On Amicusing Religious Freedom

Over that last decade, the Church of Jesus Christ of Latter-day Saints has been party to at least 15 Supreme Court amicus briefs.[fn1] (How do I know? I searched Westlaw’s Supreme Court briefs database for “Latter-day Saints” and “Kirton McConkie.” Then I counted back to 2013. There may be more, but I think 15 gives me a pretty good sample.)[fn2]

Of these briefs, three are focused on opposing same-sex marriage. One addresses the definition of “sex” in Title IX. And at least twelve deal with questions of religious liberty (though there is some overlap—a number of the religious liberty briefs deal with religious liberty in the context of laws that limit discrimination against LGBTQ individuals.)

And what does the church say about religious liberty in its briefs? It paints religious liberty as absolutely critical. In its Carson brief, it explains that “the Religion Clauses protect the full range of religious freedom and not merely freedom from official discrimination.” In Groff, the church asserts that “Americans shouldn’t have to choose between their jobs and their faith.”

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Church Tax Exemption: An Explainer

It seems like every time there’s a church scandal—and especially one that concerns money—people start arguing that the scandal-ridden church (or even churches in general) should lose their tax exemptions. (If you want to see an example, search “mormon tax exemption” on Twitter.)

So how does tax exemption relate to churches, and especially churches that make a lot of money? I thought it might be worth a quick Explainer.

Why Are Churches Exempt, Anyway?

Fair questions. One reason is history—religious exemptions from taxation go back at least to the Bible. When Joseph imposed a 20% tax on Egyptian land, he exempted the priests from the tax.

Jump forward to the United States: while it hasn’t been a straight line, the exemption of at least some religious property from the property tax goes all the way back to Colonial days. And churches have been exempt from income taxation since the introduction of the modern federal income tax.

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The Church, the Investment Advisor, and the SEC

By now, I assume you’ve heard that the church and Ensign Peak Advisors have settled an SEC investigation, with EPA agreeing to pay a $4 million fine and the church agreeing to pay a $1 million fine. (If you haven’t, you can see some excellent reportage on the issue here, here, and here, among other places.)

So what should practicing members make of this? I think it’s tough, and I’ll try to address that at the end of the post. But first, what exactly happened?

On Not Filing Form 13F

To understand what’s going on here, we need to start with Rule 13f. Under Rule 13f, investment managers must file a quarterly report with the SEC where (a) they “exercise investment discretion” over (b) accounts containing at least $100 million of (c) “13(f) securities.” (13(f) securities are basically stock traded on a securities exchange.)

Between 1997 (when it was formed) and 2019, Ensign Peak Advisors did not file a Form 13F.

But it’s not just that EPA didn’t file a 13F for 22 straight years. It’s that EPA, at church leaders’ behest, structured their investment to avoid the rules.

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What We Owe to Each Other: Humanitarian Aid Edition

By now, I’m sure you’ve read about the devastation in Türkiye[fn1] and Syria. As of this writing, there are at least 7,700 dead in those two countries, a number widely expected to rise. In Türkiye alone, more than 6,000 buildings have collapsed, leaving an estimated 150,000 without homes. At least two UNESCO World Heritage sites, one in each country, have sustained significant damage.

In response to this utter devastation, the world has stepped up. The UN has dispatched aid teams. The EU, several European countries, the US, South Korea, Israel, Russia, Algeria, UAE, and Iraq (among others) have all sent or pledged aid.

This international governmental response is critical. But governments aren’t acting alone here: many nonprofit and charitable organizations are also providing money, tents, warmth, medicine, and other critically-needed aid. (I wrote a little about the nonprofit response, as well as some questions around nonprofit aid, here.)

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Avoiding Affinity Fraud: The Las Vegas Mormon Ponzi Scheme

Today, the Washington Post published a story detailing an alleged Ponzi scheme that targeted Mormons. (It’s worth noting that one of the alleged fraudsters—the one who seems to have thought up the scheme—was not Mormon. The rest? Yep. Mormon.) Ultimately, Mormons and others lost hundreds of millions of dollars.

