Courts of Love: Legal Structures of the Church of Jesus Christ of Latter-day Saints

A paper written for the seminar "Legal Systems Very Different from Ours"

School of Law, Santa Clara University

I. Introduction

The Church of Jesus Christ of Latter-day Saints is a religious organization with over 12 million members.[1] The majority (about 52%) live outside of the United States and are mostly located in South America.[2] Within the US, most Latter-day Saints (LDS or Saints) live in the corridor stretching from Idaho and through Utah and down to Arizona.[3]

The Church is actively involved in the spiritual lives of its members, guiding decisions and behavior through exhortation and example. At times, however, members stray from the precepts of the Gospel and must repent for their sins. While this can be done privately for most minor sins, the Church provides a formal framework to correct the sinner. This framework has clear legal overtones. This paper attempts to describe and explain the basic legal structures that exist within the church.[4]

II. Organization of the Church

The church is made up of congregations called ≥wards,≤ each being led by a bishop. Bishops in the Mormon church do not go to school to become religious leaders, but are regular lay members who each serve for an undefined period of time. There is no set training or amount of church service required before one can become a bishop. Bishops receive most of their guidance on how to run a ward from the General Handbook of Instructions, a manual given to every bishop. [5] The bishop and his counselors are collectively referred to as the bishopric of the ward.

Within a ward, there are auxiliary groups which run Sunday School programs for all age groups. In addition, there are groups who deal with public relations, church welfare administration, and other activities. The leaders of these groups and any subordinate help that they might require are all appointed by the bishopric of their ward. Again, there is limited training for these individuals.

Wards are organized into groups called, ≥stakes,≤ which are led by a stake president. It is the stake president who appoints, or ≥calls,≤ bishops for the wards in that stake. Stake presidents also call the bishopπs counselor.

The General Authorities are responsible for leading the stakes and they are in turn lead by the Twelve Apostles. Finally, leading the whole Church is the Prophet (also called the President of the Church) and his two counselors who make up the First Presidency. The Apostles and the First Presidency are often referred to collectively as the Brethren. The first prophet in modern times was Joseph Smith, Jr. and the current Prophet is Gordon B. Hinckley.

The leadership of the church consistently push for conformity at the ward and stake level, regardless of nationality or geographical location. Every ward is set up with a bishop and his counselors, every ward meets for three hours, and every ward has a womenπs organization known as the Relief Society.

To ensure doctrinal conformity and purity, a ≥General Conference≤ is held twice every year. This is an opportunity for the leaders of the Church to address the general membership and encourage obedience, charity, or whatever else the leaders feel the members need. Even though there is rarely room in the Conference Center, many members travel to Salt Lake City at Conference time. The meetings held during General Conference are broadcast by satellite around the world, so that members everywhere have a chance to hear the leaders of the Church. For those areas where satellite reception is poor or too expensive, the sessions are also taped and mailed to each stake.

In addition to General Conference, members have an opportunity to build community feeling at Fast and Testimony meeting. This is a monthly meeting that occurs within the ward group. It takes place on the first Sunday of every month in place of the regular Sacrament meeting. The sacrament is still taken, but in place of the usual 2-4 speakers, the meeting is opened up to any member who wishes to express their feelings about the Church. Testimonies should be brief and contain statements about what that member ≥knows≤ to be true about the scriptures, Joseph Smith, God, or any other point of doctrine. The Bishop has the authority to ask a member to step down if they do not adhere to the rules or begin preaching false doctrine. Usually, these testimonies consist of a story from the preceding month that illustrated a gospel principle to that individual.

Members are baptized at eight years old. During baptism, the individual covenants with God to follow the example of Jesus Christ and to stand as a witness of Him. This covenant is renewed each week when the member takes the Sacrament, similar to a Catholic communion. Boys are eligible to receive the Priesthood at age twelve and progress to different ≥offices of the Priesthood≤ based on their age and worthiness. The highest office of the Priesthood is that of Prophet and Seer. Bishops, State Presidents and High Councilors are all ordained to the office of High Priest.

Girls do not receive the priesthood. They progress to different Sunday School classes based purely on age. There is a pretense at a worthiness interview to see if they may progress, but no young woman is held back because of sin.

The culmination of religious experience for a Mormon is their admittance to the temple. ≥[I]n order to be allowed to enter the temple, Mormons have to receive a åpermission slipπ from their bishop, which is called a temple recommend.≤[6] Temple recommends are renewed every other year. Each time renewal is sought, the member must go through an interview process with their bishop and then their stake president. ≥[T]his process provides a confidential opportunity for Mormons to reaffirm their basic core beliefs [ ] and to reevaluate their own progress in attempting to become better people [ ].≤[7] The memberπs righteousness is also determined through a series of questions concerning their beliefs and behavior. Members are asked if they believe in Jesus Christ, the Church, and the authority of the prophet. They are also asked if they strive to live up their covenants, are honest, and feel that they are worthy to enter the temple.

At the temple, members participate in ordinances through which they make further covenants to God. In addition, marriages are performed in the temple. ≥Mormons who have qualified to go to their temples and have there received sacred ordinances for themselves, are allowed to wear a special white undergarment [ ],≤[8] called ≥garments.≤ After attending the temple for their first time, members may then return to stand in as a proxy for those who are dead, so that even in the afterlife, individuals may receive those same ordinances. The temple is also where baptism for the dead occurs. Again, it is members who have been baptized already who stand in for the deceased in those cases.

III. Family

At the base of the church hierarchy is the family. Family members are responsible for each other and parents are held responsible for teaching their children how to behave. Members are taught that families are forever, but only if you all achieve salvation after this life. To have a ≥forever family≤ one must be found worthy to go to the Mormon temple and then be married there. Marriage in the temple is believed to be for ≥time and all eternity,≤ meaning that marriage is binding in this life and after death. Children born to a couple who have been married in the temple are said to have been born into or under the covenant. The covenant is the promise that the couple make before God in their marriage vows to be faithful and devoted church members and spouses.

