THE WEB OF MEMBERSHIP: THE CONSONANCE AND CONFLICT OF BEING AMERICAN
AND LATTER-DAY SAINT
Kif Augustine-Adams [FNd1]
Copyright © 1998-99 Hamline University; Kif Augustine-Adams
Reprinted from the Journal of Law and Religion 13 (Fall 1998): 567-602. Internal pagination is noted by the numbers in bold print.
When asked who she is, an individual may identify herself as Hispanic, a born-again Christian, Canadian, an accountant, a sister, a daughter, a friend. [FN1] The various communities to which she belongs create a web of membership, strands of her individual identity. Her membership in a public legal community, her citizenship, stands out as a dominant strand, affecting her ability to maintain and enjoy other strands of membership and identity, be they religious, professional, familial or otherwise.
Stewart Macaulay's observation regarding public and private governments applies similarly to an individual's membership in her communities; rather than sharp distinctions there is "interpenetration, overlapping jurisdictions and opportunities for both harmony and conflict. . . ." [FN2] An individual's membership in various communities creates a web of reciprocal relationships, opportunities for harmony and conflict. The individual may influence the institutions of her various communities which in turn help define who she is. In some ways, this is a question of legal pluralism, the simultaneous operation of multiple *568 legal systems. [FN3] As legal pluralism, each community and its institutions provide for and adjudicate membership differently, consistent with the values the community most prefers. For an individual subject to the varying jurisdiction and values of multiple memberships, however, the issue is more existential than institutional: how do I live in the communities to which I belong? What community values do I find most persuasive and why? Can I, or how do I, maintain the multiple strands of my identity, my community memberships, where conflicts arise? She confronts the paradox of self and community, individual and institution. Her web of membership may serve as a safety net and a restraint, a source of personal sustenance and potential loss.
Taking a few strands from the complex web of an individual's potential membership, this paper examines institutional and individual interaction between two communities, the United States of America and the Church of Jesus Christ of Latter-day Saints, commonly called the Mormons. [FN4] The interweaving strands of these two communities has, for particular individuals, significantly affected the color and texture of the web of membership, what it means to be both American and Latter-day Saint, or if that dual membership is even possible. [FN5] Part One illustrates the separation of the two strands through early LDS church history and the specific example of polygamy, [FN6] times when the conflict between membership in the Latter-day Saint community and the American community involved death and renunciation. Part Two examines the evolving relationship between the arbiters of community membership and participation, LDS church courts and American civil courts, and the *569 separation and interweaving of their roles as part of the web of membership. Part Three then turns to questions of individual identity and dispute resolution, how particular strands of American and Latter-day Saint membership may influence a person's interaction with LDS church courts and broader perceptions of the Latter-day Saint community. Individual accounts of participation in and administration of church discipline highlight the paradox, how individuals with dual American and Latter-day Saint membership experience these strands of identity as both safety and restraint.
This paper begins with an examination of extreme conflict between the Latter-day Saints and secular legal authority. While the discussion focuses on institutional interaction and responses, the impact is individual. The violence associated with early LDS church history and the question of polygamy essentially posed a choice between membership in the Latter-day Saint community and full participation in the American community. In response to mob violence, the church separated itself physically from the American community as individuals walked across the plains. [FN7] Of course, some individuals made the opposite choice, to remain physically in the American community, largely forsaking their identity as Latter-day Saints. [FN8] The web of membership did not hold as individuals had to chose among the strands of their identity. In contrast, when the church renounced polygamy after failed legal battles to preserve it, individuals regained the ability to fully participate in the American legal community, but their individual identity as Latter-day Saints changed. The formal legal community dominated the web of membership.
1. Early Church History
In 1830, The Church of Jesus Christ of Latter-day Saints was "regularly organized and established agreeable to the laws of our country, by the will and commandment of God. . . ." [FN9] Being organized *570 consistent with and according to the laws of the United States, and the respect for civil government that it implies, did not elicit physical protection or reciprocal respect for Latter-day Saints in the following years, however. Violent mobs in Missouri, Ohio, and Illinois forced the Latter-day Saints to leave the communities that they had established despite LDS leaders' repeated appeals to civil authorities for protection. [FN10] In a display of official government discrimination, Missouri Governor Lilburn Boggs issued an extermination order against the Latter-day Saints: Mormons had to leave Missouri or be killed. [FN11] Boggs apparently believed that Latter-day Saints had showed themselves in "the attitude of an open and avowed defiance of the laws, and of having made war upon the people of this state." [FN12] Whether specifically influenced by the extermination order or not, a short time later, members of the state militia killed seventeen Latter-day Saints at Haun's Mill. [FN13] Further, as a consequence of the extermination order, the Latter-day Saints gave up their leaders for trial, surrendered their arms, signed over their properties as indemnification for damages and payment for debts, and left the state. [FN14] The message was clear: one could not be both Missourian and Latter-day Saint.
After Governor Boggs officially expelled the Mormons from Missouri and violent mobs later drove them out of Nauvoo, Illinois, the Latter-day Saints began their westward trek. They did not go to Oregon or California, where many pioneers headed. [FN15] Rather, they stopped in Mexican territory, settling the desolate and undesirable Salt Lake Valley, a place that Brigham Young, their leader, had seen in a vision. [FN16] The westward trek created a distinct physical separation between the Latter-day Saint community and the rest of America, a separation that explicitly acknowledged the conflicts between membership in both communities. Essentially, American and Latter-day Saint identity could not exist in the same web.
In their isolated settlement of the Salt Lake Valley, the Latter-day Saints created a theocracy, almost completely integrating civil and *571 ecclesiastical society. Ecclesiastical organizations operated in political and legal roles. The Salt Lake Stake [FN17] High Council acted as a legislature in drafting a legal code to govern the valley:
We the High Council of the Great Salt Lake City, in the absence of any organized jurisdiction of any Territory for the peace, welfare and good order of our community, proceed to enact the following laws, for the government and regulation of the inhabitants of this city and valley for the time being subject to the approval of the people. [FN18]
The civil code provided legal rules for a wide variety of situations including vagrancy, disturbing the peace, sexual misconduct, arson, theft, and drunkenness. [FN19] Moreover, as set forth in detail below, LDS church courts fulfilled the functions of civil courts, adjudicating civil matters as well as ecclesiastical issues. In part, this theocracy was a pragmatic response to the vacuum of any other authority. The ecclesiastical organization that did exist simply filled the vacuum.
In other ways, however, the creation of a theocracy was emblematic of Latter- day Saints' different social vision, a vision of a millenarial world where "[t] he kingdoms of this word shall become the kingdoms of our God and his Christ." [FN20] As Joseph Smith saw it, righteousness would prevail where church and state combined:
As the 'World is governed too much' and as there is not a nation or dynasty, now occupying the earth, which acknowledges Almighty God as their law giver . . . I go emphatically, virtuously, and humanely, for a Theodemocracy, where God and the people hold the power to conduct the affairs of men in righteousness. [FN21] This social vision contrasted sharply with a broader American vision current in the mid-1800s:
. . . the Mormon communities seemed un-American and anti-republican. Government in Nauvoo [Illinois] was based on a covenant with God which contrasted with the social contract theory of government of mainstream America. Mormon society *572 was collectivist rather than individualist. Integral to Mormon practices was a belief in divine authority transmitted on earth through an authoritarian, hierarchical, patriarchal priesthood order. Mormon theocracy's positing of religions and political authority in the same person was in opposition to the cherished principles of separation of church and state. In very fundamental ways, Mormon ideology was seen as antithetical and subversive to republican ideology. [FN22] The particular Latter-day Saint vision of combined church and state in a millenarial world offered a theological impetus for the creation of a Latter-day Saint theocracy. The expulsion and physical removal of the Latter-day Saint community from American territory offered a practical opportunity to implement that vision. Moreover, given their experiences with mob violence and official discrimination, Latter- day Saints had good reason for distrusting the secular legal system. Latter- day Saints essentially withdrew from the web of membership which the American legalsystem dominated, to create their own.