Avoid Blaming the Victims

Before I go any further, I want to make something clear. Because I’ve been on the internet long enough to know that people are already formulating comments painting the victims of this fraud as greedy or as overly naive. Both reactions, while appealing, are wrong. The victims of this Ponzi scheme were, in fact, victims of people committing fraud. Blaming the victim of a crime for their victimhood is psychologically natural. But natural doesn’t mean right, morally or substantively. And blaming crime victims is neither right nor moral.

But also, both accusations miss the mark. Were the victims naive? Maybe. But remember Bernie Madoff? His investors/victims included banks, investment funds, charitable foundations, universities, pension funds, and plenty of other sophisticated people and entities. So dismissing victims as simpletons and naïfs doesn’t work.

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Guess I’ll Go Eat Worms

About a month ago, YouGov released the results of a poll asking how Americans feel about various religions. Respondents were asked a simple question: “Do you have a favorable or unfavorable opinion of the following groups, organizations, or belief systems in the United States?” They were given a random sample of 17 out iof a list of 35 religions and could choose one answer to the question:

  • Very favorable
  • Somewhat favorable
  • Neither favorable nor unfavorable
  • Somewhat unfavorable
  • Very unfavorable
  • Not sure

Among the religions in the poll was “The Church of Jesus Christ of Latter-day Saints (the Mormon Church).” And how did we fare?

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Profits, Bonneville, and the Church

Once upon a time,[fn1] a couple wealthy alumni left all of the shares of the Mueller Pasta Co. to NYU’s law school. The donation kinda freaked people out: a pasta company owned by a tax-exempt organization presented a possibly existential threat. Because the company didn’t have to pay taxes on its profits, it could charge less per box, undercutting other pasta companies and driving them out of business. (How? Well, in 1947, the top marginal corporate income tax rate was 53%. Imagine a pasta company charged 20 cents for a box of pasta and made 10 cents of profit per box. After taxes, they would have about 5 cents left. If Mueller didn’t have to pay taxes, it could charge 15 cents, a 25% discount. As long as it had similar quality, you’d probably buy the Mueller pasta!) Alternatively, it could charge the same amount, make twice the profit, and use that profit to buy competition and otherwise act as a monopolist.

Neither was, in many people’s mind, a good result. So Congress enacted the unrelated business income tax. What is the unrelated business income tax? We don’t need to go into a lot of detail, but in broad strokes: to the extent a tax-exempt organization earns income not related to its exempt purpose, it pays taxes on that income at ordinary corporate rates. The unrelated business income tax is meant to take away any unfair advantage that tax-exempt organizations would otherwise have competing with for-profit entities.

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BYU and Cryptic Standards

A couple weeks ago, the Salt Lake Tribune reported that BYU-I was declining to renew[fn1] instructors’ contracts based on nebulous and unexplained criteria.

And yes, I understand that the BYUs have odd and specific contractual provisions, one of which is that employees’ employment is contingent on getting an ecclesiastical endorsement from their bishop. But here’s the thing: the bishops of the two instructors the story interviews did provide ecclesiastical endorsements. That is, the people in question went to their bishops. They answered the questions bishops are supposed to ask. Their bishops endorsed them. They had current temple recommends. They had done everything that the BYUs say they needed to do.

But they were told they weren’t renewed because they didn’t get “ecclesiastical clearance” and therefore didn’t qualify to teach at BYU-I.

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The LDS Church Supports the Respect for Marriage Act

You may have heard that yesterday the church came out in support of the Respect for Marriage Act. For reasons I’ll describe in a minute, this support is, in my humble opinion, a big deal.

But before we get to why it’s a big deal, it’s probably worth looking and what and why the Respect for Marriage Act is.

In broad strokes, the Respect for Marriage Act is a replacement for the Defense of Marriage Act from the 1990s. (And I mean that literally—Section 3 of RfMA repeals a provision of federal law added by DOMA that expressly allows states and the federal government to decline to recognize same-sex marriages enacted in other states.)