The church teaches that the man is the head of the household.[9] Leaders have declared that wives owe their husbands obedience as long as he is a righteous man. Joseph Smith taught, ≥Wives, submit yourselves unto your own husbands, as it is fit in the Lord.≤[10] However, this message has softened in recent years, focusing more on the requirement that the man be obedient to God before he can expect his wife to follow him implicitly. President Harold B. Lee indicated, ≥No woman is expected to follow her husband in disobedience to the commandments of the Lord.≤[11] In public speeches made to the members, church leaders promote the image of wife as companion.[12] The Church also no longer preaches that husbands should expect complete and unquestioning obedience. For example, James Faust of the First Presidency said, ≥I urge husbands and fathers of this Church to be the kind of men your wives would not want to be without.≤[13]

Parents are expected to teach their children the right way to behave and if they fail to do so, ≥the sin is on the head of the parent.≤[14] However, no parent is ever held responsible in this life for the mistakes or sins of their children. This threat will only take effect at judgment day after this life.

Central to the control that the family exerts are specific activities that the church indicates are mandatory for a strong family. One of these is Family Home Evening which usually takes place on Monday evening. The family gathers together to hear a short devotional message and then play games. Another important activity is family prayer. It is usually up to the individual families how to accomplish this. Most families will pray together either in the morning or at night right before bedtime. Very dedicated families will read scripture together as well. Failure to have these activities in the family is not a serious sin, but it is still considered disobedience to Godπs commandments.

IV. The Church and the Community

The twelfth Article of Faith, penned by Joseph Smith, states that ≥We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring and sustaining the law.≤[15] This clearly states the churchπs position on patriotic duty and makes members attractive recruits for the FBI and CIA.[16] In addition, this has helped members set up small groups within countries that are otherwise not generally cooperative with proselytizing churches.

A good example of the Church demonstrating its desires to honor the law can be seen in Saudi Arabia. Because of individual membersπ contacts within the Saudi government, an agreement was reached that allowed the Mormon church the unique privilege among Christian churches of being permitted to meet weekly. The conditions set by the government were that no more than 20 people were to be gathered at any one time, that they could only meet in membersπ homes, and that members were not to discuss church matters outside of these meetings. Members in the Kingdom have abided by these rules for over twenty years, resulting in a strong (if somewhat covert) membership base in Saudi Arabia.

There are, of course, examples of when the Church has preached doctrines that were contrary to a host governmentπs aims and standards. A prime example in American history is polygamy. Although there was a law enacted that forbade polygamy in Illinois, the Latter-day Saints who had gathered in Nauvoo did have multiple spouses for a certain period of time. This is generally not believed to have been a wide-spread practice, but a certain percentage did engage in polygamy. Some claim that Joseph Smith, the founder of Mormonism, was killed because of his determination to continue the practice. After Smithπs death, the Saints were forced to leave the state if they would not live by the laws of Illinois.

Even after the Saints moved to Utah, there were conflicts with the government of the United States about the practice. Eventually, the leadership of the Church received revelation telling them to cease the practice.[17] The 1890 ≥Manifesto≤ indicated that no new polygamous marriages should be allowed, but that current polygamous families would remain intact in order to provide for the children of those families.[18] Splinter groups formed who did not agree with the new revelation and were consequently excommunicated from the Church. Utah was admitted to the Union as a state shortly thereafter.

V. Private Conflicts

The Church will rarely get involved in private conflicts between two members. Some rare instances in which it will include divorce and accusations involving sin. Differences of opinion over doctrine or direction of a church group are usually left up to the individuals to work out.

a. Divorce

Marriage must be performed in the manner proscribed in the Doctrine and Covenants, that is, in a Latter-day temple. This is the only way for a marriage to be binding on Earth and in Heaven for eternity. In the marriage ceremony, the couple is ≥sealed≤ to each other. This is why marriages in the Mormon church are often referred to as ≥sealings.≤ Dissolution of a temple marriage is long and difficult process. ≥While divorce or annulment proceedings are under way, a person may be issued or retain a temple recommend if a careful and searching interview shows that he or she is innocent of any serious wrongdoing in connection with the divorce or annulment and is otherwise worthy.≤[19] Therefore, if the bishop feels that the person is still worthy, they may continue to attend the temple while they wait for the marriage to be terminated civilly.

After a divorce or annulment is granted by the civil government, ≥a divorce clearance must be obtained from the First Presidency by the parties involved, if they were sealed to each other in the temple, before they may be permitted to continue temple attendance or receive a recommend.≤[20] The same is also true for individuals who had been sealed once before in the temple but are getting a divorce from a civil marriage. [21] This limitation on temple attendance indicates how serious divorce is considered in the Church. Other times that temple attendance is limited include failing a temple recommend interview or confessing a serious sin such as abusing drugs.

This system might lead members to use the system to exact revenge on their spouses. For example, if a member is angry at their spouse, they might tell the bishop that they are seeking a divorce. The Bishop will then have to look into the situation to see if either party is guilty of a serious transgression. This will mean that both will be interviewed and may face some inconveniences as the Bishop continues his investigation.

b. Conflicts with Leaders

If one has an issue with a leader, it is appropriate to address that concern in a one on one conversation. ≥There is nothing inappropriate about private communications concerning such differences, provided they are carried on in a spirit of love.≤[22] However, an apostle has recommended ≥five different procedures a Church member can follow in addressing differences with Church leaders[ ].≤ [23] These are: 1) ≥overlook the difference≤; 2) ≥reserve judgment and postpone any action≤; 3) address the leader privately in person or through a letter; 4) ≥communicate with the Church officer who has the power to correct or release the person≤; or 5) ≥pray for a resolution.≤[24]

Mormons should never publicly criticize their leaders for their decisions or their behavior in private. ≥Throughout our history we have had members who have criticized the Church and its leaders. Church disciplinary action against such members has been rare or nonexistent.≤[25] However, disciplinary action, including excommunication, is a result of publicly speaking against the doctrines or leadership of the church. In addition to church action, public critics ≥forfeit the guidance of the Spirit of the Lord. [ ] They inevitably lose spirituality and blessings.≤[26]