Of course, today the Latter-day Saints do not live in a theocracy and Utah is a part of the United States. The process by which that integration occurred is a long and complex story, told at length and in detail elsewhere. [FN23] In part, it is the story of the early LDS vision of an immediate Kingdom of God fading into an "indeterminate future." [FN24] In part, it is the story of membership in the American web of experience pulling economically and socially against the Latter-day Saints' isolation. Most dramatically, it is again the story of conflict between values in the web of membership, but with a very different result than when the Latter-day Saints withdrew from that web and trekked west. The battle over polygamy is a striking example of the direct impact civil government can have on religious communities and individual identity in the web of membership. [FN25]
*573 2. Renunciation of Polygamy
Prior to 1890, polygamy was a fundamental tenet of the LDS faith, a divinely- inspired practice that refined the human spirit through the sacrifices it required. Latter-day Saint leaders taught that in order to attain the highest degree of the celestial kingdom, a state of postmortal glory where husbands and wives became gods and created and populated worlds, an individual had to enter into celestial marriage. Polygamy was celestial marriage. When "published to the world" in 1853, the prophet Joseph Smith's 1843 revelation outlining the principle was titled "Celestial Marriage: A Revelation on the Patriarchal Order of Matrimony, or Plurality of Wives." [FN26] William Clayton, an early member of the church, wrote that Joseph Smith taught him and others directly that "plural and celestial marriage is the most holy and important doctrine . . . and that without obedience to that principle no man can ever attain to the fulness of exaltation in celestial glory." [FN27]
In 1890, after extended legal battles [FN28] and serious disruption of Latter-day Saint community and family life as church members and leaders alike spent years in jail or in hiding, Wilford Woodruff, the president of the church, announced an end to polygamy:
Inasmuch as laws have been enacted by Congress forbidding plural marriages, which laws have been pronounced constitutional by the court of last resort, I hereby declare my intention to submit to those law, and to use my influence with the members of the Church over which I preside to have them do likewise. [FN29]
The question of the church's compliance with Supreme Court decisions and related laws sanctioning polygamy profoundly affected the church's existence and the ability of individual Latter-day Saints to *574 participate in the American legal community. The 1862 Morrill Act revoked the church's legal incorporation and provided for escheatement to the United States of real estate acquired in excess of $50,000. [FN30] The 1882 Edmunds Act disenfranchised practicing polygamists, excluded them from public office, and allowed exclusion of believers as well as practicers from certain jury duty. [FN31] The 1887 Edmunds-Tucker Act, inter alia, provided for enforcement of the Morrill Act, requiring the attorney general "to wind up the affairs of said corporation," and to transfer church property to benefit the schools of Utah Territory. [FN32] Woodruff had a stark vision of the consequences the church would face if it did not renounce polygamy:
The question is this: Which is the wisest course for the Latter-day Saints to pursue--to continue to attempt to practice plural marriage, with the laws of the nation against it and the opposition of sixty millions of people, and at the cost of the confiscation and loss of all the Temples, and the stopping of all the ordinances therein, both for the living and the dead, and the imprisonment of the First Presidency and Twelve and the heads of families in the Church, and the confiscation of personal property of all the people . . . Confusion would reign throughout Israel, and many men would be made prisoners. This trouble would have come upon the whole Church, and we should have been compelled to stop the practice. [FN33] *575 Once again, within the web of membership, the church as an institution and its individual members faced a choice. The church officially relinquished the practice of polygamy, and it died out, but not without considerable turmoil. [FN34]
Like the violent attacks on their persons and property that prompted the Latter-day Saints' westward trek, the Morrill, Edmunds, and Edmunds-Tucker Acts challenged the Latter-day Saint community's basic right to exist and the ability of individual Latter-day Saints to participate in the American polity. But, the challenge to polygamy required very different solutions. The Latter- day Saints could not physically isolate themselves from American society as they had nearly fifty years before; no more westward land existed to which the entire Latter-day Saint community could flee, although small groups of Latter- day Saints emigrated from Utah to Mexico and Canada to escape imposition of U.S. laws. [FN35] Furthermore, this time, the U.S. Congress and Supreme Court, not just the governors or mobs of a few states, demanded a change in LDS practice. When being both American and Latter-day Saint once again conflicted dramatically, resolution of the conflict resulted in a fundamentally different conception of what it meant to be LDS. The Latter-day Saint church relinquished a basic practice in order to preserve the rest of its faith.
This abandonment of polygamy redefined what it meant to be Latter-day Saint, both practically and theologically. In contrast to earlier teachings, within Mormonism, celestial marriage is now defined as the eternal marriage of monogamous partners: "Celestial marriage--that is, marriage for time and eternity--and polygamous or plural marriage are not synonymous terms. Monogamous marriages for time and eternity, solemnized in our temples in accordance with the word of the Lord and the laws of the Church, are Celestial marriages." [FN36] Today, one cannot advocate the current practice of polygamy and remain a *576 Latter-day Saint. [FN37]
Nonetheless, even while recognizing that secular law forced a choice, the Latter-day Saint community itself did not view the decision to abandon the practice of polygamy as an accommodation of public government, as acquiescence to its authority. Rather, the mandate for the change came from God. Wilford Woodruff made it clear that he spoke for God in abandoning polygamy:
I saw exactly what would come to pass if there was not something done. . . . But I want to say this: I should have let all the temples go out of our hands; I should have gone to prison myself, and let every other man go there, had not the God of heaven commanded me to do what I did do; and when the hour came that I was commanded to do that, it was all clear to me. [FN38]
Whatever external forces precipitated the crisis that occasioned the renunciation of polygamy, the Latter-day Saint community, and its leaders particularly, characterized the change in practice as the will of God. Even as secular forces challenged its identity and place in the web of membership, the Latter-day Saint church responded in terms that emphasized its most important value and belief, obedience to the will of God.
The early history of the LDS church and polygamy specifically demonstrate the conflict an individual may encounter as a member of multiple communities, as different strands of the web of membership pull in different directions. Mob violence and differing visions of society occasioned significant tension between those strands in early LDS church history. The tension ultimately snapped the web of membership as Latter-day Saints withdrew from civil society and migrated west. Later, the tensions were resolved differently. Mormonism prescribed polygamy; the American legal system forbade it. While the American legal system ultimately prevailed, profoundly affecting membership in and the identity of the Latter-day Saint *577 community, the LDS church understood that change as compliance with the will of God. At the same time, the Latter- day Saints' legal battles created a body of law that continues, more than 100 years later, to influence the adjudication of religious freedom issues for other Americans. [FN39] The tensions of the web of membership impacted the individual identity of Latter-day Saints, and ultimately other Americans as well.
Just as American civil courts adjudicate the rights and duties of membership in the American legal community, and have placed polygamy outside the boundaries of that membership, LDS church courts adjudicate membership in the Latter-day Saint community. The changing role LDS church courts have played in relation to civil courts, and contrasts between the two, elucidate both the separation and interpenetration of the web of membership. That separation and interpenetration reveals both consonance and conflict, ambivalence and reconciliation.
1. Establishment of Ecclesiastical Courts
On 9 February 1831, less than a year after the formal organization of the church, Joseph Smith, the church's first modern prophet, received a revelation outlining the basic principles and methods of church justice. In particular, church justice focused on membership in the church: "[H]e that sinneth and repenteth not, shall be cast out of the church . . . ." [FN40]
What constituted sin was also specified:
Thou shalt not steal: and he that stealeth and will not repent shall be cast out.
Thou shalt not lie; he that lieth and will not repent shall be cast *578 out.
Thou shalt love thy wife with all thy heart, and shalt cleave unto her and none else. And he that looketh upon a woman to lust after her shall deny the faith, and shall not have the Spirit; and if he repents not he shall be cast out.
Thou shall not commit adultery; and he that commiteth adultery, and repenteth not, shall be cast out.
But he that has committed adultery and repents with all his heart, and forsaketh it, and doeth it no more, thou shalt forgive;
But if he doeth it again, he shall not be forgiven, but shall be cast out.
Thou shalt not speak evil of thy neighbor, nor do him any harm. [FN41]
The potential sanction for violating church commandments without repentance was expulsion from the church, not the imposition of quasi-criminal penalties or civil liability.
