Guest post: Church disciplinary councils are not courts of law

This is a guest post by Daniel Ortner, who blogs at

As I recently read Kate Kelly’s letter to her Bishop as well as the “legal brief” submitted on her behalf by Nadine Hansen. As a current law student, my immediate first reaction was to attempt to write a reply brief critical of the arguments advanced therein. Yet, as I thought about the possibility of doing so, I realized how inappropriate such an approach would be in the Church.

I was reminded of Bruce C. Hafen’s timeless warning from a talk entitled On Dealing with Uncertainty:

I found myself wanting to tell our third-year law students that those who take too much delight in their finely honed tools of skepticism and dispassionate analysis will limit their effectiveness, in the church and elsewhere, because they can become contentious, standoffish, arrogant, and unwilling to commit themselves. I have seen some of these try out their new intellectual tools in some context like a priesthood quorum or a Sunday School class. A well-meaning teacher will make a point they think is a little silly, and they will feel an irresistible urge to leap to their feet and pop the teacher’s bubble. If they are successful, they begin looking for other opportunities to point out the exception to any rule anybody can state. They begin to delight in cross-examination of the unsuspecting, just looking for somebody’s bubble up there floating around so that they can pop it with their shiny new pin of skepticism. And in all that, they fail to realize that when some of those bubbles pop, out goes the air, and with it goes much of the feeling of trust, loyalty, harmony, and sincerity so essential to preserving the Spirit of the Lord.

If that begins to happen in your ward, in your home, or in your marriage, you will have begun to destroy the fragile fabric of trust that binds us together in all loving relationships. People may come away from some of their encounters with you wondering how you can possibly have a deep commitment to the Church and do some of the things you do.

Unfortunately, I saw many of the symptoms that Elder Hafen warned of as I read Nadine’s brief.

In it, I saw a total unwillingness to acknowledge any fault or wrong, a willingness to search for any possible ambiguities in language and wording, and attacks upon the motives and propriety of church leaders.

Such an attitude is absolutely vital in the court of law. An advocate would be engaging in malpractice were he not to zealously advance such arguments on behalf of his client. Our adversarial system depends on sides being vigorously defended. As a legal system, we have fully embraced the notion that such conflict and contrast will best result in truth.

Our church on the other hand is dedicated to a far different system. It is dedicated to the notion that inspiration rather than agitation or argumentation is what carries the day. It is not he who makes the most logical argument by stringing citations, but he speaks for the lord when moved by the holy spirit.

We learn in the scriptures that the spirit flees contention. If we are dedicated to finding fault in others and never admitting our mistakes, we cannot have the spirit to be with us. Thus, the same approach that held to bring about truth in courts of law cannot do so in disciplinary councils. When we covenant at baptism and in the holy temple to consecrate our lives to Jesus Christ and his church, we forsake the adversarial approach and commit to being humble, meek and full of love. The natural man whom we are commanded to put off thrives on pride and contention. The child of God seeks to be a humble peacemaker.

In the church, we give Bishops and Stake Presidents and immense responsibility. President Hinckley correctly described it as “a fearsome and awesome responsibility.” Nadine’s brief suggests that the system is inherently stacked against women, because an appeal to the Stake President will likewise we clouded with bias and prejudgment. It takes great faith in the power of God and his priesthood to see that this is not so. It takes a great deal of faith to trust that these imperfect men will be guided by the spirit of the Lord. It takes great faith to believe as President Packer noted that “the mantle is far, far greater than the intellect, that the priesthood is the guiding power.” It takes faith to accept that even though the Bishop is responsible for bringing about disciplinary hearings, that he is not to be seen as the opposing counsel or the opposition, but a fellow seeker of truth. Yet, this is exactly the faith we commit ourselves to having when we sustain our leaders.

As I served as a missionary, I saw the hand of the Lord work to inspire my Mission President. Before going to serve as a Mission President, he had worked as an actual judge in Utah. He had also practiced law for many years. As he started his mission, he at first relied upon his intellect to attempt to determine who should be called as missionary leaders, and what the priorities of the mission should be. He quickly came to realize that it wasn’t his mission and that the Lord was in charge. The Lord knew the needs of members and missionaries. He know how to organize his work to bring to pass the immortality and eternal life of man. The mantle was far greater than the intellect could ever be.

I am not Kate’s bishop. I do not know her heart. I am saddened, however, that instead of seeing the disciplinary council as a chance to speak candidly with one called as a pastor in Israel, she has chosen to see it as an example of persecution and patriarchy. Her choice not to attend despite many offers of aid evidences this. I am sorry to see the process played out through angry op-eds as opposed to spiritual dialogue.

Above all, I pray that those sitting in council will by led by the spirit. I pray likewise, that Kate and others will be touched by that spirit and draw closer to the Lord.

19 thoughts on “Guest post: Church disciplinary councils are not courts of law

  1. Great post.

    An interesting point going forward will be finding that space wherein we can tell truth in a manner that doesn’t banish the spirit of the Lord.

  2. Amen to that! This is the Lord’s work and his church. He is in charge. I also hope that Kate and others in her situation can see that, and stop kicking against the pricks.

