. The Church could send out a Urim and Thummim (the kind in 1 Sam. 14, not the seer stones) to each Bishop and Stake President. Think how much time it would save…

  73. Kristine says:

    “but the excommunicant loses no money or liberty or freedom”

    Yeah. Only salvation and eternal life. Who’s muddying the waters with secular modern sensibilities??

  74. Some defenders of the status quo seem to want it both ways: church covenants are eternally binding and of critical, soul-binding importance, but when it comes to excommunication our modern notions of “fairness” and “justice” don’t matter because, hey, it’s all voluntary and it’s not like you’re losing anything tangible, right?

  75. Yes, exactly, Kristine and Casey.

    Excellent post and comments worthy of the post from many sides. SGNM, I particularly appreciated your contributions. Ardis, that was an epic reveal of gender/identity, and I liked the conversations around your points as well.

    It’s just so gratifying to see a thread discussion happening on this level of depth and intelligence on a topic of such importance.

  76. Winifred says:

    You cannot lead an open rebellion to Temple Square and expect zero consequences. Life don’t work like that and Kate Kelly knows this.

  77. Angela C says:

    Well played, Ardis. I’ll have to try that sometime.

    Winifred, I am not sure whether Kate considered her actions an open rebellion. Obviously you and some others did. Advocacy generally doesn’t see itself as rebellion. It’s on behalf of people, not against people. Against whom was she rebelling? The PR team?

  78. Just a thought

    The ease with which someone can be excommunicated and the thoughts given above that, well, it isn’t like money is involved, cheapen the meaning of our membership in the Church. If we truly believe that excommunication was similar to an eternal death sentence, then both the offenders and the judges would take much greater pains in the judgement. I suppose we, Mormons, think that excommunication is just the demotion to the terrestrial kingdom, not such a big deal.

    If someone can be excommunicated over a philosophical or theological disagreement, or causing the leadership a little discomfort, and thus being banished from the presence of God, if the punishment fits the crime, then loosing the celestial kingdom is not much of a punishment because it is not much of a crime.

    We should not cheapen the celestial kingdom in this way.

  79. Winifred says:

    Angela C
    The argument of it’s the PR department is really old. They put out nothing that has not been approved by the First Presidency and the 12.

  80. Karen H. says:

    Winifred, really? The whole FP and Qof12 approve every PR release?

  81. jack fuller says:

    Sorry but this left wing approach to Church governance is substituting man’s version of justice for God’s. No real Mormon would suggest that is an improvement.

  82. rameumptom says:

    Jack, To be fair, this is not just a left wing issue. The Church recently excommunicated Denver Snuffer and another right wing radical. It is not that there is a specific belief system that is being attacked here. It is the behavior and process that some choose, demanding change and taking it to the press, etc. No longer is it an issue of respectful discussion, but one of demands.

    There are members on both the right and left with concerns on different issues. The Church is willing to listen and consider those things. However, major changes require major revelation.

  83. Denver is not under scrutiny nor has he been charged with anything let alone excommunicated. He says so in his June 14th and 23rd postings. Furthermore, may I suggest there are groups of people who prefer to muddy the waters rather than clear them up. They create dissention where none existed before. Some of these people are the supporters of the OW group. By and large they sound like socialists. Only political left wing radicals say the things these say. I have yet to read of any politically conservative Mormon getting ex’d for making such a spectacle of him or herself.

  84. rameumptom says:

    That’s funny, because he states he was excommunicated last year: http://denversnuffer.blogspot.com/2013/09/yesterday.html

    http://en.wikipedia.org/wiki/Denver_C._Snuffer,_Jr.

    Now, he may not recognize his excommunication, but his stake president clearly did so, due to his insistence that the Church leaders were in apostasy for not doing what he knew they were supposed to be doing.

  85. it's a series of tubes says:

    Denver is not under scrutiny nor has he been charged with anything let alone excommunicated.

    Time to catch up on the news, perhaps?

    http://www.sltrib.com/sltrib/blogsfaithblog/56861798-180/church-snuffer-book-lds.html.csp

    http://denversnuffer.blogspot.com/2013/09/yesterday.html

  86. “I have yet to read of any politically conservative Mormon getting ex’d for making such a spectacle of him or herself.”

    Bubbles can be habitable and work really well for some people. God bless you in yours.

  87. You are right. His June 14th posting was a timeline of disciplinary action taken in which he had previous encounters with his stake president, One of which was a comment about not being ex’d.

  88. Denver Snuffer was excommunicated. He was actively undermining the authority of the Twelve Apostles, teaching that they were in apostasy and that he was communing with the Savior whereas they weren’t.

