Some Thoughts on Church Courts

Karen Hall has an interesting post on church courts that’s worth reading. Her basic point is that church courts fail to comply with some rule of law norms. I would quibble with some of her points. For example I think she slips from the idea of rule of law to the narrower idea of an adversarial judicial process involving juries. Most of the world, however, uses the civil law system which has no juries and uses an inquisitorial rather than adversarial structure. (I do not mean inquisitorial to be pejorative. It simply means a system where the judge actively inquires into the case rather than passively judging a contest.) Still, I think that she makes some valid points about how procedures might be improved.

In some important ways, however, I think it misses some key issues. The kind of process Karen lauds serves two functions. First, it generates legitimacy for judicial outcomes. Second, it improves the quality of judicial determinations. In the context of church courts, however, I am not convinced that greater due process of the kind that Karen calls for would do either. First, for most Latter-day Saints, the legitimacy of church courts arises from the belief that the decision makers are guided by revelation and motivated by love and concern. Furthermore, because much of the structure of the church judiciary comes from canonized revelations, its legitimacy also flows from the idea that the system has a divine origin. As a practical matter, for most members I don’t think that elaborate due process is a necessary condition for the legitimacy of church courts. For example, I would not regard a church court presided over by a procedurally punctilious but selfish and uninspired bishop legitimate, regardless of its compliance with international rule of law standards.

There is still the question of whether greater due process would improve the quality of decisions. It might, but I doubt that this would be true in most cases. When they were first set up in the nineteenth century, church courts functioned mainly as a dispute resolution mechanism between members. Brother Smith would make some accusation against Brother Jones, and the bishop would resolve the issue. They weren’t pastoral in the sense of helping individuals repent. Rather they were communal mechanisms for managing interpersonal conflict in a way that emphasized Christian fellowship over what was seen as a captious litigiousness.

Today church courts are never used as dispute resolution mechanisms. Instead they are overwhelmingly used as a pastoral tool, mainly for cases involving sexual sins. I doubt that they would be more effective if they were infused with more rule of law values. Indeed, if you look at the evolution of the church court system over the last forty years or so, I think that you see a very, very gradual retreat from the use of church discipline as a pastoral tool. The procedures for adversarial proceedings were eliminated from the Handbook in the early 1970s. In the 1980s there was a major overhaul of the whole system prompted, as I understand it, by an internal church study showing that excommunicated and disfellowshiped members often fell away from activity completely. The result is a system that was designed to be less judicial and more pastoral. In the last round of edits to the Church handbook, I think that we saw a very incremental continuation of this trend, with new instructions on cases where formal church discipline was inappropriate.

At the end of the day, I am not convinced that church discipline is a very effective pastoral tool in most cases. I think that there is a place for it in cases of grievous sexual misconduct — adultery and rape for example — but in most cases I worry that even when discipline is successful it can break the spiritual self-confidence of those that go through the process. I fully understand that in some cases it is successful and a powerful tool that people use as part of the repentance process. Understanding how discipline can be used effectively in this pastoral dynamic is the central question for structuring the church judiciary, and I am frankly skeptical that international rule of law standards are going to be much help in thinking through these issues.

Today there are very very few instances of church discipline that do not flow out of ecclesiastical counseling, and there are very few instances where the proceeding is adversarial. Because the social practice of church discipline differs so widely in almost all cases from secular trials, I don’t think that more rule of law values would make much difference. I suspect that even if such procedures were implemented they would fall into disuse simply because they would be so inappropriate in most cases. (The law had a term for this: desuetude)

Which brings us to those few cases where the proceeding is adversarial. These will often be cases of apostasy. Here I think that Karen makes some fair points about how the procedures in church courts could be improved. I do want to resist the idea that the standards for apostasy in the Handbook — acting in opposition to the Church and its leaders, etc. — is inherently vague. I don’t think that it is more open ended than the sort of rules that show up in the secular legal system pretty frequently. For example, section 90 of the Restatement (Second) of Contracts provides:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Millions of dollars regularly turn on the application of this rule, which includes such nebulous elements as “reasonable” and “injustice.”

The real problem with church discipline for apostasy, it seems to me, is less the procedures than that our pastoral model of Church discipline is simply ill-suited in most cases for preserving “purity of church doctrine.” Remember that in the nineteenth century church courts were often conducted in public. Brother A would accuse Brother B of teaching false doctrine, and the case would land before a bishop or high council, which would resolve it and announce its decision. Church discipline, however, is no longer a public and communal ritual. Suppose that Brother Jones is teaching false doctrine and is then excommunicated for apostasy. Because the pastoral model of church discipline requires silence from the church about the conduct of the court it’s simply a bad mechanism for correcting doctrinal errors. The errors can never be articulated and publicly corrected through church discipline. It seems much better to just have church leaders articulate the problems with some teaching publicly without discipline.