If anyone had committed sin, he or she was to be "tried before two elders of the church, or more, and every word [was to] be established against him or her by two witnesses of the church, and not of the enemy . . . that they may be dealt with according to the law of God . . . and thus ye shall do in all cases which shall come before you." [FN42] The words "tried" and "witnesses" evoke images of a formal court adjudication. Indeed, the bishop was considered a "judge in Israel" who was to "sit in judgment upon transgressors upon testimony as it shall be laid before him according to the law, by the assistance of his counselors, whom he has chosen . . . ." [FN43]
If an adjudication were particularly difficult or important or "inasmuch as there is not satisfaction upon the decision of the bishop or judges," a local high council consisting of twelve high priests received jurisdiction; appeal could also be taken to the First Presidency of the church. [FN44] Like the bishop's courts, these high councils also had "power to decide upon testimony according to the laws of the church." [FN45]
Unlike the smaller bishop's court, which usually involved only the bishop, his two counselors, the accused, the accuser, and any witnesses, *579 the high council followed more formal procedures. The twelve members of the high council first assessed the difficulty of the case. If the case was not difficult, then "two only of the councilors shall speak upon it," meaning that two of the councilors, chosen by lot, were to speak for the accused and two councilors, also chosen by lot, were to speak against the accused. [FN46] If the case was more difficult, four councilors were assigned to each side. [FN47] The most difficult cases required the council to divide itself in half with six councilors speaking for each side, "but in no case [were] more than six [to] be appointed to speak." [FN48]
The councilors speaking for the accused had a limited advocacy role, the responsibility to "stand up on behalf of the accused, and prevent insult and injustice." [FN49] Both the accuser and the accused had "a privilege of speaking for themselves before the council, after the evidences are heard and the councilors who are appointed to speak on the case have finished their remarks." [FN50] The president of the council then made his decision and sought the support of the twelve councilors. [FN51] If a member of the council "discover[ed] an error" in the president's decision, a "careful rehearing" was held and if "additional light" was shown, the decision was altered accordingly. [FN52] Although church guidelines existed on some issues, if a bishop or president of a council had difficulty interpreting doctrine, he was to "inquire and obtain the mind of the Lord by revelation." [FN53] Once a decision had been made, "a copy of [the] proceedings, with a full statement of the testimony accompanying [the] decision" was sent to the First Presidency of the church. [FN54]
Although the sins mentioned above were ecclesiastical delicts, many of them were also criminal offenses against the public government. Ecclesiastical delicts were to be dealt with "according to the law of God," and the individual "cast out of the church." [FN55] But, if a member killed, robbed, stole, or lied, he or she was also to be "delivered up unto the law of the land." [FN56]
*580 2. Conflation of Secular and Religious Courts
Despite the clear distinction in Joseph Smith's revelation between the civil law and God's law, the courts of God became the courts of the land. From the Latter-day Saints' arrival in the Salt Lake Valley in 1847 until 1849, the ecclesiastical government was the only formal government in Utah. The LDS ecclesiastical organization and its courts governed every aspect of life, including disputes that might otherwise have been taken to a civil or criminal court if one had been available. Bishop's courts and high council courts in Utah heard, inter alia, cases regarding post-divorce property disputes, stealing of seed corn and beans, theft of a cow, sending counterfeit gold to California, criminal assault threatening murder, fraud and swindling, and breaches of contract for failure to supply beef and failure to deliver an ox. [FN57] LDS church courts adjudicated not only membership in the church but also the rights and duties of membership in the public legal community, and imposed sanctions and remedies typically reserved to the civil government. [FN58]
In early 1849, the State of Deseret, a secular government, was established. This secular government, however, largely reflected church organization: Brigham Young, president of the church, was elected governor; Heber C. Kimball, his first counselor in the First Presidency, was elected chief justice of the supreme court. [FN59] Other justices consisted of prominent church members. [FN60] On the local level, the bishops of the Salt Lake Valley congregations were elected as civil magistrates. [FN61]
Although these courts reflected the dominant Latter-day Saint organization, they offered justice not only to members of the church, but also to all those who would submit to their jurisdiction, and even to *581 some who would not. One U.S. Army engineer surveying the Great Basin wrote:
[T]heir courts were constantly appealed to by companies of passing emigrants, who, having fallen out by the way, could not agree upon the division of their property. The decisions were remarkable for fairness and impartiality, and if not submitted to, were sternly enforced by the whole power of the community. Appeals for protection from oppression, by those passing through their midst, were not made in vain; and I know of at least one instance in which the marshal of the state was dispatched, with an adequate force, nearly two hundred miles into the western desert, in pursuit of some miscreants who had stole off with nearly the whole outfit of a party of emigrants. He pursued and brought them back to the city, and the plundered property was restored to its rightful owners. [FN62]
ln 1850, Congress organized Utah as a territory of the United States. Congress appointed Brigham Young as governor, but a number of non-Latter-day Saints to the court system. [FN63] Even when individuals had the option of going to a civil court rather than an ecclesiastical court, records indicate that the types of cases bishops and high council courts heard after 1850 did not differ significantly from those that they heard when LDS church courts were the only option. The stream of cases involving personal property disputes, especially those regarding animals, breaches of contract, and domestic issues continued, although the expansion of secular authority meant that LDS church courts usually limited sanctions to ecclesiastical penalties rather than criminal ones. [FN64] In civil matters, Latter-day Saint church courts continued to occasionally impose damages, enforcing payment of the award through expulsion from or limitations on church membership. [FN65]
Even as secular adjudicatory authority expanded, church leaders, and Brigham Young in particular, expressed a strong preference that Latter-day Saints turn to ecclesiastical courts for redress of grievances rather than to civil courts:
There is not a righteous person, in this community, who will have difficulties that cannot be settled by arbitrators, the Bishop's *582 Court, the High council . . . far better and more satisfactorily than to contend with each other in law courts, which directly tends to destroy the best interests of the community, and to lead scores of men away from their duties, as good and industrious citizens . . . . It is a cage of unclean birds, a den and kitchen of the devil, prepared for hell, and I am going to warn you of it . . . I would like to see a strictly honest community, if we can have one, and then there would be no differences of opinion brought before a Gentile court--never never! Every difficulty would be settled amicably, without ever calling upon a court . . . . I say, may God Almighty curse [some lawyers] from this time henceforth . . . for they are a stink in the nostrils of every Latter-day Saint in this territory. . . . I know that many are obliged to go [to Court], but those who creep around to see what is going on, let me tell you, the devil has possession of them. I wish such persons to go to California if they wish to. I counsel you to keep away from courts . . . . [FN66] An appeal to secular justice was a sin. Under an ecclesiastical exclusive jurisdiction rule that required Latter-day Saints to sue other Latter-day Saints only in church courts, recourse to secular justice was grounds for exclusion from the religious community itself. [FN67] As late as 1880, John Taylor, then president of the church, stated:
And I will give you fair warning . . . to carry it out, that when [the bishop] finds any Latter-day Saint under his jurisdiction going to law with his brother before the ungodly, to bring him up and deal with him for his fellowship. This is a correct principle before God; and as Saints of God we should be governed by his laws, and not by the laws of the world. But these laws are made and provided for our protection, and when it is proper and right we can make use of them in common with other citizens. But we have laws among ourselves, and all honorable men among us will submit to the decision of our Church authorities, and those who are not honorable we do not want, and we will cut them off. [FN68]
3. Separation of Ecclesiastical and Secular Adjudication
The most striking aspect of early church attitudes toward secular justice is not the preference for religious administration of secular laws or the vehemence of the church's protest against the secular legal *583 system. Rather, it is the degree to which these early attitudes differ from current Latter-day Saint attitudes towards secular law and lawyers. Presently, several of the highest ranking church leaders are lawyers. The church-sponsored university supports a law school. Moreover, jurisdiction in LDS church courts now is strictly limited to ecclesiastical matters. Latter-day Saints do not have the option, as they had in earlier years, of taking their property, tort, or contracts issues to a church court for adjudication. [FN69] The church's General Handbook of Instructions cautions that disciplinary councils should not decide property rights or civil disputes; if members come to church leaders requesting their mediation, leaders may provide private counsel without the church's imprimatur or involvement. [FN70] Likewise, the General Handbook states that formal discipline may only affect an individual's membership and participation in the church community; [FN71] it is ecclesiastical, not civil or criminal. An 1835 revelation to Joseph Smith supports this pronouncement:
[A]ll religious societies have a right to deal with their members for disorderly conduct, according to the rules and regulations of such societies; provided that such dealings be for fellowship and good standing; but we do not believe that any religious society has authority to try men on the right of property or life, to take from them this world's goods, or to put them in jeopardy of either life or limb, or to inflict any physical punishment upon them. They can only excommunicate them from their society, and withdraw from them their fellowship. [FN72]
Nonetheless, when the Latter-day Saint church was the sole governing body in Utah, it did not refuse to adjudicate civil matters. Nor did the church exclude itself from the civil sphere in the years after the U.S. Congress made Utah a territory in 1850 and expanded the jurisdiction of secular courts. Nevertheless, by the late 1890s, the secular authority of LDS church courts had basically ended. [FN73] The role of the church court changed as Latter-day Saints became less isolated *584 physically, as the number of non-Latter-day Saints in the region increased, and as statehood in 1896 fully integrated the secular government of Utah into the U.S. federal system. Where federal and state governments had jurisdiction and exercised authority, it became increasingly less practical to allow church court adjudication of civil disputes and criminal matters.
