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:
- The government and its officials and agents as well as individuals and private entities are accountable under the law.
- The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
- The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
- 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.