The other problem is that the pastoral model places a premium on flexibility and treating each case as sui generis. The problem, however, is that this model cannot really generate consistent norms for public discussion across the Church. The solution to this problem, it seems to me, is not to create lots of procedure or more rule of law values in church discipline. It’s simply to articulate broader norms of discussion at the general level, and then rely on informal social pressure to police the boundaries. In the end, I think it may make more sense to limit discipline for apostasy to cases like the misuse of priesthood authority or members that proselytize for other religions, where discipline is not being used to police doctrinal boundaries.

21 comments for “Some Thoughts on Church Courts

  1. Al miller
    June 21, 2014 at 11:29 pm

    Wrong start. It isn’t a court. So all legal norms are irrelevant.

    The only decision maker in a disciplinary council is the presiding officer. He usually doesn’t convene a disciplinary council without an expected outcome. The council is convened to make sure that he doesn’t sweep problems under the rug and to to make sure that he isn’t unfair to the person to be disciplined.

  2. June 21, 2014 at 11:39 pm

    Al, as Nate points out, historically, church courts were, in fact, ecclesiastical courts that resolved disputes between members. Their function has changed significantly, but arguing that legal norms are irrelevant misses a lot of history and at least a vestigial part of disciplinary procedures (which do, in fact, have some legal norms, including the ability to appeal).

  3. Karen H.
    June 22, 2014 at 12:09 am

    Nate, thanks for the really thoughtful response. I have a few comments/responses. I do understand that a church court system does not fall neatly under a secular model, and shouldn’t be held to producing a mirror system. However, I wasn’t advocating for that in my post. If you’ll note, my reference to rule of law norms is descriptive rather than prescriptive. I think that looking at one’s own dispute resolution system is tricky, and the availability of larger norms to refer to are helpful in identifying gaps. Actually designing and producing solutions is much trickier business, and I wouldn’t advocate superimposing a secular system on a church system, anymore than I would superimpose an American legal model on a poor and developing country. But back to the general point, the four norms that I pulled out from the larger rule of law conversation can be used as barometers of fairness in identifying if there is a problem. I think that there is a problem in the church court system for the reasons I outlined in my post. I don’t think these structural issues always result in unfair or bad results, but I think they certainly enable the possibility of them, and I think the recent apostasy case points out an example of that.

    I think it’s also important to point out that I very purposefully stayed away from dealing with the issue of sexual sin, and even more purposefully from situations of abuse. I remain skeptical (as I think you do to a certain extent if I’m reading you correctly) of the usefulness of a church court model at all in being a beneficial pastoral tool. If someone feels that it is a therapeutic way to promote their own behavior change, more power to them. I don’t know if I’m convinced. Like I said, I’ve never witnessed one, I’ve just heard (very mixed) stories by those who have. However, I think that in cases of predatory behavior or actual danger to the community, that some last resort mechanism should be available. However, I limited my discussion to the situation where the court is adversarial to a certain degree because it results in a difference of opinion between the bishop and a congregant. When this happens, the proceeding takes on a punitive and legalistic flavor, and I think that the pages and pages of procedural instructions int he CHIv1 back up my point here. At this point, I think it is very fair to evaluate whether or not those outlined procedures create a fair atmosphere for the congregant. I don’t think they do, and the very fact that they are secret and likely unknown to at least half of the population of potential accused is convincing evidence of that.

    As to your point that I was veering towards an adversarial rather than an inquisatorial system analysis, I take your point, but don’t think that is entirely accurate. The principles of rule of law are applicable to both common and civil law systems, as many more people in the world live under a civil law system than under a common law system. Basic notions of fairness are not absent in civil law, the proceedings are just designed in a different way to (hopefully) get at a just result. I did refer to the principle of “jury of your peers” in discussing the fourth point. It was an easily accessible reference that people understand. I do think that most civil law practitioners would argue, however, that an entire bench made up of only male investigative judges would be problematic. But getting back to the specific instance at hand, the church court system, when there are 15 people gathered to debate and determine guilt or innocence, and recommend possibly punitive action, that looks a whole lot like a jury rather than a civil law judge. And to move away from legal arguments to human ones for a minute, I don’t know if you can understand how terrifying it could be for some (or most) women to stand accused in front of a group of men and have to defend themselves. The thought of that happening makes me incredibly sad and angry enough to write a blog post like I did.