The movement from one-court system to the division of secular and ecclesiastical courts was a slow process rather than a single event, as was the changing attitude towards secular justice. In 1889 the church officially declared
that no Bishop's or other court in this Church claims or exercises the right to supersede, annul or modify a judgment of any civil court. Such courts while established to regulate Christian conduct, are purely ecclesiastical, and their punitive powers go no further than the suspension or excommunication of members from Church fellowship. [FN74] Nonetheless, in 1900, some church courts still sanctioned members for violation of the exclusive jurisdiction rule when they sued other members in the civil courts [FN75] and in 1903 the First Presidency of the Church reiterated the view that "it is deemed wrong for brother to go to law against brother," even while stating that:
the courts of the Church are entirely ecclesiastical. They adjudicate between Church members in matters of dispute and in the promotion of Church discipline. Litigation among [members] is deprecated . . . . But no penalty is enforced other than disfellowshipment, or excommunication, as the extreme punishment. The courts of law are recognized in their secular capacity and their decisions are honored and observed. [FN76]
In 1908, however, a committee of church apostles recommended that LDS church courts not decide cases involving the collection of ordinary debt. [FN77] Without access to church courts to resolve what would seem a fairly common disagreement, plaintiffs in ordinary debt cases would apparently be free to bring actions against other members in civil courts without risking ecclesiastical sanction. Nonetheless, in 1919 the church still encouraged its members to resolve disputes within the community, without resort to secular law:
*585 We hold that in matters of difference between brethren, in which no specific infraction of the secular law is involved, and in offenses called 'civil' as distinguished from 'criminal' it is as truly unworthy of members of the Church today as it was in Paul's time that 'brother goeth to law with brother' and that it stands to our shame if righteous judgment cannot be rendered among ourselves. [FN78]
The 1921 Instructions to Bishops and Counselors, Stake and Ward Clerks encouraged mediation and spiritual ministrations at local church levels where disputes arose, and referral to a higher ecclesiastical leader where such ministrations were ineffective, but did not indicate a duty on the part of members to refrain from using civil courts. [FN79] In 1928, the Handbook of Instructions stated simply that the church would not shield lawbreakers nor impose secular penalties. [FN80] By 1983, the Handbook of Instructions was more explicit, explaining that church courts were not the arbiters of business relationships. [FN81] Likewise, the 1985 Handbook of Instructions urged church leaders to prevent members from using the threat of church discipline to pressure resolution of disputes. [FN82] Where church courts had earlier been the preferred dispute resolution mechanism, and recourse to civil courts against members potential grounds for excommunication, the implication of the 1985 General Handbook statement is that church standing should not generally be an issue where members disagree, even if civil litigation occurs.
The 1989 General Handbook furthered this long term separation of ecclesiastical and civil courts through a subtle rhetorical change. The 1989 General Handbook refers to the church disciplinary system rather than the church judicial system. [FN83] What were formerly called church courts are now referred to as church disciplinary councils. [FN84] The 1989 General Handbook emphasizes informal church discipline, such as counseling and probation, rather than excommunication and formal church sanction, as disciplinary measures that often bring about *586 repentance. [FN85] The 1989 General Handbook does suggest that considering and implementing formal church discipline may be necessary to help some transgressors change their behavior and their hearts to receive the blessings of redemption, [FN86] but the rhetorical change from a judicial system to a disciplinary system, with emphasis on informal counseling, underscores the ecclesiastical nature of church discipline, further distinguishing that discipline from secular adjudication.
Attitudes towards secular justice itself and lawyers likewise changed gradually. Brigham Young's harsh statement regarding secular law and lawyers, and President John Taylor's later reaffirmation of those sentiments, are best understood in historical context. In conjunction with their difficulties receiving legal protection against violence in Missouri and Illinois, Latter- day Saints perceived a corrupt legal system in the secular territorial courts of Utah, "a deadly hostility" that resulted in "vile persecution" and partisan juries "selected for their known enmity to the parties accused, or to the principle involved in the trial." [FN87] Given the prejudice of the secular legal system, "a Latter-day Saint would almost be as safe in seeking for justice in the infernal regions, or at the hands of Algerine pirates, as in courts of this character." [FN88] The early church leaders did not disdain secular law as such for they also urged members to "rally around the standard of freedom, uphold the flag of the Republic, sustain the principles of human liberty, and maintain inviolate the constitution of the United States and all laws in accordance therewith." [FN89] It was rather the bias and prejudice Latter-day Saints perceived in the legal system and the lawyers who helped implement it that won their wrath. As that bias and prejudice faded, resort to secular courts became less problematic. Current church leaders do not condemn the secular court system, in Utah or any other state, as biased against Latter- day Saints and their way of life.
Further, the 1869 driving of the golden spike in Promontory, Utah, that completed the transcontinental railroad, [FN90] and the later development of Ogden and Salt Lake City as Western rail stations, [FN91] tugged Latter- *587 day Saints geographically and economically back into the American web of membership. The railroad brought profound social and economic changes to Utah and Latter-day Saint life. [FN92] With their geographic and economic isolation ending, and the renunciation of the practice of polygamy, being LDS no longer largely excluded an individual from participation in the broader American public government. Because of this growing integration and the rise of secular authority, church courts once again began focusing exclusively on ecclesiastical responsibilities. Today, ecclesiastical adjudication is the LDS church court's only function, in scripture and in practice.
4. Contrasts between Latter-day Saint Courts and American Courts
Because of the general decrease in their secular authority and because of their distinct separation from a civil judgment role, Latter-day Saint church courts no longer adjudicate the rights and responsibilities of membership in the public legal community. Church courts still, however, play an important role in defining what it means to be Latter-day Saint. Church courts today follow the basic procedures set out in the early 1800s, although local church leaders periodically receive additional guidelines. In addition to the scriptural Doctrine and Covenants, the General Handbook of Instructions provides a compilation of current guidelines, addressing issues such as the purposes of church discipline, confessions and confidentiality, the transgressions for which church disciplinary councils are mandatory and those for which a bishop may exercise his discretion. [FN93]
(a) Purposes of Ecclesiastical Discipline
In a review of the church's general handbooks from their beginning in the late nineteenth century until 1980, Lester Bush identified implicit conceptions of the ecclesiastical purpose of church courts: a purification of the church by casting out those who were unwilling to comply with church commandments, a punitive purpose as members were denied privileges of church membership on a sliding scale related to the seriousness of their transgression, and a desire to preserve the dignity of *588 the church. [FN94] Additionally, beginning in the late 1970s, Bush notes a new explicitly stated purpose: church discipline facilitates the repentance process. [FN95]
The General Handbook published in 1989 emphasizes that church discipline is to focus on the souls of transgressors, encouraging repentance, as well as to protect the innocent and safeguard the institutional Church. [FN96] The 1989 General Handbook explains that church discipline helps individuals to repent by encouraging them to recognize sin, provide restitution, and recommit themselves to follow God's way. [FN97] Where sin results in pain and suffering, repentance and renewed commitment to God restores wholeness. [FN98] In other words, violation of the rules of membership estranges one from the community and from God. Repentance, the process of complying with those rules, relieves that estrangement.
With the primary goal being to save the soul of the transgressor, the ecclesiastical process focuses on the individual's desire to change, and not on adversarial burdens of proof and production, judgments of guilt and liability, or assigning punishment and apportioning fault as in the secular system. Certainly, identifying someone as a transgressor implies guilt, but the second purpose of church discipline is to protect the innocent, both those who have been wrongly named as transgressors and those affected by the transgressions of others. The adversary is sin, not a court opponent. With sin as the opponent, many LDS church courts begin not with an accused in the formal sense, someone haled before the court involuntarily, but with a penitent individual who has himself recognized his transgression and initiated the disciplinary process through a confession to an ecclesiastical leader. [FN99]
Moreover, unlike secular American courts, LDS church courts do not create a body of ecclesiastical common law or doctrine. Decisions are not reported or otherwise available for bishops and local high councils to review. Latter-day Saint disciplinary councils entertain questions of individual transgressions, not questions of church doctrine except in the very limited sense of saying what church doctrine is not when they excommunicate or otherwise discipline someone for apostasy, a relatively infrequent occurrence. The vast majority of *589 church discipline deals with sexual transgressions, an area in which the rules of pre-marital chastity and marital fidelity are well-articulated.
(b) Procedures and Structure
Similarly, Latter-day Saint church courts differ significantly from American civil courts in their lack of focus on procedure. The General Handbook specifically notes that, while the procedures in church courts must be fair, procedures appropriate in secular civil and criminal courts are inapposite in ecclesiastical discipline. [FN100] The General Handbook outlines the basic structure of a disciplinary council. [FN101] After beginning with prayer, the presiding church leader, or someone he designates, states the alleged transgression, which the individual then admits or denies. [FN102] If the individual denies the alleged conduct, a church leader presents evidence of the transgression, including witness statements and documents, to which the individual responds. [FN103] If the individual admits the transgression, the presentation of evidence and witnesses may largely be truncated, except to the extent that they comment on the individual's efforts at repentance. Both the church leaders and the individual may question the witnesses involved. [FN104] The General Handbook sets forth no specific procedural limitations, such as might be found in the Federal Rules of Civil Procedure, except that questioning be done in a polite, orderly manner and all relevant matters should be presented before the presiding church officer makes a decision. [FN105] After the presentation of relevant matters, the individual leaves the room and the church leaders once again engage in prayer as they deliberate the decision. [FN106]
The presiding church leader makes the final decision regarding the individual's ecclesiastical standing and seeks the support of the other men participating in the council. [FN107] A high value is placed on the unanimous support of that decision by the other council members. [FN108] Although members of a high council may vote to sustain the officer's decision, a negative vote does not veto it. [FN109] Nonetheless, the presiding *590 church officer should work diligently to resolve concerns and reach a consensus. [FN110] The individual subject to a church disciplinary council may appeal the decision of lower church disciplinary councils up to the First Presidency of the church. [FN111]
The General Handbook reminds high councilors, through quotations from the Doctrine and Covenants, of their role in a disciplinary council. [FN112] One half of the councilors assigned to speak are "to stand up in behalf of the accused, and prevent insult and injustice." [FN113] The councilors are not witnesses per se, nor attorneys charged with defending a client with the utmost zeal, nor, like a secular jury do they have the power to make a final decision in the case. Rather, while they are not prosecutors or defenders or a jury, [FN114] they have a limited advocacy role to speak responsibly in preventing insult and injustice to the accused individual.