Members are taught that the Prophet can never lead the Church astray.[27] Supposedly God would end a prophetπs life before he had an opportunity to do much damage.[28] In addition, members are promised that if ever a false doctrine is taught by a leader (a prophet or even a bishop), the resulting sins committed by the members will be on the heads of their leaders at the time of judgment. This is similar to the idea that if a parent fails to teach their child the correct way, their childπs resulting sins will be on the heads of the parents. Indeed, bishops are often referred to as ≥the fathers of their wards.≤

Because the hierarchy is clearly established, if a member disagrees with a leader or leaders disagree with each other about doctrine or matters that fall under anotherπs authority, the lower ranking party has two options. They can either ignore the conflict or move on to another group. If an actual sin is involved, however, it is appropriate for the member or lower ranking leader to discuss the matter with their bishop.

c. Conflicts Between Members

The leadership never formally hears complaints between members. The bishop may be asked by individuals in a conflict of opinion to give advice, but there is no structured method to deal with these kinds of questions. There is never any monetary penalty against a member. The most that the leadership can require is a full and honest tithe, never a payment directly to another member.

However, there are cases where a member is accused of wrongdoing which involves sin and this claim is brought to the bishop. The bishop is permitted to conduct a small investigation to gather evidence or other information. [29]

If an accusation has been made, the first step is to interview the member accused of misconduct. If the member denies involvement, then the bishop has a right to gather further information to prove or deny the accusation. This is accomplished by assigning two responsible Melchizedek priesthood holders to talk to those who might know and to gather documents that might pertain to the case. [30] These two are not to use methods unbecoming to priesthood holders or that might result in legal action. [31] No electronic surveillance devises, hidden cameras, or tape recorders are to be used. [32] In addition, the investigators are not to maintain a watch on any memberπs house.[33] If enough evidence is gathered to prove the allegations might be true, then a disciplinary council is held if the bishop determines it is appropriate. [34]

VI. Severity of Transgression

There are several commandments or laws given to church members which they must live by. Violations of any law or commandment is considered a transgression and a sin. The degree of severity, however, differs greatly from one thing to another. The more serious a sin, the more likely it is that repentance can only occur fully with the help of a bishop or stake president. For example, if a member violates the Law of Tithing by not paying one tenth of their income, they can repent through personal prayer. However, if a member violates the Law of Chastity by committing a sexual act outside of marriage, they will need to meet with their bishop.

The least serious transgressions are called ≥sins of omission≤ and are seen as stepping stones on the way to worse sins. These include such things as failure to read scriptures daily or failure to pay tithing. Slightly more serious are ≥sins of commission≤ which include things like going out to eat on Sunday or lying.

On the next tier are things like stealing and breaking the Word of Wisdom. Finally, there are the ≥serious transgressions.≤ Members should go to their bishop on matters that are more serious. Confession to the bishop as a part of repentance is discussed in more detail below. Sins that require confession to the bishop are breaking the Word of Wisdom, apostasy, breaking the Law of Chastity, and crimes as defined by the local government.

1. The Word of Wisdom

The Word of Wisdom is a code of healthful conduct which was revealed to Joseph Smith by God in 1833.[35] It is clear that originally, violations of this code were not considered a sin. It was not until after the Saints moved to Utah that it began to be enforced as an actual commandment. The substances that are prohibited include: ≥wine or strong drink,≤ ≥tobacco,≤ and ≥hot drinks.≤[36] However, the Church understands this to prohibit any alcoholic beverage, tobacco of any kind, drug abuse, coffee, and tea (including iced tea). Members differ as to whether caffeinated beverages are permissible. Most members consider the rest of this code advice rather than commandment.

Usually, breaking the Word of Wisdom is not considered a very serious offence. There may be a period of time during which the member is not permitted to attend the temple or perform various priesthood functions. Usually, there is no official probation involved.

2. Apostasy

Part of the basic doctrine of the Church is that Christπs followers slowly lost the truths of the gospel after his crucifixion and the subsequent deaths of his apostles. This is known as the Great Apostasy. However, individual members in the modern Church are also in danger of personal apostasy if they are not steadfast in righteousness. This is more than just unbelief, as the First Presidency made clear in a public statement:

Faithful members of the Church can distinguish between mere differences of opinion and those activities formally defined as apostasy. Apostasy refers to Church members who: å1, repeatedly act in clear, open and deliberate public opposition to the Church or its leaders; or 2, persist in teaching as Church doctrine information that is not Church doctrine after being corrected by their bishops or higher authority; or 3, continue to follow the teachings of apostate cults [ ] after being corrected by their bishops or higher authority.π[37]

By this statement it is clear that apostasy ensues when an individual refuses to stop their wrongful behavior after the leaders have told them to do so. Of particular concern, is the likelihood that they will have an effect on other members or on public perception.

There exists a group called the Strengthening Church Members Committee which reviews all public statements made by church members about the church.[38] Most Latter-day Saints do not know about this group. Reportedly, the committee ≥receives complaints from Church members about other members who have made statements that åconceivably could do harm to the Church.π≤[39] This committee keeps a record of questionable statements in a file and passes ≥the information along to the personπs ecclesiastical leader.≤[40] Documents from this file may be used as evidence in a disciplinary council as they pertain to the case at hand.[41] The committee is just one resource created to discharge the Brethrenπs ≥responsibility to preserve the doctrinal purity of the Church.≤[42]

3. The Law of Chastity

In the Book of Mormon, there is a prophet whose son was guilty of leaving his ministry and committing ≥sexual sin≤ with a prostitute.[43] This prophet indicates that ≥these things are an abomination in the sight of the Lord; yea, most abominable above all sins save it be the shedding of innocent blood or denying the Holy Ghost.≤[44]

The Law of Chastity states that there are to be no sexual relations except with oneπs own husband or wife. This includes behavior that most people in our modern society would not think of as particularly sexual, such as necking. There are varying degrees of seriousness depending on how close to intercourse the individuals were or whether or not they had been to the temple.