    A final, and somewhat nitpicky response, comparing the restatement of contracts (a quintessentially common law tool) to a broadly written definition of apostasy being relied upon in essentially a civil law way (reading the face of the code rather than relying on precedent) isn’t super convincing. My point that precedent brings consistency to common law; and more precise and complete definitions brings consistency to civil law would infer that a more precise definition is still warranted. However, that really isn’t the point, is it? The fact that the definition is secret from those who are held to it is actually the point.

    Finally, and I’m happy to say this(!) I agree with your last paragraph. Like I said at the top of my (overly long) comment: my post wasn’t prescriptive. I just think that we all need to take a deep breath and recognize that there is a big problem here. I hope that the method I used–of referring to international norms–helped to frame that problem. Many more voices will be needed to try and craft fair and workable solutions. Those solutions may involve tightening up or broadening the legal models that are already in the handbook. But maybe jettisoning church discipline for some issues in favor of bringing them out into the sunshine is a better way. You are certainly someone who should be listened to in creating a better way forward if the decision is made to improve the status quo.

    And with that, I’ll sign out. Again, thanks for the post.

  4. June 22, 2014 at 12:25 am

    I have an unabashed love for Karen H.

  5. BHodges
    June 22, 2014 at 12:33 am

    More exchanges like this, please.

  6. Steve Smith
    June 22, 2014 at 1:11 am

    I very informative, well thought-out post. I also enjoyed Karen’s. Thanks for sharing your thoughts.

  7. June 22, 2014 at 2:07 am

    General terms or rules in common law systems take on more specific meanings and applications because of reported cases and appellate review. Trial judges don’t have to grapple with a wide range of meaning for general terms because there are dozens of cases that can be relied on as templates for applying or not applying those terms to specific factual scenarios. But LDS courts provide no such guidance to bishops, who instead more or less create their own working definitions for general terms — which may vary considerably, especially in apostasy cases. This sort of “priesthood roulette” is one of the more unsettling features of LDS courts, and pretty much everyone is aware of it. It has the potential to produce arbitrary rulings and mistaken rulings rather than consistent and correct ones.

  8. Nate
    June 22, 2014 at 6:37 am

    Karen & Dave: Civil law codes contain similarly broad terms and don’t have any system of stare decsis to liquidate meaning. The fact that one has a rather bfoadnstandard rather than a tight rule does not violate rule of law norms. The point about the fact that the handbook isn’t widely available is a better criticism. The real question, however, is whether a pastoral disciplinary model based on confidentiality And flexibility can be used effectively to deal with problems of apostasy. I think in most cases the answer is no. This isn’t, however, because of the unfairness of the procedure. I concede that it could be made fairer, but I don’t think that’s really what create the problem.

  9. Nate
    June 22, 2014 at 7:27 am

    Karen & Dave: Let me take another stab at explaining the point I am trying to make with the reference to section 90. I think that with a somewhat open ended standard and an appellate process you could get pretty high levels of consistency without formal precedent. You have this in the civil law system. You have all of the tools to do this now in the church court system. You could even supplement the current CHI definition with a few talks, articles, and training sessions. Think of this as the Mormon analogue to the civilian treatise. In other words everything you need for consistency is already there in church courts. The reason you don’t have consistency is because in the pastoral model consistency isn’t seen as being valuable. Indeed, greater formal consistency would probably undermine pastoral goals. This, not some failure in the CHI definition of apostasy, is why church discipline is not a very good way of policing the limits of acceptable doctrinal and ecclesiastical discussions.

  10. June 22, 2014 at 9:09 am

    Nate-it would be more interesting, at least for me, if you would include scripture in your reasoning. For example, Alma 26 is a good place to start when discussing church courts. The church is based on scripture and I think its time for the major blog writers to discover the scriptures and use them in their post.

    As church members, we have secular and sacred education to draw on. Why not use them both when approaching a subject like church courts?

    I can’t speak from experience about the legal system or church courts, but I can speak from experience about the doctrine of Christ. I know from experience that applying teachings from the Book of Mormon can result in significant manifestations of the Spirit.

    I’ll include the following verses as evidence.

    9 Believe in God; believe that he is, and that he created all things, both in heaven and in earth; believe that he has all wisdom, and all power, both in heaven and in earth; believe that man doth not comprehend all the things which the Lord can comprehend.

    10 And again, believe that ye must repent of your sins and forsake them, and humble yourselves before God; and ask in sincerity of heart that he would forgive you; and now, if you believe all these things see that ye do them.

    (Book of Mormon | Mosiah 4:9 – 10)

  11. June 22, 2014 at 10:29 am

    I believe it is oversimplification to state that civil law countries have no notion of stare decisis. The formal doctrine is not enshrined, it is true, but precedent still carries weight. The net results are quite similar to common law jurisdictions.