    On the concern I pointed out above about precedent, I would point to the case of Grant Palmer. Grant Palmer was a Seminary/Institute teacher whose beliefs changed and no longer believed in the Church’s own narratives about its Truth claims. He wrote a book capitalizing on his insider status titled An Insider’s View of Mormon Origins, which actively undermined the Church’s own narrative about its truth claims and was widely distributed. He was ultimately disfellowshipped for this, not excommunicated.

    It is strange that Grant Palmer, an admitted nonbeliever, was not excommunicated as a result of his affirmative work to undermine the Church whereas KK who is an admitted believer and someone who sustains Church leaders (and whose actions, though perhaps possibly interpreted as borrowing from secular “protest” methods, nevertheless fundamentally manifest her ultimate belief in the authority of those leaders as the people who are in the position to act on her issue of concern) has been excommunicated for her (1) efforts to communicate with Church leaders, (2) have them petition the Lord for her cause, and (3) network with other members who have the same concerns about women’s voices and participation in the Church.

    This raises the question of whether KK’s bishop and his counselors are aware of or have heard of Grant Palmer and his case. It seems straightforward and relevant precedent. The outcome of KK’s case seems directly contradictory to Grant Palmer’s case. He was trying to convince people that the Church’s narrative about its Truth claims was incorrect. KK does not appear to have done anything of the sort.

  89. John, are you arguing for some sort of stare decisis principle? That would require published opinions with reasoning. There is no reason to believe that precedent has any weight in church disciplinary proceedings.

  90. It clearly doesn’t! And this proves it!

  91. Carolynf says:

    Some folks would like nothing better than to confuse the issue by mixing left wing political views into clearly an ecclesiastical one. Right John F.?

  92. jack, “No real Mormon…” Seriously? This is just a gimme in the game of ‘Name the Logical Fallacy.’

  93. Meg Stout says:

    I was interested, researching my most recent post on Joseph Smith and history over at M*, by the living Constitution concept Joseph bestowed on the Quorum of the Twelve in the final months before Joseph’s death. It really is counter to the legalistic expectations. I think this living Constitution idea is part of why the Handbook isn’t openly available to those suffering insomnia to study–because the Handbook would be merely the reflection of the living Constitution and should not become a dead law unto itself. But that’s just my opinion for why I have to find other materials to lull me to sleep at night.

    The other part of that post dealt with William Law and his excommunication and subsequent plot to kill Joseph, complete with 200 sworn co-conspirators. Ultimately the “gentiles” dispatched Joseph so Law and his sworn band of men didn’t have to dirty their hands. But I dare say those 200 and their dependents were lost to God’s Church as a result of Law’s actions. Somewhere I ran across the assertion that in late June there were as many as 700 men willing to rise up and murder Joseph if the word were given, but I can’t find the reference to the 700, only the 200.

    I will be sad if those wounded by Kate’s excommunication ended up taking themselves out of the Church. It would be particularly sad if this matter of discourse “done wrong” ended up causing even more people to leave their faith than occurred in the terrible last days of Joseph’s life.

  94. Villate says:

    I don’t know whether this adds any perspective or not. I just thought it was interesting that it happened today and that it popped up on my FB news feed along with a bunch of other stuff about “apostasy.” It’s good news, I promise. http://www.bbc.com/news/world-africa-27979782

  95. rameumptom says:

    When one considers how thin CHI 1 and 2 are, especially compared to any state or federal’s law section, we can see that it definitely is not anything like a court of law. There are some very basic structural guidelines and then instruction to seek the Spirit.

    Kate’s hearing was different than Grant Palmer’s for many reasons. First, there is no precedence set by previous events. Each case is dealt with on its own. I’ve been amazed at times at how different outcomes come out of the councils I’ve been in. Yet, while the case discusses the behavior which led to discipline, the Lord determines the final actions by reading the heart of the individual.

    That said, we must remember: Grant’s book was not read by many “regular” people, and he was not belligerent to his stake president. Kate’s actions were very visible, especially when marching up to the Conference Center during Priesthood Session with 200 other people. She has not shown any remorse for such actions, and has essentially dared them to excommunicate her by her refusal to cooperate.

    We do not usually excommunicate people with sincere doubts that they communicate. However, the behavior in Kate’s case was very clearly troubling and public. While a sad outcome, it was not a shock to those of us who understand the gospel.

  96. Luckily, since precedent has no value, Kate Kelly’s case should not be considered precedential or relevant for future cases in which people who have shared similar concerns as KK or even posted profiles to the OW website to voice these concerns are brought before disciplinary councils by local leaders trying to give effect to Elder Clayton’s direction that pressing for ordination to the priesthood is apostasy.

  97. John, that’s exactly right (though I believe you are mischaracterizing Elder Clayton).

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