Confessing to a bishop about violations of the Law of Chastity are particularly uncomfortable because of the clarification that is necessary for the bishop to know how serious the sin actually is. Basically, an individual cannot simply relate that they have a problem with the Law of Chastity, but have to specifically relate what happened. It is not unusual for the bishop to ask if another member was involved and if so, who it was.[45] To help with the repentance process, the bishop will most likely make an appointment to speak with the other person as well.

4. Denial of the Holy Ghost

The most serious transgression that any person can commit is what is called ≥denying the Holy Ghost.≤ [46] This requires that a person ≥must receive the Holy Ghost, have the heavens opened unto him, and know God and then sin against Him≤ according to Joseph Smith.[47] Denying His existence is also referred to as ≥crucifying Christ anew,≤ or ≥murdering against the light.≤

The result is that the individual receives no glory after this life, but will remain with Satan in Outer Darkness. Those that deny the Holy Ghost are known as the Sons of Perdition. ≥For behold, if ye deny the Holy Ghost when it once has had place in you, and ye know that ye deny it, behold this is a sin which is unpardonable; yea, and whosoever murdereth against the light and knowledge of God, it is not easy for him to obtain forgiveness.≤[48]

Not surprisingly, there is no mention in the General Handbook of Instructions of what a bishop is to do if a member confesses to denial of the Holy Ghost. Given that this sin requires open rebellion against Jesus Christ, it is unlikely that such a person would ever seek to repent.

VII. Repentance

Repentance is mandatory to be cleansed from sin. Christπs prayer in the Garden of Gethsemane and subsequent crucifixion were acts necessary to atone for the sins of the world. Christ thus paid the price demanded by justice for the sins of all who seek to be forgiven by God. Repentance is a process that is repeated throughout oneπs lifetime.

a. Steps to Repentance

Elder Neal A. Maxwell, of the Council of the Twelve Apostles, counsels that there are five requirements for repentance. These are: recognition of the wrong, remorse, confession, forsaking of sinning, and restitution.[49] Elder Richard G. Scott, also of the Twelve, adds a sixth step: ≥Recognition of the Savior.≤[50]

Confession should always be made to God in prayer. [51] Some sins are serious enough to warrant a confession to a bishop. ≥A bishop is the father of the ward, the presiding high priest of the ward, and a common judge in Israel. One of the areas in which he sits in judgment is when he must determine oneπs worthiness to hold office in the Church, to officiate in Church ordinances, to hold temple recommends, etc.≤[52] If another person has been wronged, then confession to that individual is also required. ≥Confessing aids forsaking. We cannot expect to sin publicly and extensively and then expect to be rescued privately and quickly, being beaten åwith only a few stripes.π (D&C 42:88-93.)≤[53]

For example, lying to oneπs neighbor does not require confession to a bishop. However, to make a full and complete repentance, it is expected that the person would tell their neighbor about the lie and apologize for it. To make things completely better, it might be necessary to take other action to make it up to the injured party. This rarely happens for something as minor as a white lie, however.

Confession to the bishop is accomplished by making an appointment to speak with the bishop and going into his office at the church building. During the meeting, a prayer might be offered, and then it is up to the member to tell the bishop why they are there. There is no specific time set aside in the week for bishops to hear confession. Any time a bishop is taking appointments it can be for any matter, be it temple recommend interview, emotional counseling or confession. Therefore, the bishop will probably not know why the individual is there until they tell them.

The matter of actually confessing the sin can be uncomfortable. There is no screen between the bishopπs face and the individual. The two sit on opposite sides of a desk and attempt to speak openly about the problem while still maintaining propriety. In cases of morality issues, this is especially difficult because the bishopπs recommendation and his further action depends on what exactly has been done.

After the confession, the bishop will tell the member what they need to do in order to gain forgiveness or to make restitution as part of repentance. The amount of spiritual knowledge that one has is a key factor for the bishop to determine what must be done to repent of an act. Spiritual knowledge is usually equated with temple attendance. If a member has not been to the temple for the first time yet, they are not expected to live up to the same standards as someone who has.[54]

The bishop has four options: take no action, give an unofficial probation, hold a disciplinary council, or refer the problem to the stake president.[55] If the bishop decides that no action is necessary, he will most likely give some words of guidance so that the member will be able to avoid the problem in the future. The other actions require a little more work.

b. Sins Not Covered by the Atonement

While the Atonement covers most sins committed, there are some which lie beyond its reach. One General Authority pronounced, ≥[C]onditioned on repentance, all of our sins can be forgiven through [Jesusπ] sacred and atoning sacrifice except for what He called åblasphemy against the Holy Ghostπ (Matt. 12:31; [other cite omitted].≤[56] In addition, an apostle taught that ≥shedding of innocent blood≤ cannot be forgiven based on the Atonement alone. [57]

In the case of shedding innocent blood, ≥[o]nly by voluntarily submitting to whatever penalty the Lord may require can that person benefit from the Atonement of Christ.≤[58] ≥Several early Church leaders, most notably Brigham Young, taught that in a complete theocracy the Lord could require the voluntary shedding of a murdererπs blood [ ]as part of the process of Atonement for such grievous sin.≤[59] Blood atonement ≥was based on voluntary submission by an offender.≤[60] However, ≥this doctrine can only operate in a day when there is no separation of Church and State.≤ [61]

Despite the fact that most gatherings of Latter-day Saints in the early days of the church resulted in localized theocracies (especially when the Saints first gathered in Utah), LDSfaq.byu.edu states: ≥Since such a theocracy has not been operative in modern times, the practical effect of the idea was its use as a rhetorical device to heighten the awareness of latter-day Saints of the seriousness of murder and other major sins.≤[62] Noted scholar Bruce R. McConkie indicates that ≥there has been no single instance of so-called blood atonement under any pretext.≤[63] Also, the Church has never been directed by God to adopt this practice ≥at any time in this dispensation.≤[64]

The Prophet Wilford Woodruff, writing to the editors of Illustrated American, indicated that after one is baptized and receives the Holy Ghost, ≥Capital crime committed by such an enlightened person cannot be condoned by the Redeemerπs blood. For him there is åno more sacrifice for sinπ; his life is forfeit, and he only can pay the penalty.≤[65] This apparently suggests that in a society where there is a separation of church and state, capital punishment inflicted by the state, if voluntarily submitted to by the offender, is enough to pay the penalty for murder or other grievous sins.