RfMA replaces that with its opposite: under the RfMA, states must give full faith and credit to marriages performed in other states, and cannot deny marriage benefits on the basis of the “sex, race, ethnicity, or national origin” of the married persons.

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Church Finances in Canada and Australia

Over the last week or so, a number of people have pointed me to investigative journalism regarding the church’s finances in Canada and Australia and asked my opinion on them. Which is flattering but, unfortunately, right now I don’t have a ton of spare time. So rather than go through in detail, I’m going to try to contextualize a little bit of what I think is going on.

And what I think is going on is two things. First, the church thinks of itself and, to the extent it legally can, operates as a single economic entity. Over the last several decades or so, it has consolidated its finances in Salt Lake (which significantly diverges from most religious organizations I’m familiar with, including other hierarchical religions like the Catholic church).

Second, the church is obsessed with being financially opaque. It values its financial privacy to a degree that it can be harmful to the public’s perception. (I’m sure I’ve blogged about this, but I’ve also written about the history of the church’s varying levels of financial transparency/opacity for Dialogue.)

And these two things, I believe, underlie the stories coming out of Canada and Australia. And frankly, my quick blog post (written between getting kids up for school, getting them breakfast, and getting ready for work) may or may not be satisfying. It’s not meant to convict or exonerate the church. And pretty much everything I know about this comes from two articles. And I believe that the church should be more financially transparent, and that such transparency would be good for it in both the short and the long run.

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A Church Ombudsman

Several years ago, while we were waiting for the church to build a building in downtown Chicago, my ward met in a rented public school on Sundays. And honestly, it was a great location–the nursery was in the gym, with its basketball hoops and plenty of space to run (and/or toddle) around. Primary and adult classes met in classrooms, some with class pets you could watch if the lesson was less-than-completely interesting. And kids could play on the playground out back once church was over (and—shhh!—sometimes when their primary class took them out).

But, like many Chicago public schools, this school didn’t have air conditioning. Now for real, that’s not a big deal in Chicago. It doesn’t get super-hot here, and, when it does, the heat only lasts a few weeks. (Also, those few weeks of heat tend to be in the summer, when school’s not in session.) But it could be uncomfortable, especially in the gym.

And one day, the gym was air conditioned. How? What I’m told is that a member of our ward who was related to a general authority in Salt Lake mentioned the heat and, because of that personal connection, the church provided air conditioning.

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Obviously, We’re Supporting McMullin (and So Should You)

And of course, it is equally obvious that there is no good reason to believe that anything which appears on this blog could actually convince any particular Utah voter to cast their ballot the way we’d prefer. But “no good reason” is not, in fact, the same as “absolutely no reason whatsoever.” In that bizarrely hopeful spirit, By Common Consent is happy to give voice to two Utah voters who really, really, really want every single one of their fellow Utah citizens who read this to cast a vote for Evan McMullin for U.S. Senate on or by November 8. We do this 1) because the wishes of these two voters are, in our judgment, both righteous and correct, and 2) because their perspectives—one from a self-described “conservative former Republican,” the other a self-described “independent voter”–likely express well those of many BCC readers, including, just possibly, some still unregistered voters somewhere in Utah. So consider this our public service this election year. And now, to our contributors!

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$906 Million

The church recently released its 2021 Annual Report. The church’s Annual Reports detail its humanitarian and social safety-net endeavors.[fn1] These endeavors should come as no surprise: as in years past, the church has been tremendously active in providing food, clean water, education, and vaccinations, among other things. It engages in these activites on its own and it partners with other charitable organizations.

The aid it provides is unsurprising because it’s the same kinds of things the church has highlighted in previous Annual Reports.

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Oman, A Possible Theology of Same-Sex Marriage Sealings

This morning, Nate Oman posted what may be the most important and consequential piece of Mormon theology I’ve read in a long time over on his Substack. In it, he explores whether and how same-sex sealings could fit in Latter-day Saint theology.

Those of you who know Nate will be unsurprised to find that it is a thoughtful, careful, insightful, empathetic, and fundamentally faithful exploration. He takes as his cue D&C 9, which both describes a stupor of thought as evidence that what we do is not aligned with God’s will and instructs us to study questions out in our mind to figure out what is right, then present our findings to the Lord for confirmation.