  3. Thank you for this. I especially appreciate this, considering you are a lawyer in training and understand the legal aspect of this more than most. It also reminds me of the scripture in Isaiah 55:8-9 … my ways are not thy ways …. We have to remember that.

  4. Well said. What has bothered me from the beginning of this back and forth is the legalistic, adversarial approach taken by OW. That alone calls for church discipline of some kind. The members of the church who want intellect to triumph over inspiration and revelation fail to grasp essentials of how the church works and moves forward.

  5. The excitement of staging vigils and appealing through media coverage seem to be somewhat effective in heightening the drama. Deferring will probably defuse it, the camp followers and news media lose interest in celebrity and get bored.

    Flash in the pan?

  6. I’m very confident that those conducting the discipline councils/courts have sought and will seek the will of the Lord, and do their best to implement His will.

    I am not privvy to the mind of the Lord in this matter. But this is the Bloggernacle after all, and we do a lot of speculatin’ and pontificatin’ ’round here. So here goes… My bet/guess/hunch is that if the coucils are held, JD and KK will be disfellowshipped. This will give them room to further consider their situation, and if they choose, to even dig themselves deeper. (Though it’s hard for me to imagine KK digging herself any deeper without digging completely through and coming out on the other side.)

    Since JD/KK will likely publicize any action taken, the disfellowshipment will serve to inform other members that JD/KK have crossed a boundary, and that will hopefully stave off them further deceiving members. If JJ/KK don’t publicize it, and continue on their present course, then excommunication remains a future option.

  7. While approaching the disciplinary council as a court of law is not how it is “usually done” the Handbook certainly provides for that approach with its detailed instructions on venue, appeal process, and sins for which mandatory punishments exist.

    The “brief” (not Sister Kelly’s letter) is rather well written and points out several significant irregularities that have occurred in the process. (Also note her past Bishop is an attorney and understands this type of approach.) In my opinion (which doesn’t count for anything at all in the matter) this situation could have, and should have, been dealt with very differently a long time ago. Sister Kelly did reach out to her then Bishop and Stake President several times over the past year with no real response. While the ultimate fate of the website in question probably would not change if those conversations had occurred the reputation of the Church and the integrity of the process would have been well served.

    I think both the Church and Sister Kelly would have done well to read and re-read the 1936 response of Joseph Fielding Smith, soon to become President of the
    Quorum of the Twelve which he wrote to Belle S. Spafford, new Relief Society General President, and her counselors, Marianne G. Sharp and Gertrude R. Garff regarding a question about the ability of women to anoint with oil and give blessings:
    “While the authorities of the Church have ruled that it is permissible, under
    certain conditions and with the approval of the priesthood, for sisters to wash
    and anoint other sisters, yet they feel that it is far better for us to follow the
    plan the Lord has given us and send for the Elders of the Church to come and
    administer to the sick and afflicted” (Clark 4:314)” — note it is simply “far better” to call the elders, it is not that women can not do this, or that they do not have the authority to do so.

    Also note that it took approximately 100 years for the Church to fully come around to the idea that priesthood offices and administrations were restricted solely to men. The conversation about the relationship between women and priesthood is needed – if only to allow the Church to explain its position (as we have seen in the last General Conference). Sister Kelly’s methods are certainly not what the Church’s Leaders would have liked, but she has illuminated a topic of discussion which needs further clarity and enlightenment which can only come through the Church’s Leaders.

  8. I think I remember a post by KK on fMh where she discusses a meeting she had with her bishop or stake president, how she wasn’t being disciplined, how he seemed supportive, etc. However, that is the version she gave. I think now she might have put that spin on it because there were some sisters who were shaky about whether to participate in the Temple Square events. The post seemed to give the impression that all was well, that active support of OW and it’s events would not be considered grounds for discipline. I haven’t bothered to read the “brief” or KK’s letter. Both of them are nonsense in terms of disciplinary councils. I don’t know enough about the chronology of efforts to contact her in her home ward and stake. My impression of the disciplinary proceedings is fairness to the member in the sense of notice and the opportunity to appear and discuss the allegations of misconduct. If I were to guess, based on the way KK has used the media, I would say she purposefully planned her exodus from Vienna to stymie the council and prolong the whole process. Even if she didn’t, I think she had plenty of opportunity to appear and respond. Instead, she has done a good job of playing “the victim.”

  9. Thank you Meg Stout, I got the years mixed up. 1946 is even more interesting.

  10. By the way, Kate Kelly has announced that she’s been informed she has been excommunicated. As the letter stated, excommunication usually lasts for at least a year, and terms for her to be readmitted were laid out.

  11. Daniel, I liked the direction you went with this post. Very thoughtful. I have no doubt you will make a great attorney. I also checked out your website. Wow. Your conversion story post moved me. I loved the tone and insightfulness of the posts I have read on your blog so far. I wish non-snarky, non-p.c.-imposing, intelligent, challenging-yet-faith-insoiring blogs like yours and websites like M* made up the bulk of the “bloggernacle.” They really do make a difference. Thanks!

  12. Cidget007 I really appreciate your supportive comments. It is really hard to find the right balance of tone when blogging on issues that are deeply divisive and controversial. I can not say that I always succeed, but it is something I try to be very conscious of whenever I wrote a post.

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