VIII. Purposes of Disciplinary Councils

Historically called ≥church courts≤ or ≥courts of love,≤ disciplinary councils are conducted by either the bishopric or the stake presidency. The leadership of the church recognized that retribution and punishment are implied by the work ≥court,≤ whereas the point of the church court is actually to rehabilitate and assist in repentance. Therefore, the name was officially changed to reflect the purpose and the attitude of the council.

≤Members sometimes ask why Church disciplinary councils are held. The purpose is threefold: to save the soul of the transgressor, to protect the innocent, and to safeguard the Churchπs purity, integrity, and good name.≤[66] These purposes are accomplished through private counsel and caution, informal probation, formal probation, disfellowshipment, or excommunication.[67]

Bishops have the responsibility to decide if a transgression is serious enough that a member requires official church action in order to repent fully. However, before disfellowshipping or excommunication can occur, the individual is given the chance to explain or defend themselves. This also affords the bishop the chance to reconsider and benefit from the input of his counselors.

Despite the seriousness of a sin, the bishop may decide that a disciplinary council is unnecessary. ≥Since repentance and reformation are the primary objectives of any Church disciplinary action, the bishop may feel that the person has done or is doing everything necessary to repent and that a disciplinary council would serve no useful purpose.≤[68]

Even though bishops are inspired to act in a way that is best for their ward, they can be deceived. Therefore, it is not always possible for them to know if someone has repented. One of the Brethren said, ≥If you could look into the heart of the individual you could tell. Possibly repentance was at the time of confession, but since we donπt know, there must be a time in which the person can demonstrate his repentance through faithfulness to the gospel.≤[69] This can be done through ≥a penalty, a åtime of forsakingπ in which the individual is denied certain church privileges for a period of time.≤[70]

Not only can an individual show their leaders how repentant they are by submitting to this process, but it also helps them gain forgiveness from God. The prophet Spencer W. Kimball taught, ≥It is unthinkable that God absolves serious sins upon a few requests. He is likely to wait until there has been long, sustained repentance.≤[71] The process of excommunication and other church sanctions against an individual are ≥necessary in carrying out true justice.≤[72] Leaders have said that ≥there can be no other wayä≤[73]

IX. When Disciplinary Councils are Convened

While it is ultimately up to the bishop to say if there should be a disciplinary council convened, guidance has been given by the Brethren and in the General Handbook of Instructions. The apostle Russell Ballard, in harmony with the Handbook, specified that

≥disciplinary councils must be held≤ in the following instances: 1) ≥in cases of murder, incest, or apostasy;≤ 2) when the person is ≥a prominent Church leader[,] a predator who may be a threat to other persons,≤ a repeat offender, or ≥guilty of serious deceptive practices;≤ or 3) ≥when a serious transgression is widely known.≤[74]

In the same article, President Ballard indicated that disciplinary councils are not required but may be held in the following instances:

abortion, transsexual operation, attempted murder, rape, forcible sexual abuse, intentionally inflicting serious physical injuries on others, adultery, fornication, homosexual relations, child abuse (sexual or physical), spouse abuse, deliberate abandonment of family responsibilities, robbery, burglary, embezzlement, theft, sale of illegal drugs, fraud, perjury, or false swearing.[75]

Disciplinary councils are never ≥held for such things as failure to pay tithing, to obey the Word of Wisdom, to attend church, or to receive home teachers.≤ [76] They are not used to try civil matters or personal ≥disputes among members.≤ [77] The civil court system of the local government should be used in that case. ≥The decision of a civil court may help determine whether a Church disciplinary council should be convened. However, a civil courtπs decision does not dictate the decision of a disciplinary council.≤[78]

If a member waits for a long period of time before confessing, but their actions show full repentance, no disciplinary council is required.[79] However, members are taught that it is better for a member to be excommunicated ≥with his heart determined to make things right,≤ than to have ≥his membership record intact but carrying deceit in his heart that seem[s] to shout the word hypocrite with every move [ ] toward doing something in the Church.≤[80]

Additionally, ≥members who demand that their names be removed from Church records or who have joined another church≤ are not subject to disciplinary action.[81] This seems contrary to the idea of personal apostasy, but these individuals have, in effect, excommunicated themselves. Perhaps an explanation might be that because they have removed themselves from the group, they are no longer a threat to it.

X. Disciplinary Council Procedure

≥And whosoever repented of their sins and did confess them, them he did number among the people of the church;

≥And those that would not confess their sins and repent of their iniquity, the same were not numbered among the people of the church, and their names were blotted out.≤ Mosiah 26:35-36.

If a bishop would like to conduct a council, he must attain permission from the stake president. This involves giving the name of the individual involved and a brief reason why a council is required.

The bishopric, in consultation with the stake president, has the responsibility and authority to hold disciplinary councils for all ward members. However, if excommunication of a Melchizedek Priesthood holder is thought to be a possibility, the matter is transferred to the stake presidency, who, with the assistance of the high council, may convene a stake disciplinary council.[82]

There are two types of councils that can be heldãa bishopπs court or a high council court. In a bishopπs court, those present include the bishop and his counselors and the ward clerk who acts as a court reporter. The high council court is presided over by the stake president and also includes his counselors and twelve members of the high council. The stake clerk takes notes in a high council court.[83]

a. Bishopπs Council

Disciplinary councils are not very well understood by the general membership of the church. The General Handbook of Instructions contains a section given only to bishops and stake presidents concerning the procedure for a disciplinary council. Most members never see this section of the Handbook. Even though this most members donπt know how a disciplinary council is conducted, the format is not secret.