Nate also doesn’t let ideas off easy. While acknowledging that the church’s treatment of the LGBTQ community does not feel just or fair, he doesn’t consider that, of itself, a compelling theological argument for same-sex sealings. At the same time, he finds our assumption of “heterosexual exaltation” equally baseless.

Instead, he advocates what I will call a theology of humility. He sketches the gaps in our understanding and application of sealings both today and through church history, how those gaps undercut our easy assumptions, and why those gaps allow for same-sex sealings.

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Faith, Reason, and CES

Last week, the Deseret News published an essay by Elder Clark Gilbert, the commissioner of CES. (Remember, CES is over the church’s secondary education system, including the BYUs and Pathways.) In it, he argues for the distinctive—and critical—role religiously-affiliated colleges and universities play in our broad network of secondary education.

And honestly, I found the essay deeply troubling.

Not, let me point out, because I disagree with Elder Gilbert’s premise. I’ve spent my entire academic career teaching at the Loyola University Chicago School of Law. We’re a Jesuit school, and our sense of Jesuit identity is central to our mission and to the way we educate our students. This mission encourages us to center justice, as well as the well-being of our students, faculty, and staff. It motivates and permeates the education we provide.

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The Role of Reconciliation

Photo by D. Clark on Unsplash

M. David Huston lives and works in the Washington DC metro area. He is a husband and father of four who has previously written for poetry, international affairs, and LDS-related publications.

Pope Francis’s visit to Canada in July was a lesson in the importance of acknowledging and accepting responsibility for past missteps as part of moving into world of a new possibilities.  As has been widely reported, Pope Francis’s visit was seeking to address the abuse of indigenous/first nation groups at the hands of Christians generally and Catholics specifically.  Though news reports earlier this year of the discovery of nearly 170 unmarked graves on the grounds of a residential school for first nation children might have been the catalyst for this specific visit, the history of Christendom’s mistreatment of indigenous peoples (in the Americas, but also in many other parts of the world including Africa) is undisputed.  Many Christian colonists and explorers terrorized and subjugated those with whom they came into contact, and often committed these terrible acts on the basis of now-discredited theological ideas. 

Now, to be clear, Pope Francis did not directly do the things for which he apologized, nor did the Catholic church over which he now presides.  He did not authorize the colonization of Canada by Catholic adherents. He did not dedicate funds to the building of the now-closed boarding schools where the graves were found. All those actions were before his time.  And yet Pope Francis still sought reconciliation?  Why?

The answer is, I believe, found in the Sermon on the Mount. 

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Bishops on Abortion

Chris Kimball is a friend of BCC and former bishop.

INTRODUCTION

Abortion is controversial. Controversy presents an opportunity and challenge for hard thinking. This is one small corner of the hard thinking, focused on the role and practice of a bishop in The Church of Jesus Christ of Latter-day Saints. This is not a global statement or manifesto, and not intended as an invitation to debate all the issues with abortion. 

As an introduction, here is the LDS Church’s position from the General Handbook of Instructions as of September 2, 2022, followed by my personal views and position.

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Religious Liberty and Short-Termism

On Wednesday, a Texas district court found that the ACA’s mandate that insurance cover PrEP violated the Religious Freedom Restoration Act. (Opinion here.)

A couple quick explanations before we go on: the Religious Freedom Restoration Act (RFRA) was a law passed by Congress to essentially overrule a Supreme Court decision. It was meant to provide religious practice with a higher level of protection than the Court was affording it. PrEP is a drug that significantly reduces the chance that a person will get HIV from sex or injection drug use.

A handful of people (and one corporation) challenged the mandate that insurance cover PrEP, claiming that their religious beliefs and practice required them to have access to insurance that didn’t cover PrEP, either for themselves or their employees. And, in the first instance, they won.