The structure and procedures of LDS disciplinary councils evidence a different understanding than that found in secular courts of the purpose of the court and the accused's relationship with the community. In contrast to the adversarial nature of the American court system, with clearly separate roles for attorneys acting as prosecutor and defender, prosecutors and defenders as such do not exist in the Latter-day Saint disciplinary system. Attorneys play no role as both the individual and the church essentially represent themselves. Moreover, the presiding church officer may be both accuser as he presents evidence of the transgression in a contested case, and judge as he makes the final decision regarding the individual's standing in the church. The presiding church officer also has pastoral duties that extend beyond the disciplinary council itself, primarily assisting the disciplined individual *591 to return to full fellowship in the church. [FN115] As discussed below, it is precisely this lack of procedure and formal representation and the mixing of roles, that some criticize in LDS disciplinary councils as undermining their fairness.
The American judicial system relies on the adversarial process to administer justice. Latter-day Saint disciplinary councils, in contrast, are grounded in shared commitments, understandings, and experiences. Voluntary forthrightness and honesty on the part of all participants, rather than grueling cross- examination and adversarial roles, reveals the issues and answers. The shared commitment to repentance and obedience to God's laws ideally motivates all participating in a disciplinary council, from the accused individual to church leaders and witnesses. Facilitating the individual's reconciliation with God and his community on earth is the goal. The community affirmatively joins in that reconciliation as the participants in a disciplinary council pray together, as high councilors speak on behalf of the individual, and the presiding church officer works with the individual to return to full fellowship in the church.
(c) Sources of Law
Given the individual rather than precedent-setting nature of Latter-day Saint ecclesiastical discipline and without reported decisions, local church leaders, unlike secular judges, have nothing akin to the common law to guide them. Although church leaders do rely on the General Handbook, the Handbook is hardly comparable to astatute. It contains very few mandatory sanctions, with most decisions left to the local leader's discretion. When making a decision regarding church discipline, the General Handbook suggests that a leader prayerfully consider such issues as violation of religious covenants, whether the individual held a position of trust or authority, repetition of the sin, magnitude of the sin, the age, maturity, and experience of the individual, the interests of the innocent, the time between the transgression and the confession, voluntary confession, and evidence of repentance. [FN116] However, these are only factors to consider and do not dictate a decision, rather the leaders should seek the will of the God through prayer. [FN117] The General Handbook dictates a specific decision only in the case of murder; if an individual has committed murder he must be *592 excommunicated. [FN118] Murder is defined as the wilful taking of human life, without justification. [FN119] Thus a bishop or high council has discretion far beyond that of a secular judge.
This is not to say, however, that the discretion of bishops and high councils is unfettered or their decisions without guiding principle. According to the Doctrine and Covenants, bishops should turn to the scriptures in their decisionmaking, to judge "according to the laws of the kingdom which are given by the prophets of God." [FN120] Scripture, as a record of the laws given by the prophets of God, may provide an applicable rule, such as "Thou shalt not steal; and he that stealeth and will not repent shall be cast out." [FN121] Given the purposes of ecclesiastical discipline, however, more important than the specific legal rule is the guidance that scripture can provide on the meaning and process of repentance, both to those administering church discipline and those subject to it. For example, a bishop or high council may read, in preparation for or as part of a disciplinary council, Christ's counsel to the woman taken in adultery to "go, and sin no more" [FN122] or about the joy in heaven over one sinner that repents. [FN123] Scripture may also be part of informal probation or ecclesiastical counseling sessions.
Similarly, bishops take seriously the counsel to use prayer in the decisionmaking process, to be open to inspiration from God, and thus to voice a decision as directed by God. [FN124] In fact, the General Handbook states that inspiration from the Lord is essential in the disciplinary process. [FN125] References to judicial principles of decisionmaking such as stare decisis and legislative intent simply have no meaning in an ecclesiastical system founded on scripture, prayer, and divine inspiration. Rather, when explaining a formal disciplinary action, a bishop or high council may describe the decision as "revealed through inspiration" and "being the words given to us by our Heavenly Father's spirit." [FN126] Revelation and inspiration are the interpretive tools that guide Latter-day Saint disciplinary councils.
*593 (d) Privacy and Confidentiality
Given their different purposes, it is not surprising that LDS church discipline revolves around privacy and confidentiality in a way that American civil and criminal courts generally do not. Although the church council sends a report of formal disfellowshipping or excommunication to the First Presidency of the church, the entire proceeding is usually held in strictest confidence. [FN127] The General Handbook specifically counsels church leaders of their solemn duty of confidentiality when members confess to them. [FN128] As an ecclesiastical matter, privacy and confidentiality further the goal of assisting individuals in repentance. By keeping transgressions and church disciplinary actions confidential, the church avoids labeling an individual and fueling the fires of gossip. Consequently, an individual may find it easier to change because others, unaware of the transgression or church discipline, thus expect the best, rather than the worst, from him.
There are of course times when the second and third purposes of church discipline, protecting the innocent and preserving the integrity of the church, may prevail over the general principles of privacy and confidentiality. According to the General Handbook, a bishop may make a general announcement to other church members of official ecclesiastical discipline when a transgressor engages in predatory conduct that could seriously harm others or is otherwise flagrant in ridiculing church leaders or teaching false doctrine. [FN129] Even then the announcement retains a commitment to confidentiality as it is most usually a general statement that the individual has been formally disciplined for acting against the laws and mandates of the Church, [FN130] rather than a specific outline of the offending conduct.
In an apparent effort to serve the third purpose of church discipline, protecting the integrity and good name of the church, the church has announced excommunications when the action has already received media attention. For example, when George P. Lee, a general authority serving in a significant and highly visible leadership position, was excommunicated in 1989, the church publicly stated that his conduct, including apostasy, was "unbecoming a member of the Church." [FN131] *594 Likewise, in announcing the 1979 excommunication of Sonia Johnson, a prominent feminist who supported the Equal Rights Amendment, the church noted that, although "the proceedings are usually private and confidential," Ms. Johnson's recourse to the media necessitated a public response. [FN132] The church set forth in unusual detail the reasons for her excommunication. The church itself had taken a strong stand against the Equal Rights Amendment, but stated that Johnson's public and vocal support for the Equal Rights Amendment was not among the grounds for her excommunication. [FN133] Rather, the church stated that Johnson was excommunicated because
in her advocacy of [the Equal Rights Amendment] Mrs. Johnson expressed attitudes and views which went beyond that issue and constituted a direct and irresponsible attack upon the Church, its leaders, doctrines, and programs. In public statements she urged the obstruction of the Church's worldwide missionary effort, demonstrated she was not in harmony with Church doctrine, and misrepresented and held up to ridicule the leadership and membership of the Church. [FN134]
Similarly, when local councils excommunicated six individuals in 1993, the church commented publicly on those excommunications "in light of extensive publicity" the actions had already received through the individuals' communication with the press. [FN135] The church noted that "it is difficult to explain church disciplinary action to representatives of the media" because "considerations of confidentiality restrain public comment by Church leaders in such private matters." [FN136] In contrast to the announcement of SoniaJohnson's excommunication, this statement did not name the six excommunicated individuals nor specify the offending conduct. The announcement did note that the officers of the church "have the responsibility to preserve the doctrinal purity of the Church," thus intimating apostasy on the six individuals' part. [FN137]
Despite the three cases noted above, public announcements, particularly published accounts, of excommunications are extremely rare. In practice, unless the disciplined individual shares pertinent information with others or a church official breaches his duty of confidentiality, public knowledge of the action will most often be quite *595 limited. In cases where the church has issued public announcements, those announcements have most often been responses to media attention. The church usually does not initiate the publicity. Indeed, even when speaking publicly, in most cases the church notes that it largely prefers church disciplinary actions remain confidential.
Resolving Dual Membership
Church and civil courts adjudicate differently the rights and responsibilities of membership in their respective communities. Latter-day Saint bishops and high councils rely on divine inspiration and scripture rather than formal procedure and substantive law. LDS disciplinary councils and their decisions are usually confidential rather than a matter of public record. Indeed, the church has made significant efforts to distinguish church courts from civil courts, in both purpose and procedure.
Some individuals who encounter LDS church courts accept the distinction between ecclesiastical and secular courts. These individuals rely almost exclusively on criteria derived from their membership in the LDS community to evaluate Latter-day Saint disciplinary councils. Other individuals do not experience Latter-day Saint church courts as entirely and inherently different from secular courts. For these individuals, membership in the American legal community and procedural criteria derived from that membership, impact their experiences with and perceptions of LDS church courts. Because, as explained above, the LDS church largely keeps ecclesiastical discipline confidential, this section relies primarily on published accounts by the relatively few individuals and church leaders willing to make public church discipline they have experienced or administered. [FN138] Of course, *596 the individual views noted below are not universal. Rather, they give qualitative examples of how specific individuals have answered the existential questions posed above.