A disciplinary council held by the bishop involves also his counselors and the ward clerk who acts as a court reporter. ≥Those who sit on the council are to keep everything strictly confidential and to handle the matter in a spirit of love.≤[84]

The individual is invited to bring witnesses for his defense if he wishes. These witnesses would only be called into the room for their testimony and then excused. They are counseled by the bishop before the council begins not to discuss the matter outside of that room. The council is usually conducted at the ward building. [85] Usually, nonmembers are not used as witnesses. [86] There are cases, however, where this would be appropriate. In those cases, the bishop is to explain the purpose and format of the council to the witness to ensure that the witness stays on topic and understands that there are no legal ramifications to the council. [87]

The bishop and the individual who is subjected to the council are allowed to ask questions of any witnesses. [88] However, the bishop has the responsibility to keep the council on track. [89]

Before the council begins, the purpose and procedures are explained to the individual by the presiding officer (either the bishop or stake president). If the member has given consent for his confession to be used as evidence in the court, the presiding officer explains the use of that confession and the possible outcomes of the council.[90]

The council begins with the bishop relating to his counselors the reason for the council. He would state the name of the person subject to church discipline and what they are there for. It is seldom the case that the individual is actually being accused of some wrong. Usually it is the individual themselves who has confessed a sin. However, their confession may not be used in a disciplinary council without their permission. [91] The officer may also explain the procedure if it is necessary.[92]

After this introduction, the individual is brought into the room and is told how the council will proceed. ≥A disciplinary council begins with an opening prayer, followed by a statement of the reason for the council being convened. The member is asked to tell in simple and general terms about the transgression and to explain his or her feelings and what steps of repentance he or she has taken.≤[93]

The bishop will state the case against the individual if the acts described are not admitted by the individual. Then the individual has his chance to either explain or deny the acts or circumstances. [94] If the member denies their guilt, then the presiding officer or another member of the council presents evidence. This can be written or oral statement of witnesses, reliable documents and substance of a memberπs confession if consent has been given. This can be the confession either the subject of the council or another member.[95] Such evidence may include information provided by the Strengthening Church Members Committee. [96]

≥The member may respond to clarifying questions from the leaders.≤[97] Argument and contention are to be avoided. Questions are to be brief and related to the matter at hand. If it is a high council court, high counselors may ask questions in the proceeding. Before ending the council, the stake president will ask the high counselors if they have anything to say.[98]

The member is then allowed to bring a response in the form of witnesses or written comments. Witnesses should be church members, unless a nonmember witness would respect the procedure and confidentiality of the council. Witnesses are to wait in a separate room until it is time for them to give their evidence. they are not to talk with each other either before or after they give their evidence.[99]

When the presentation of evidence and the question have ended, the individual is excused and ≥the leaders counsel together, pray, and reach a decision.≤[100] There are many factors that the leaders consider in deciding what should be done.

The council takes into consideration many factors, such as whether temple or marriage covenants have been violated; whether a position of trust or authority has been abused; the repetition, seriousness, and magnitude of the transgression; the age, maturity, and experience of the transgressor; the interests of innocent victims and innocent family members; the time between transgression and confession; whether or not confession was voluntary; and evidence of repentance.[101]

If counselors have differing opinions, they are to resolve their questions and come to an agreement. If there is not enough evidence to make a decision, the council may seek additional evidence and reconvene the council at a later time.[102]

When a decision has been reached, the council will call the individual back into the room and deliver their decision. [103] The presiding officer will then inform the member of any action that is to be taken and the terms and conditions of such action. Also, the officer will explain how the member may overcome any restriction placed on their membership. Finally, the officer is to explain the personπs right to appeal the decision. ≥An appeal of a decision of a ward disciplinary council goes to the stake presidency and high council. Any further appeals go to the First Presidency.≤[104]

Written notice is also given to the person later.[105] If the member decides not to attend his disciplinary council then it is held without him and a determination is made. The presiding officer then notifies him of the outcome.[106]

b. Stake Presidentπs Council

The disciplinary councils held by a stake president differ only slightly from those held by a bishop. When a stake presidency holds a council, it is conducted by the stake president with his counselors. The stake clerk sits in as court reporter. The biggest difference is that select high council members join as a jury.

High council members draw numbers. Their roles are determined by whether they draw evens or odds. One group is to represent the interests of the church and the other is to protect the interests of the member. This is done in order to follow admonitions in Mormon scripture which command that the council must ≥prevent insult and injustice.≤ Doctrine and Covenants 102:. The member is then admitted into the room and the council begins.[107] It proceeds in the same manner as a Bishopπs council except that High councilmen may also ask questions of the individual, witnesses or other presiding officers.

Before the individual leaves the room, the stake president is to ask if the high councilmen have any questions to ask of the individual. After the individual has left the room to await the decision, the stake presidency deliberates and prays until they feel they have a decision. The stake presidency presents their decision to the high counselors and ask for their sustaining vote. If there is no sustaining, the presiding officer asks what the opposition is. The presiding officer is to seek a consensus. However, if no consensus can be reached, the stake presidentπs decision will stand. A note might be made in the notes from the disciplinary council that there was a dissent.[108]

XI. Disciplinary Action

A council held by the stake presidency has the same options for further action as a bishopπs council does. That is, ≥one of four decisions: (1) no action, (2) formal probation, (3) disfellowshipment, or (4) excommunication.≤[109] The decision to act is made in response to the proceedings of the disciplinary council. It should not be decided beforehand what the outcome will be. ≥General Authorities do not direct the decisions of local disciplinary councils. Furthermore, the right of appeal is open to anyone who feels he or she has been unfairly treated by a disciplinary council.≤[110]

The decision of the council generally is kept confidential. ≥No announcement is ever made when a member is placed on formal probation. Decisions to disfellowship or excommunicate are generally not announced publicly unless the transgression is widely known.≤[111]

a. Unofficial and Official Probation

≥Even if a transgression has been committed, the council may decide to take no action at that time. (The member would be encouraged to receive further counsel from his or her bishop.)≤[112]

If the Bishop decides that unofficial probation is appropriate, he will withhold some of the memberπs privileges. For example, he could determine that the member not be allowed to attend the temple, take the sacrament, or pray in meetings. [113] He will usually also give words of council to further help the member. He may specify a certain amount of time for the probation, after which the member would have to meet with the bishop again to determine if probation should end, continue, or if some other further action is necessary. [114]