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Anti-Racism, the Bystander Effect, and BYU

Friday night, a racist BYU fan harassed a Black women’s volleyball player playing for Duke. Among other things, he threatened her and called her a racial slur that is arguably the most offensive word in the contemporary English language. And nobody—not the students surrounding the racist, not the game officials, not BYU’s athletic director, nobody—took actions to stop it.[fn1] (And it’s not like BYU officials didn’t know—Rachel Richardson, the Duke player at whom the racist invective was aimed, said that BYU’s coaching staff was told what was happening. And I’ve been to volleyball games at the Smith Fieldhouse—you can definitely hear what people shout.)

Utah’s governor expressed his “disgust” and sadness at the story, and rightly pointed out that we need to fix society so that “racist a**holes like this never feel comfortable attacking others.” And Sunday night, BYU’s women’s volleyball coach issued an apology and a promise to do better.

But the thing is, this wasn’t an isolated incident. And it’s going to happen again.

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Happy Birthday, Sister Jean!

In 2018, when the Loyola Ramblers burst into the NCAA basketball Final Four, my school burst into the national spotlight.

But it wasn’t just Loyola University Chicago: it was also the Ramblers’ chaplain, Sister Jean. She became a fixture on TV, on the internet, and even in the National Bobblehead Hall of Fame and Museum.

Today, Sister Jean celebrates her 103rd(!) birthday. Among other things, the plaza outside of the main Loyola Campus has been renamed in her honor and, on Tuesday, she’ll throw out the first pitch at the Cubs game.

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Two Things the Church Can Do Now to Improve Its Response to Child Abuse

My cobloggers have offered excellent commentary about the disturbing news about child abuse coming out of Arizona. Everything from suggestions about how we could better help abuse survivors to systemic changes we can make to reduce the incidence of abuse to discussions of confidential confession itself to how the church could have better drafted its first press release.

All of these discussions are crucial as we attempt to protect our children and limit (or better, eliminate!) abuse. But the church’s most recent press release[fn1] crystalized something in my mind, and suggested two things that the church could do in the short term, as we work toward a long-term without abuse.

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Yearning and Trane

Yesterday I watched Chasing Trane, a documentary on jazz luminary John Coltrane. (I mentioned Coltrane my introduction to Coltrane in my tribute to Dr. Ray Smith.)

The documentary is a perfectly acceptable review of a fascinating life. And what really struck me was Coltrane’s spirituality. He was a religious seeker and, like Bach, he sought to elevate his listeners through his music, to bring us closer to the transcendent and the Divine.

And his approach toward religious transcendence is nowhere as explicit as in his suite “A Love Supreme.” (Jason K. wrote about “A Love Supreme” in a Mormon Lectionary Project post seven years ago.)

“A Love Supreme” is a different approach to religion than we as Mormons usually take, in our music or in our rhetoric. Our hymns are generally composed in four-part harmony with classic voice-leading. The lyrics comfort. The harmonies and melodies are familiar and comfortable. Any dissonance ultimately resolves.

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The Clergy-Penitent Privilege–Questions and a Suggestion

At this point, I assume most of our readers have seen today’s AP story. If not, you can read it here (but be warned: it’s disturbing and disgusting and the church—rightly, imho—comes out looking terrible).

What underlies this miscarriage of justice is the clergy-penitent privilege. And what is that? It’s a legal privilege that protects confessional communications between clergy and a person who goes to the clergy for spiritual counselling.

It’s a state-level privilege, meaning it’s created and governed by state, not federal, law. And in every state it differs at least a little. And honestly, privilege broadly—and clergy-penitent privilege in particular—is outside of my area of expertise. I understand it broadly, but the contours are tough and specific.

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Christian Nationalist Is Incompatible with Mormonism

Yesterday, this piece on Christian nationalism ended up in my Twitter feed. In it, Amanda Tyler, the Executive Director of the Baptist Joint Committee for Religious Liberty explains why it is absolutely critical for Christians to step up and expressly denounce Christian nationalism.

What is Christian nationalism? The BJC describes it as explicitly promoting the idea that Christianity should explicitly infuse the U.S.’s “public policies, sacred symbols, and national identity.” Implicitly (and sometimes explicitly) it also holds that the only true Christians/Americans are white, conservative, and born in the U.S.A.