1. Distinctly Latter-day Saint Criteria
Some individuals involved with church courts, who believe that the leaders do in fact receive divine inspiration and who desire to maintain their membership in the LDS religious community, describe their experiences with church courts primarily in religious terms. They emphasize the spiritual purposes of the courts rather than any similarity with secular courts.
One anonymous woman characterized her husband's experience with a church court and its effect on her own life as "a painful way to grow." [FN139] After being excommunicated, another anonymous person commented that "I have just lost the most precious thing in my life, and nothing will stand in my way until I have regained it." [FN140] One woman described the deeply spiritual nature of the disciplinary council and the men that readmitted her to full fellowship in the church:
As I knelt in prayer with members of the bishopric, I felt strongly the influence of the Spirit in the room. For the first time in my life, I felt a brotherly love so strong I cannot express it. . . . When I returned home, I wanted to laugh and cry and tell my family everything, but everyone was asleep. So I prayed to Heavenly Father, thanking him for his love and kindness for honorable men who act as righteous judges . . . . [FN141] *597 A church leader echos her sentiments, calling church courts "not courts of retribution . . . but courts of love." [FN142] After admitting his initial feelings of anxiety regarding church courts, another church leader described the deep spiritual bonding that he experienced when he helped people change their lives for the better through church courts. [FN143]
The value and appropriateness of a Latter-day Saint church court for these individuals thus rests to a large degree on the commitment they have to that community, its basic beliefs, and the ecclesiastical purposes of the court. While they may criticize LDS church courts, their criticism would stem from distinctly Latter-day Saint criteria: whether the leader in fact received divine inspiration and whether scripturally-based procedures and attitudes were in evidence. For these individuals, their membership in the American legal community bears little apparent relevance to either the purposes or procedures of Latter-day Saint disciplinary councils.
2. Co-mingled Criteria
For other individuals, membership in the American legal community significantly impacts their perception of and experience with LDS church courts. Like the individuals who evaluated Latter-day Saint church courts primarily in ecclesiastical terms, these individuals may have a deep commitment to their religious community. Their perception of fairness in church courts, however, is less distinctly LDS, less separately religious, augmented instead by their membership in the American legal community. They draw on their experience in the formal legal community when evaluating church courts. Given values drawn from the formal legal community, they may view the lack of formal procedures and representation, as well as the conflation of roles, as troubling.
For example, J. Edward Decker described his own experience and that of several friends with church courts as extremely unfair. Church courts were unfair because, among other things, defendants had no right to subpoena records or people, defendants could not record the proceedings, the court acted as both accuser and judge. [FN144] Rather than assessing fairness according to whether church leaders received divine inspiration, Decker used procedural norms associated with the American legal system as a watermark for determining fairness. Decker *598 essentially urged a remake of LDS church courts in the image of American civil courts, with no reference to the distinct ecclesiastical purpose of a Latter-day Saint church court.
In a written response to her excommunication, Janice Allred likewise appealed to values of formal legal government:
The Church may certainly punish those who transgress certain commandments and do not repent . . . but these commandments must be made known to the members along with the consequences of disobeying them . . . Church discipline must follow the rule of law and not be imposed arbitrarily. [FN145]
Allred's appeal to the rule of law, unlike Decker's appeal to procedure, is intimately bound up with internal Latter-day Saint definitions of obedience and disobedience. In defining what obedience and faithfulness meant to her, Allred brought to bear criteria and values from both the American legal community and the Latter-day Saint religious community. She bore testimony of her faith while at the same time arguing that the church should follow the rule of law. [FN146]
David Wright likewise drew on his membership in both the American and LDS communities when evaluating the disciplinary procedure that ended with his excommunication. At one point, Wright expressed his dismay that scripturally- based procedures were not followed in the high council proceedings. Of the two high councilors assigned to speak on his behalf, "only one [actually] spoke in [[his] favor and the one who did . . . did so weakly." At another point, Wright expressed his concern that he "was being judged by a jury not composed of my peers." [FN147] He then appealed explicitly to legal concepts found in the U.S. Constitution:
Mormonism also respects the Constitution of this land and even views it as inspired. But disciplinary proceedings against scholars implicitly mock the freedoms enumerated in that document. While the Constitution does not require that religious institutions hold to its principles, great dissonance arises when a member is allowed freedom of expression and conscience outside of the church but is denied it inside the church or with regards to church issues. [FN148] *599 One Oklahoma woman refused to participate in a disciplinary council when a church leader told her that secular laws don't necessarily apply in church courts: "I won't abandon my First Amendment rights. . . . I don't step my foot anywhere that my Constitutional rights can't accompany me." [FN149]
Essentially, Wright pinpointed the existential issue for some individuals who belong to multiple communities. An individual may experience significant dissonance when the myriad of communities to which he belongs have different values and adjudicate membership differently. To overcome that dissonance and improve Latter-day Saint church courts, Wright urged the LDS community and its courts to consider and incorporate certain values and procedures that the American legal community esteems. Allred did not specifically identify dissonance in her dual Latter-day Saint and American membership, but intermingled values and procedures from both in arguing against her excommunication. Decker, on the other hand, overcame any conflicts between the two by rejecting distinctly LDS criteria in favor of reliance on procedures associated with the American legal community. Likewise, the Oklahoma woman expressed a strong preference for American constitutional rights to the degree of refusing to participate in a Latter-day Saint disciplinary council.
Individual appeals to the images and procedures of the formal American legal system seem unlikely to significantly move Latter-day Saint church courts away from scripturally-based procedures and reliance on divine inspiration as the primary means of ensuring fairness. Despite changes in implementation and emphasis, the essential structure of LDS church discipline is set in scripture and the ecclesiastical purposes of the community. Moreover, the underlying commitment to a particular vision of the human good embodied in LDS theology lessens the perceived need for procedure to mediate among visions of the good.
3. Other Impact
Individuals, nonetheless, have used their membership in the American legal community to challenge Latter-day Saint church courts and procedures in other ways. In 1985, Norman Hancock sued the LDS *600 church after a church court excommunicated him. [FN150] Hancock claimed that the church court proceedings defamed him, placing "him in a false light in the public eye' and 'permanently injur[ing] his reputation, business, and standing in the community." ' [FN151] He reasoned that "the term excommunicated itself is damaging to my reputation among both Mormons and non-Mormons . . . because it presumes someone is bad or has done something wrong." [FN152] When he had approached church leaders asking that his name be taken off church records, the church leaders initiated church court proceedings. Hancock claimed that he should have been free to disassociate himself from the church formally without the epithet of excommunication attached to his name. The case ultimately settled out of court. [FN153]
Civil courts have responded in different ways when deciding similar cases brought against other churches. For example, in Paul v. Watchtower Bible and Tract Society, [FN154] Janice Paul complained of defamation, invasion of privacy, fraud, and outrageous conduct where the Jehovah's Witnesses shunned her, treating her voluntary disassociation the same as a disfellowshipping for wrongdoing. The Ninth Circuit Court of Appeals held that the First Amendment protected the practice of shunning, [FN155] with the implicit message being that a church, if it so chooses, may treat voluntary disassociation and *601 discipline for wrongdoing the same. On the other hand, the Oklahoma Supreme Court allowed on remand a damages award to Marian Guinn, a woman whose sexual misconduct was announced to a Church of Christ congregation after she withdrew her membership. [FN156] The court reasoned that the First Amendment did not protect the church's actions after the plaintiff withdrew from membership. [FN157] Rather, the First Amendment protected the plaintiff's right of association: "[t]he First Amendment clearly safeguards the freedom to worship as well as the freedom not to worship," [FN158] even though the church claimed that it had no doctrinal provision that would allow withdrawal of membership. [FN159]
Whether or not there is any connection in fact with Hancock's suit against the LDS church filed in 1984, with Janice Paul's case against the Jehovah's Witnesses, or Marian Guinn's case against the Church of Christ, or any other civil court case, LDS church procedure regarding voluntary disassociation and ecclesiastical discipline changed in the 1989 General Handbook. The 1983 General Handbook makes no mention of what a bishop or high council should do if a member requests that his name be removed from the church's records, although in practice the request was treated as an act of apostasy. The 1989 General Handbook, on the other hand, specifically states that if a member makes a formal written request that his membership be revoked, the local leaders should comply with that request by filling out several forms and sending them to the church offices rather than initiating a disciplinary council. [FN160] The 1989 General Handbook does caution, however, that if ecclesiastical leaders are considering disciplinary action, the administrative name removal process should not be used as a substitute for a disciplinary council. [FN161] The change to an administrative procedure reflects a core American value: individual freedom and the right of association. Although the consequences in terms of membership in the religious community are the same, the change from disciplinary action to administrative procedure shifts the emphasis away from the community's formal control of membership toward the individual's freedom to choose. However it came about, a value central to membership in the American legal community emerged *602 in the way the Latter-day Saint community and its courts adjudicate membership.