This probation would not be noted on the memberπs record. [115] The bishop may take notes and put them temporarily in the memberπs file locally, but once probation is over, the bishop is to destroy the notes. [116]

Official probation differs only in that it generally continues for a longer period of time and a note is placed in the memberπs file until full repentance is made. [117] ≥Formal probation is a temporary state of discipline, imposed as a means to help the member fully repent. The presiding officer of the council specifies the conditions under which the probation can be terminated. During the probation the bishop or stake president keeps in close contact to help the individual progress.≤[118]

b. Disfellowshipment

To be disfellowshipped is to have all of oneπs privileges revoked while membership remains intact. The action does go on the membership record so that when the member moves, the new bishop is aware of what action was taken and how long until their case can be reconsidered.[119] President Ballard explains,

Disfellowshipment is usually temporary, though not necessarily brief. Disfellowshipped persons retain membership in the Church. They are encouraged to attend public Church meetings, but are not entitled to offer public prayers or to give talks. They may not hold a Church positions, take the sacrament, vote in the sustaining of the Church officers, hold a temple recommend, or exercise the priesthood. They may, however, pay tithes and offerings and continue to wear temple garments if endowed.[120]

Disfellowshipped members retain their original ordinances, including baptism and temple ordinances. A disfellowshipped man would still hold the Priesthood, but would not be allowed to exercise it until his disfellowshipment ends.

Disfellowshipment is similar to formal probation, but the requirements for full repentance are pre-determined. The only element left up to the presiding authority to determine is the time period during which the member is to be disfellowshipped. Even though it is up to the bishop, one year is commonly determined to be enough time.

c. Excommunication

≥Excommunication is the most severe judgment a Church disciplinary council can take.≤[121] If an individual is excommunicated, their membership and all other privileges are revoked.[122] This revocation of blessings includes baptism, any ordinance received in the temple, and any office of the Priesthood held (in the case of men).

Excommunicated persons are no longer members of the Church. Therefore, they are denied the privileges of Church membership, including the wearing of temple garments and the payment of tithes and offerings. They may attend public Church meetings, but, like disfellowshipped persons, their participation in such meetings is limited. Excommunicated persons are encouraged to repent and so live as to qualify for eventual baptism.[123]

Generally, a person must wait one year before seeking rebaptism. There is retained a record of the excommunication so that if the individual moves, the bishop in their new area will know when they can be re-baptized. [124]

d. Case Review

≥When members need to have certain blessings withheld, the Lordπs object is to teach as well as to discipline. So probation, disfellowshipment, and excommunication, when they become necessary, are ideally accompanied by eventual reinstatement and restoration of blessings.≤[125] ≥Church disciplinary action in not intended to be the end of the processãrather, it is designed to be the beginning of an opportunity to return to full fellowship and to the full blessings of the Church.≤[126]

After the period for probation or disfellowshipment has passed, a new disciplinary council must be held before a personπs privileges are reinstated. [127] This second disciplinary council is called by the memberπs current bishop or stake president. This is true ≥even if the person is now living in a new ward or stake or if a new bishopric or stake presidency is now serving.≤[128] This will ensure ≥that the person [has made] whatever changes are necessary to return fully and completely [ ].≤ [129]

In the case of excommunication, return to full fellowship requires rebaptism. However, rebaptism does not restore other ordinances. This is accomplished through an ordinance called the ≥restoration of blessings≤ which ≥is a special ordinance performed by a General Authority as directed by the First Presidency.≤ [130] Before these ordinances or ≥blessings≤ are restored by the laying on of hands, the person is generally interviewed by the General Authority sent to perform that ordinance.[131]

After rebaptism, ≥a new membership record is created, showing the original dates of baptism, endowment, sealing, and (if applicable) priesthood ordinationãwith no reference to the excommunication.≤[132]

XII. Conclusion

≥Now we command you, brethren, in the name of our Lord Jesus Christ, that ye withdraw yourselves from every brother that walketh disorderly, and not after the tradition which he received of us.≤ 2 Thessalonians 3:6.

The Church of Jesus Christ of Latter-day Saints teaches that Godπs laws have been revealed through the leaders of the Church. Sin is a violation of these laws and as such is a crime against God and oneself. The process of repentance applies Christπs Atonement to the sinner and the penalty is therefore paid. The pollution caused by the sin is removed. However, there are some sins that cannot be repented of so easily. In these cases, a formal trial system exists to determine what sin has been committed and what the sinner needs to do to be cleansed.

This same system that helps the sinner also helps the group. By ridding itself of members who are unrepentant or involved in serious transgression, the Church is also cleansing itself. The pollutant is removed and the risk of damage to others is contained. In addition, the possibility of excommunication acts as a deterrent for would-be sinners, keeping them within the bounds the Church has set. As members continue to obey the laws given by God through the leaders, the Church is strengthened.

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[1] Lds.org, ≥Top Story≤ Apr. 5, 2005. <http://www.lds.org/newsroom/0,15239,3879-1.00.html>

[2] Adherents.com, ≥Sampling of Latter-Day Saint/Utah Demographics and Social Statistics from National Sources,≤ citing Glenmary Research Center Study: ≥Churches + Church Membership in the United States, 1990.≤ 2000. <http://www.adherents.com/largecom/lds_dem.html>

[3] Adherents.com, ≥Top 10 U.S. States with Most Latter-day Saints, 1990.≤ Oct. 21, 2002. <http://www.adherents.com/largecom/com_lds.html>

[4] To this end, statements made by important leaders are relied upon heavily, while those sources with a negative slant generally have been avoided.

[5] The General Handbook is an important resource for all church leaders. It is comprised of sections appropriate to each auxiliary group (Sunday School, Young Mensπ and Young Womensπ groups, etc.) The section for bishops is not generally shown to other members and therefore its contents may seem mysterious. In reality, it is rather mundane and detail-oriented. There exist illegal publications of the General Handbook which were not used in writing this paper. The information in this paper attributed to the Handbook came from an interview with a member who had been a bishop and wishes to remain anonymous. For this reason, no exact quotes from the Handbook are used unless originally quoted by another source.