It is critical to point out here that there’s a difference between saying (as a voter or a politician), “My values influence my policy preferences” and saying “The laws of the country should codify [my version of] Christianity.” The former, Tyler points out, allows for some work across the aisles, some vision of a better society. She points to Georgia Democratic Senator Raphael Warnock, a Baptist pastor, and Oklahoma Republican Senator James Lankford, a former Baptist youth pastor, among others.

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On “Laws Related to Abortion”

Several weeks ago, in the aftermath of the Supreme Court’s Dobbs decision, the church made a change to its official statement on abortion. Reaffirming its political neutrality, the church gave explicit permission for members to “choose to participate in efforts to protect life and to preserve religious liberty.”

What does that mean? Well, the church explicitly permits abortions in cases of rape, incest, in cases where the pregnancy imposes a serious risk to the mother’s health or life, and in cases where the fetus has serious defects and will not survive.

That is, the church recognizes that there must be some kind of balance between the rights of a pregnant person and the rights of a fetus. In at least some circumstances, that balance favors the pregnant person. Which makes sense—in Mormonism, we don’t have any theological commitment to when life begins. We have, of course, scriptures that suggest it may be sometime before birth (John leapt in Elisabeth’s womb when Elisabeth heard Mary) and scriptures that suggest maybe not (Jesus spoke to Nephi the day before He was born). And from a policy perspective, stillborn children are not recorded as births or deaths on church records and no temple work can be performed for them.

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Homesteading Utah

My family and I just got back from an extended road trip. And one of our first stops on that road trip was Homestead National Historic Park in Nebraska. It was actually our second time visiting and, seriously, if you get the chance to visit, you absolutely should. (It’s only about an hour and a half from Winter Quarters.)

The Homestead Act was fascinating. Signed by Abraham Lincoln in 1862, it allowed heads of household or anyone over 21 to claim a 160-acre parcel of land, provided they were, or intended to become, a citizen.[fn1] To get the land, a homesteader had to live on the land for five years, built a home, make improvements to the land, and farm it. At the end of five years, for only the cost of a filing fee, a successful homesteader would own the land.

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A French perspective on secularism

Par François Dubois (1529 – 1584); Musée cantonal des Beaux-Arts

David Aubril is a French teacher, fond of didactics, literature, UNIX systems and free diving (with no order of preference). He follows with great interest contemporary debates on Gospel and Church matters, from across the Atlantic Ocean.

On the French version of the Church website, there is a video called “religious freedom brings balance”, with many excerpts of Elder’s Rasband last talk. As far as I can tell, there is no English version. I supposed it was especially made for French-speaking people, to make us aware of the dangers of secularism. How kind. Indeed, we have gone quite a long way with the principle of secularism in France. Maybe our experience can shed some useful light on the topic?

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On Bewaring of Pride

My freshman year at BYU, my Book of Mormon professor took a couple classes to warn us of the dangers of self-esteem. It’s been long enough that I don’t remember precisely how she got to self-esteem being a dangerous concept (except something something less than the dust of the earth). It was dumb and harmful, and I objected to it in class, though as an 18-year-old I didn’t have the language to articulate why it was stupid and harmful.[fn1]

While I’m not clear how she derived the idea that self-esteem was harmful, I wouldn’t be shocked if it found its roots in Pres. Benson’s infamous talk “Beware of Pride.”

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A Quick Note re: the Church and Gun Safety Legislation

I was reading the WBEZ website yesterday, and came across a story about Cardinal Cupich, the Archbishop of the Archdiocese of Chicago. Cardinal Cupich called on legislators to pass legislation to curb gun violence.

“The Second Amendment, unlike the second commandment, did not come down from Sinai,” Cupich told NPR. “There is an understanding that we all have in our hearts, engraved in our hearts, a natural law about the value of human life. And there is no amendment that can trump that.”

So can he do that? Can he speak out about political issues? Is he, the leader of the 3rd largest archdiocese in the United States, with more than 2 million Catholics, risking the Catholic Church’s tax exemption?

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