An individual belongs to a web of communities, each providing for and limiting membership differently. Latter-day Saint church courts, or disciplinary councils, and American courts differ significantly in adjudicating the rights and duties of membership in their respective communities. For some individual Latter-day Saints, LDS church courts are distinctly and solely religious. For other individuals, membership in a formal legal community impacts their perception and experience with church courts. These individuals often appeal to the values and procedures of the formal legal system in evaluating Latter-day Saint church courts.
Some individuals have also called on American civil courts to judge Latter- day Saint practices, such as polygamy or excommunication of a member who has voluntarily chosen to renounce his membership in the religious community. American courts have impacted LDS practices and membership in the Latter-day Saint community. On the other hand, LDS church courts have served as civil and criminal courts, adjudicating aspects of membership in the American legal community. For individuals with concurrent membership in both the Latter-day Saint and American communities, the processes of adjudication by either court system, as well as the broader interaction between the communities as a whole, can profoundly affect membership in the opposing community. The complex web of communities to which an individual belongs, their consonance and conflict, helps define that individual. At the same time, the web of membership allows the individual an opportunity to affect the manner in which each community provides for and adjudicates membership, even as she answers the question: how do I live in the communities to which I belong?
[FNd1]. Associate Professor of Law, J. Reuben Clark Law School, Brigham Young U. I must begin with a caveat. While I am an active member of the LDS Church, I hold no ecclesiastical office or position that entitles me to speak on the Church's behalf. Some Latter-day Saints may agree with what follows in this article, some may disagree.
[FN1]. See Thomas Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am J Intl L 359 (1996) for a recent discussion of the pressures nationality faces in defining individual identity.
[FN2]. A public government is, of course, a formal legal system on the local, regional or national level, such as the province of Quebec or the United States of Mexico. A private government is less precisely defined. Depending on the criteria one employs, private governments range from company towns to trade associations to religious communities, all comprised of individuals interacting and sanctioning violations of group rules. See Stewart Macaulay, Private Government in Leon Lipson & Stanton Wheeler, eds, Law and the Social Sciences 445-49 (Sage Publishing, 1986).
[FN3]. Scholarly work on legal pluralism is voluminous. See, for example, Max Weber, On Law in Economy and Society (Harv U Press, 1954); M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Clarendon Press, 1975); Kayleen Hazlehurst, ed, Legal Pluralism and the Colonial Legacy: Indigenous Experiences of Justice in Canada, Australia, and New Zealand (Arebury, 1995).
[FN5]. I use American to refer to citizenship in the United States of America. In English, there is no other widely accepted term for such citizenship. I recognize that many who are not citizens of the United States of America may nonetheless refer to themselves as American because they live on the American continent.
[FN6]. The impact of the Latter-day Saint community on public government in the United States is beyond the scope of this paper, but well documented elsewhere. See, for example, D. Michael Quinn, The LDS Church's Campaign Against the Equal Rights Amendment, 20 J Mormon Hist 85 (1994); Statement of the First Presidency on Basing of the MX Missile, LDS Church News 2 (9 May 1981); William Appelman Williams, Backyard Autonomy, The Nation, front cover (5 September 1981) (discussing LDS opposition to MX missiles in Utah); Frank J. Jonas, Reapportionment in Utah and the Mormon Church, 46 Proceedings of the Utah Academy of Sciences, Arts, and Letters, part 1, 19-20 (1969) (detailing church involvement in reapportionment battles).
[FN7]. This physical separation also raised a question of secular jurisdiction over the Mormons as between the United States and Mexico. See Robert S. Bliss, The Journal of Robert S. Bliss with the Mormon Battalion, Utah Hist Q 128 (October 1931) ("to day the 1t of Jan a publick meeting was called to adopt Laws for our regulation for the time being or untill the question is settled between U.S. and Mexico & we know whose hands we shall fall into.").
[FN19]. See id. For a discussion of the ordinances, see Dale Morgan, The State of Deseret 17-18 (1987). The people apparently ratified the ordinances on January 1, 1848. See Bliss at 128 (cited in note 7).
[FN23]. See, for example, Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830-1900 (U of Ill Press, 1988); Roberts, passim (cited in note 10).
[FN25]. In presenting the polygamy example, I do not mean to reduce all of the conflicts between Latter-day Saints and the broader American community to this single dimension. That conflict, and the subsequent integration of Latter-day Saints into mainstream American society, is of course complex and multidimensional involving politics, economics, geography, and theology.
[FN26]. Celestial Marriage: A Revelation on the Patriarchal Order of Matrimony or Plurality of Wives, Seer, January, 1853 in 1 The Most Holy Principle 16 (Gems, 1970), currently recorded as Section 132 of the Doctrine and Covenants (cited in note 9), without the early published title.
[FN28]. The Latter-day Saints' legal battles included Reynolds v United States 98 US 145 (1879); Miles v United States 103 US 304 (1881); Clawson v United States 114 US 477 (1885); Murphy v Ramsey 114 US 15 (1885); Cannon v United States 118 US 355 (1886); Snow v United States, 118 US 346, on habeas corpus sub nom. In re Snow 120 US 274 (1887); In re Nielsen 131 US 176 (1889); Davis v Beason 133 US 333 (1890); Late Corporation of the Church of Jesus Christ of Latter-day Saints v United States 136 US 1, modified 140 US 665 (1890), after remand 150 US 145 (1893); Bassett v United States 137 US 496 (1890); Cope v Cope 137 US 682 (1891); Chapman v Handley 151 US 443 (1894). See Randall Guynn and Gene C. Schaerr, The Mormon Polygamy Cases Sunstone, 11:5, 61 (1987), for a discussion of the constitutional legitimacy of Davis v Beason, Late Corporation of the Church of Jesus Christ of Latter-day Saints v United States, and Reynolds.
[FN31]. Edmunds Act, 22 Stat 30, ch 47, §§ 5, 8 (1882); see also, Firmage and Mangrum at 161 (cited in note 23). Jurors in Utah Territory were asked to sign an affirmation denying their participation in polygamy:
I, __________ being first duly sworn (or affirmed), depose and say that I am over twenty-one years of age, and have resided in the Territory of Utah for six months, and in the precinct of _____________ one month immediately preceding the date hereof, and (if a male) am a native-born or naturalized (as the case may be) citizen of the United States, and a tax-payer in this Territory, (or if a female) I am native-born, or naturalized, or the wife, widow or daughter, (as the case may be) of a native-born or naturalized citizen of the United States; and I do further solemnly swear (or affirm) that I am not a bigamist nor a polygamist; that I am not a violator of the laws of the United States prohibiting bigamy or polygamy; that I do not live or cohabit with more than one woman in the marriage relation, nor does any relation exist between me and any woman which has been entered into or continued in violation of the said laws of the United States, prohibiting bigamy or polygamy, (and if a woman) that I am not the wife of a polygamist, nor have I entered into any relation with any man in violation of the laws of the United States concerning polygamy or bigamy.
2 Messages of the First Presidency 342 (Bookcraft, James R. Clark, ed, 1965).
[FN34]. See B. Carmon Hardy, Solemn Covenant: The Mormon Polygamous Passage (U of Ill Press, 1992); Martha Sonntag Bradley, Changed Faces: The Official LDS Position on Polygamy, 1890-1990, 14:1 Sunstone 26 (1990); D. Michael Quinn, LDS Church Authority and New Plural Marriages, 1890-1904, 18:1 Dialogue: A Journal of Mormon Thought 9 (1985); Kenneth L. Cannon II, Beyond the Manifesto: Polygamous Cohabitation among LDS General Authorities after 1890, 46 Utah Hist Q 24 (1978).
[FN35]. F. LaMond Tullis, Mormons in Mexico: The Dynamics of Faith and Culture 54-55 (Utah State U Press, 1987); John C. Lehr, Polygamy, Patrimony, and Prophecy: The Mormon Colonization of Cardston, 21:4 Dialogue: A Journal of Mormon Thought 114 (1988).
[FN36]. An Official Statement from the First Presidency of The Church of Jesus Christ of Latter-day Saints, Deseret News, 17 June 1933, Church Section reprinted in 3 The Most Holy Principles (cited in note 26) 468, 471 (1971).
[FN37]. See Richard L. Evans, These Are The Mormons 9 (1960) ( "Excommunication is the penalty for practicing polygamy today."); The Church of Jesus Christ of Latter-day Saints, General Handbook of Instructions 10-3 (1989) [hereinafter General Handbook (1989)] (noting that those who persist in practicing polygamy after counsel from their church leaders are subject to excommunication). The General Handbook is a compilation of policy instructions that guide church leaders in the performance of their duties. The church does not circulate it publicly, although it is available in some libraries. I reference its contents in this paper with permission.
While this article was in production, the LDS Church issued a new handbook of instruction for church leaders, the first in nearly ten years. See The Church of Jesus Christ of Latter-day Saints, Church Handbook of Instructions (1998).