[6] Johanson, W.F. Walker. What Is Mormonism All About? Pub. St. Martinπs Press, N.Y. 2002, 199.

[7] Id.

[8] Id at 204.

[9] Tanner, N. Eldon, ≥Fatherhood,≤ Ensign, June 1977, 2.

[10] Romney, Marion G., ≥In the Image of God,≤ Ensign, Mar. 1978, 2. Citing Teachings of the Prophet Joseph Smith, 88-89.

[11] Lee, Harold B., ≥Maintain Your Place As a Woman,≤ Ensign, Feb. 1972, 48.

[12] Tanner at 2.

[13] Faust, James E., ≥Fathers, Mothers, Marriage,≤ Ensign, Aug. 2004, 3.

[14] Doctrine and Covenants 68:25.

[15] Articles of Faith 1:12.

[16] Johanson at 44. Johanson explains the high number of LDS recruits to organizations seeking those ≥who are patriotic, loyal, honest≤ by stating that ≥members of the Mormon faith seem to have those qualifications in higher numbers than their general proportion in the population.≤ Id. A more likely explanation seems to be that Mormons are taught to be unquestioningly obedient to authority and this is what is attractive to these organizations.

[17] Doctrine and CovenantsãDeclaration 1.

[18] Id.

[19] Taylor, Henry D. ≥I Have a Question,≤ Ensign, Feb. 1976, 34.

[20] Id.

[21] Id.

[22] Oaks, Dallin H. ≥Criticism.≤ Ensign, Feb. 1987, 68.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Doctrine and CovenantsãDeclaration 1.

[28] Id.

[29] The General Handbook of Instructions.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Doctrine and Covenants 89, headnotes.

[36] Doctrine and Covenants 89:5-9.

[37] Statement Released by First Presidency and Quorum of the Twelve. ≥News of the Church,≤ Ensign, Jan. 1994, 75. Citing The General Handbook of Instructions, 10-3.

[38] Gregory, Sophfronia Scott. ≥Saints Preserve Us,≤ Time Magazine, June 13, 1994, 65.

[39] Religious News Service. ≥Mormon church keeps files on dissenters,≤ St. Petersburg Times, Aug. 15, 1992, 6E. Quoting Church spokesperson Don Lefevre.

[40] Id.

[41] Mormonwasp.blogspot.com. Butterfield, Justin. ≥Mormon Wasp: The Strengthening church Members Committee.≤ <http:/ /mormonwasp.blogspot.com/2004/12/strengthening-church-members-committee.html>

[42] Statement Released by First Presidency and Quorum of the Twelve. ≥News of the Church,≤ Ensign, Jan. 1994, 75.

[43] The Book of Mormon, headnotes for Alma 39.

[44] The Book of Mormon, Alma 39:5.

[45] The General Handbook of Instructions.

[46] The Book of Mormon, Alma 39:5.

[47] Sammuelson, Cecil O., Jr. ≥Words of Jesus: Forgiveness.≤ Ensign, Feb. 2003, 48. Citing Teachings of the Prophet Joseph Smith, sel. Joseph Fielding Smith (1976), 358.

[48] The Book of Mormon, Alma 39:6.

[49] Maxwell, Neal A. ≥Repentance.≤ Ensign, Nov. 1991, 30.

[50] Scott, Richard G. ≥Finding Forgiveness.≤ Ensign, May 1995, 75.

[51] Sammuelson at 48.

[52] Cullimore, James A. ≥Confession and Forsaking: Elements of Genuine Repentance.≤ Ensign, Dec. 1971, 85.

[53] Maxwell, Neal A. ≥Repentance.≤ Ensign, Nov. 1991, 30.

[54] The General Handbook of Instructions.

[55] Id.

[56] Sammuelson at 48.

[57] Scott, Richard G. ≥Finding Forgiveness.≤ Ensign, May 1995, 75.

[58] Ldsfaq.com. Snow, Lowell M. ≥Blood Atonement.≤ <http:/ /ldsfaq.byu.edu/emmain.asp?number=31>

[59] Id.

[60] Id.

[61] McConkie, Bruce R. ≥Letter to Thomas B. McAffee≤ Oct. 1978. <http:/ /shields-research.org/eneral/blood_atonement.htm>

[62] Ldsfaq.com.

[63] McConkie supra.

[64] Id.

[65] Id.

[66] Ballard, Russell M. ≥A Chance to Start Over: Church Disciplinary Councils and the Restoration of Blessings.≤ Ensign, Sept. 1990, 12.

[67] The General Handbook of Instructions.

[68] Ballard at 12.

[69] Cullimore at 85.

[70] Id.

[71] Quoted by Scott, supra at 75.

[72] Simpson, Robert L. ≥Courts of Love.≤ Ensign, July 1972, 48.

[73] Id.

[74] Ballard at 12.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] The General Handbook of Instructions.

[80] Simpson at 48.

[81] Ballard at 12.

[82] Id.

[83] The General Handbook of Instructions.

[84] Ballard at 12.

[85] The General Handbook of Instructions.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] The General Handbook of Instructions.

[92] Id.

[93] Ballard at 12.

[94] The General Handbook of Instructions.

[95] Id.

[96] Mormonwasp.blogspot.com. Butterfield, supra.

[97] Ballard at 12.

[98] The General Handbook of Instructions.

[99] Id.

[100] Ballard at 12.

[101] Id.

[102] The General Handbook of Instructions.

[103] Id.

[104] Ballard at 12.

[105] The General Handbook of Instructions.

[106] Id

[107] Id.

[108] Id

[109] Ballard at 12.

[110] Statement Released by First Presidency and Quorum of the Twelve.

[111] Ballard at 12.

[112] Id.

[113] The General Handbook of Instructions.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] Ballard at 12.

[119] The General Handbook of Instructions.

[120] Ballard at 12.

[121] Id.

[122] The General Handbook of Instructions.

[123] Ballard at 12.

[124] The General Handbook of Instructions.

[125] Ballard at 12.

[126] Id.

[127] The General Handbook of Instructions.

[128] Ballard at 12.

[129] Id.

[130] Id.

[131] Id.

[132] Id.