  12. June 22, 2014 at 10:32 am

    Nate, I agree that consistency isn’t seen as being valuable. But we need to make two distinctions. The first is the difference between outcome consistency and process consistency. Following a consistent process that is transparent to the participants can lead to varying just outcomes. Second, the value in an inconsistent process accrues largely to the church, while the harm in inconsistency accrues almost solely to the accused. That isn’t fair. It also creates a tremendous amount of fear in bystanders. Which is also unfair.

  13. Steve
    June 22, 2014 at 11:27 am

    *”In the end, I think it may make more sense to limit discipline for apostasy to cases like the misuse of priesthood authority or members that proselytize for other religions, where discipline is not being used to police doctrinal boundaries.”

    I agree with a lot of the post, and I would agree with this final sentence too if discipline for apostasy was primarily about policing doctrinal boundaries. But I think the policing more often than not occurs before the discipline, and discipline comes when the individual revolts against the counsel and direction (policing) of their leaders.

    My understanding is that discipline for apostasy is primarily about protecting the flock, protecting them from the wolves among them, so I don’t think it would make much sense to “limit discipline for apostasy” to the cases you mention if other cases are indeed endangering the spiritual health of others.

  14. wondering
    June 22, 2014 at 12:33 pm

    Thanks for writing this.

    I have been thinking something similar for a while. It seems entirely inappropriate to use the pastoral model for someone like Kate Kelly. For something like sexual sin it makes complete sense for discipline to be local, private, and about helping the sinner repent. But Kelly’s case is not local, not private, and I think it’s mostly about protecting the church not about helping her (I mean, she doesn’t even live in Virginia any more.)

  15. Nate
    June 22, 2014 at 2:25 pm

    Karen: I actually think inconsistent outcomes in apostasy cases doesn’t particularly benefit the church. You get no clear construction of limits. It may accrue to individuals in the form of pastoral care, which is why the system embraces inconsistency. (Whether it in fact is pastorally effective is a separate question.) What the church loses in the pastoral model is the use of church discipline for effective norm creation. You lose what Posner calls the public good aspect of adjudication. We’d lose this even if there was lots of process consistency.

  16. Nate
    June 22, 2014 at 2:32 pm

    Steve: I agree that precedent plays some role in civil law countries. You always need some mechanism for liquidating the meaning of standards. I suspect that this could be done with internal FP precedents on appeal and some public sermons and training if consistency was the goal. I believe that the FP did this for example when adjudicating land titles in the 19th century. My point is that in a pastoral model consistency isn’t really even seen as a major goal and in some cases will be viewed as perverse.

  17. Nate
    June 22, 2014 at 2:44 pm

    Oops. I think I misread Karen’s last comment. You may be right about process consistency. I would just want to be careful. Lawyers like procedure. We find it comforting because we take it as a mark of fairness. For a lot of normal people, however, procedure is alienating. It makes them feel dumb and creates suspicion both because it feels adversarial and because they worry that substance will be lost in procedure.

  18. June 22, 2014 at 3:43 pm

    Wondering makes an excellent point. If we assume for argument that a DC makes sense in a pastoral care model, there is still the question in this particular case of what conceivable pastoral value is there in an in absentia proceeding by people who aren’t her leaders anymore and will never see her again. It really ought to be forwarded to her new leader. Postpone the DC indefinitely, continue the informal probation at the discretion of the new bishop, let the new bishop get to know her and provide actual pastoral care to her. Then if the new bishop, as part of that pastoral care and knowledge of her built up over time, decides a DC is warranted, it would be more appropriate at that time. He could also decide to drop the whole thing. But either decision would be in the context of actual pastoral care.

    That said, the starting assumption that apostasy DCs can be thought of as pastoral is a very shaky.

  19. Russ Frandsen
    June 23, 2014 at 12:04 am

    i have appreciated your concise thinking and writing for some time. i think you belong on the Duke Law School faculty, or perhaps as a stepping stone to Duke, an appointment to the Harvard or Yale law schools faculty.

    keep it up.

    Russ Frandsen

  20. June 23, 2014 at 9:43 am

    #10 Correction

    Nate-it would be more interesting, at least for me, if you would include scripture in your reasoning. For example, Alma 26 is a good place to start when discussing church courts. The church is based on scripture and I think its time for the major blog writers to discover the scriptures and use them in their post.

    Not Alma 26, it should read Mosiah 26.

    Of course, it doesn’t really matter. My comment to Nate was ignored because it included scripture.

  21. Nate
    June 23, 2014 at 11:13 am

    Jared: Scriptures?!? What are these things of which you speak? How might I discover them?

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