[FN39]. See, for example, Church of the Lukumi Babalu Aye v City of Hialeah, 508 US 520-69 (1993) (Souter, J. concurring) (citing various cases that rely on Reynolds v United States for the proposition that religious conduct may be regulated only when the conduct "poses some substantial threat to public safety, peace or order"); Employment Division v Smith, 494 US 872, 878 (1990) (relying on Reynolds v United States to uphold law penalizing sacramental use of peyote).
[FN40]. Doctrine and Covenants (cited in note 9), at § 42:37 and § 41:5, "He that receiveth my law and doeth it, the same is my disciple; and he that saith he receiveth it and doeth it not, the same is not my disciple, and shall be cast out from among you."
[FN43]. Id at § 107:72. Currently, a bishop is the leader of a local congregation but in the early days of the church, he had specific and distinct responsibility for temporal affairs. Id at § 107:68 (holding a bishop responsible for "administering all temporal things").
[FN57]. See Firmage and Mangrum at 322-70 (cited in note 23). C. Paul Dredge, Dispute Settlement in the Mormon Community: The Operation of Ecclesiastical Courts in Utah in 4 Access to Justice--The Anthropological Perspective, Patterns of Conflict Management: Essays in the Ethnography of Law 191 (Sijthoff and Noordhoff: Alphen aan den Rijn, K.F. Koch, ed, 1979); Stephen J. Sorenson, Civil and Criminal Jurisdiction of LDS Bishop's and High Council Courts, Task Papers in L.D.S. History, n 17, Appendix B--Summary of Trials in LDS Church Courts, 1847-52, 46 (April 1977). Throughout this paper, I have relied on secondary sources for information on church court cases in earlier Latter-day Saint history as current access to the LDS church's historical archives is extremely limited.
[FN58]. See, for example, Firmage and Mangrum at 341 (cited in note 23) (awarding damages in contract case), 357 (awarding damages in defamation case), 361 (imposing "39 lashes on his bare back" for horse theft); Morgan at 16 (cited in note 19) (imposing alternative punishments of $10 fine or ten lashes for theft). Morgan also notes that Latter-day Saint church courts imposed corporal punishment rather than imprisonment for criminal offenses because no jails existed. Id.
[FN69]. While church members may turn to their ecclesiastical leaders for counseling with marital difficulties, Latter-day Saint church courts do not entertain requests for civil or ecclesiastical divorce. Rather, when she wishes to remarry in a LDS temple, a civilly divorced woman makes a request for a cancellation of her previous sealing (for example, Latter-day Saint temple marriage for time and eternity) to the First Presidency, the highest ecclesiastical officers in the church. See General Handbook (1989) at 6-5 (cited in note 37).
[FN91]. See, for example, Don Strack, Ogden Rails: A History of Railroads in Ogden, Utah from 1869 to Today (1997); John Hoyt Williams, A Great and Shining Road: The Epic Story of the Transcontinental Railroad (Time Books, 1988); Hyrum Jenkins Smith, History and Results of Operation of the Salt Lake and Utah Railroad (1939).
[FN109]. See id. Dallin H. Oaks, a member of the church's First Quorum of the Twelve and a former member of the Utah Supreme Court, identifies two situations where the ecclesiastical rule regarding a sustaining vote may differ. First, "[w]hen a disciplinary council acts upon evidence in a manner comparable to a civil or criminal court, [for example, revelation assists the council in weighing the evidence] the presiding officer is the judge and his decisions do not have to be sustained unanimously by the other members of the council." The Lord's Way 242 (Deseret Book Co., 1991). In contrast, "[i]f a disciplinary council were to rely upon revelation to provide its finding of guilt, they could do so only in compliance with the procedure established for the action of priesthood councils generally.... In other words, if the disciplinary council relies on revelation to provide any element of proof not present in the evidence before the council, all members of the council must be united as to that element." Id at 243.
[FN112]. See also notes 49-53 above, and accompanying text. Bishops' courts have jurisdiction over women and male members of the church who do not hold the Melchizedek priesthood. High council courts have jurisdiction where excommunication of male members of the church who hold the Melchizedek priesthood appears likely and may also hear difficult cases. See id at 10-5, 10-6.
[FN138]. Certainly, it would be useful for the purposes of this paper to have a broader perspective on how individual Latter-day Saints experience LDS disciplinary councils. However, the logistical and ethical issues involved in conducting a broad survey of individuals subject to LDS ecclesiastical discipline are daunting. First, identifying an appropriate sample for either quantitative or qualitative research is problematic. Official Latter-day Saint church membership records are not readily available. While a researcher could visit Mormon congregations to identify members, the sample would then be biased towards individuals actively participating in the LDS community and would most likely exclude individuals who have withdrawn from it, including perhaps those whose experiences with Latter-day Saint church courts were less than ideal.
The lack of access to historical church court cases, (cited in note 57),-- which I presume would be less sensitive because the participants are no longer alive and thus public knowledge of their potential transgressions could not inhibit the repentance process or embarrass them--underscores the difficulties in doing current research. In fact, when I have mentioned in casual conversation that I was writing a paper on church courts, some individual Latter-day Saints have expressed concern that confidentiality might be compromised even when no specific individual case was at issue. Even some librarians who provided research assistance into public documents have responded with concerns about confidentiality. Latter-day Saints just don't talk publicly much about church courts. A review of the past twenty- five years of the church's official monthly publication for adults reveals only two articles by church authorities dedicated to disciplinary councils themselves. See Robert L. Simpson, Courts of Love, Ensign 48 (July 1972); M. Russell Ballard, A Chance to Start Over: Church Disciplinary Councils and the Restoration of Blessings, Ensign 12 (September 1990); A few other articles mention church courts in passing or in conjunction with the joy and relief a disciplined person felt on returning to full fellowship in the church. See, Name Withheld, Returning to the Fold, Ensign 54 (September 1997); Anonymous, Yearning to Return, Ensign 22 (August 1990); Gaye Galt, I've Been Cleared for Rebaptism, Ensign 39 (April 1990); Anonymous, A Painful Way to Grow," Ensign 16 (December 1987); Boyd K. Packer, Principles, Ensign 6 (March 1985).
Moreover, while I paraphrase the general handbooks of instruction in this paper with permission, the handbooks contain a notice that they were prepared solely for church leaders to administer the affairs of the church. See, for example, General Handbook (1989), at iii (cited in note 37). The General Handbook is not generally available to church members except men who serve in certain priesthood leadership positions, although it can be found in a few libraries.
[FN146]. Id. See also, 2 Case Reports of the Mormon Alliance 156-7 (Lavina Fielding Anderson & Janice Merrill Allred, eds, 1996) for Janice Allred's discussion of freedom of expression and conscience issues in connection with her excommunication.
[FN149]. Case Reports of the Mormon Alliance 294 (Mormon Alliance, Lavina Fielding Anderson & Janice Merrill Allred, eds, 1995). Of course, the Supreme Court has made essentially the same point as the church leader in this case: "Internal ecclesiastical procedure need not meet any 'constitutional concept of due process." ' Hadnot v Shaw, 826 P2d 978, 988 (citing Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 713 (1976)).
[FN150]. Similarly, in 1986, two Oklahoma women, Jeanne Hadnot and Suzette Ellis, sued the LDS church for defamation, intentional infliction of emotional distress and invasion of privacy when local church leaders excommunicated them. Hadnot, 826 P2d at 978. With many issues regarding the plaintiffs' failure to comply with procedural and evidentiary rulesas the backdrop, the court found no factual questions that would preclude summary judgment against them. Plaintiffs did not raise a sufficiently material question regarding the church's alleged public communication of the ecclesiastical charge against them. Id at 985. Nor did plaintiffs contend that they had voluntarily withdrawn from membership in the LDS church, a move that would have severed the church's authority to "prescribe and follow disciplinary ordinances without fear of interference by the state." Id at 984, 987, 988 (citing Guinn v Church of Christ of Collinsville, 775 P2d 776 (Okla 1989)). The court recognized that "[t]he Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking--its merits as well as procedure." Id at 988. The ecclesiastical abstention doctrine has come into play in a number of cases where plaintiffs have appealed to the secular court to right wrongs they perceived in ecclesiastical discipline. See, for example, F.G. v MacDonnell, 696 A2d 697 (NJ 1997) (directing trial court to conduct a hearing to determine if it could decide plaintiff's tort allegations against clergyman who announced her sexual misconduct to congregation without the court entangling itself it church doctrine); Korean Presbyterian Church of Seattle Normalization Committee v Lee, 880 P2d 565 (Wash App 1994) (holding that ecclesiastical abstention doctrine precluded recovery where plaintiffs brought action against church for announcing excommunications to the congregation) .
[FN156]. Guinn v Church of Christ of Collinsville, 775 P2d 766 (Okla 1989). In fact, Norman Hancock decided to sue the LDS church after he heard about the initial damage award Marian Guinn received in this case. Excommunicated Man Sues Church at 34 (cited in note 151).