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Mark Beesley

Excommunication Vs. Resignation

53 posts in this topic

Well no. Not in Oklahoma, anyway (see my summary of the Hadnot case, supra).

Thanks,

-Smac

Only if there is already a disciplinary counsel in progress.

For example: if I resign my membership the church cannot excommunicate because I resigned and if they find out I committed an excommunicateable offense after my resignation they still cannot excommunicate me.

Edited by Saints Alive
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When I left the Church nearly eight years ago (about five years prior to my return), I had read on a website, I believe it was exmormon.org, mentions of a legal case involving another religious organization in which it was determined that someone could directly revoke their own membership. In line with this, in my letter of resignation I declared that I was no longer a member and asked that this be recognized by the removal of my name from the church records.

That said, it didn't feel fully real to me until the letter from Gregory Dodge of the Membership department came to inform me that my name had been removed.

I can also tell you that if someone who has resigned decides to come back to the Church, the Church regards them as having been a member until their official name removal. The person will be asked about their lifestyle while out of the Church, but particularly about their lifestyle before their name removal was completed.

Don

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One thing that seems to be missing in this discussion is the idea that excommunication should be looked at as part of the repentance process at opposed to being a punitive action.

Can it only be one or the other and not both? I don't understand what you're saying if you're saying the former?

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Only if there is already a disciplinary counsel in progress.

Well, sorta. Hadnot generally refers to disciplinary proceedings in general, not the council specifically. "The church may take such steps as are reasonable to protect itself and to complete the process occasioned by the withdrawal or other termination of the consensual relationship with a member."

"The process" would appear to include disciplinary proceedings at any stage, including pre-disciplinary council stuff.

In any event, what legal theory would you advance in this situation? What theory of liability exists to impose a punishment on a bunch of men sitting around talking about an acquaintance of theirs?

For example: if I resign my membership the church cannot excommunicate because I resigned and if they find out I committed an excommunicateable offense after my resignation they still cannot excommunicate me.

Perhaps. But perhaps not. If the excommunicable offense was, say, sexual abuse of a child, and if the Church pursued a post-resignation censure to clarify the former member's actions while a member of the Church, I don't think you could do anything to stop that.

Again, what legal theory do you have in mind? What cause of action?

Thanks,

-Smac

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I can also tell you that if someone who has resigned decides to come back to the Church, the Church regards them as having been a member until their official name removal. The person will be asked about their lifestyle while out of the Church, but particularly about their lifestyle before their name removal was completed.

Interesting. It is like how a divorce is treated...one shouldn't date even if all that is left is the paperwork to be finalized.
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Logically, and legally, the moment you inform ANY representative of the Church that you resign your membership you are legally and officially no longer a member. You can't be kicked out of an organization you don't belong to. And then there is the whole slander issue.

1. A request for name removal has to be submitted in writing before a resignation can be considered valid.

2. The normal waiting period for said request to termination of membership is 30 days, which can be waived under certain circumstances.

3. If there is serious transgression involved, a report is submitted that annotates your record before the removal.

4. The name is removed from the general Church rolls but there still is a record of the report.

5. Should the person ever apply for readmission to membership in future, a bishop can deny readmission until sincere repentance is in evidence. Generally, proceedings that were put on hold by name removal are reinitiated on a request for readmission. So, it is possible for a disciplinary council to be held after one makes effort at readmission--even years down the road.

6. I have been shown this by someone whom I know, who is in a position to know the details.

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1. A request for name removal has to be submitted in writing before a resignation can be considered valid.

2. The normal waiting period for said request to termination of membership is 30 days, which can be waived under certain circumstances.

3. If there is serious transgression involved, a report is submitted that annotates your record before the removal.

4. The name is removed from the general Church rolls but there still is a record of the report.

5. Should the person ever apply for readmission to membership in future, a bishop can deny readmission until sincere repentance is in evidence. Generally, proceedings that were put on hold by name removal are reinitiated on a request for readmission. So, it is possible for a disciplinary council to be held after one makes effort at readmission--even years down the road.

6. I have been shown this by someone whom I know, who is in a position to know the details.

That's the church's rules.

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1. A request for name removal has to be submitted in writing before a resignation can be considered valid.

2. The normal waiting period for said request to termination of membership is 30 days, which can be waived under certain circumstances.

3. If there is serious transgression involved, a report is submitted that annotates your record before the removal.

4. The name is removed from the general Church rolls but there still is a record of the report.

5. Should the person ever apply for readmission to membership in future, a bishop can deny readmission until sincere repentance is in evidence. Generally, proceedings that were put on hold by name removal are reinitiated on a request for readmission. So, it is possible for a disciplinary council to be held after one makes effort at readmission--even years down the road.

6. I have been shown this by someone whom I know, who is in a position to know the details.

It's been a while since I had access to Handbook I (last August) but that sounds right based on what I had read and my experience as a stake clerk. Well, I can't vouch for item 6 but the others sound right!

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Now here is where it gets interesting:

"The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction which was valid when exercised — i.e., that it was declared when Church jurisdiction subsisted."

In other words, if the LDS Church commences disciplinary proceedings, its right to continue those proceedings, and its right to enjoy the constitutional protections associated described above, then the individual cannot short circuit those proceedings by resigning.

That's not what this is saying at all. This says once the church has excommunicated someone they can implement a previously determined sanction "which was valid when exercised.— i.e., that it was declared when Church jurisdiction subsisted." In other words, since the the individuals involved were members during the excommunication process (i.e. Church jurisdiction subsisted) the church can implement the ecclesiastical sanction. If the plaintiffs had withdrawn their membership prior to their church court the following would apply:

At the point when the church-member relationship is severed through an affirmative act either of a parishioner's withdrawal or of excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal ..., the absolute privilege from tort liability no longer attaches."

In other words if the church proceeds with excommunication proceedings after the member has withdrawn, the "absolute privilege from tort liability no longer attaches." Can the church proceed with the excommunication? Sure. They are just subject to potential tort liability. That's why in practice the church stops discipline proceedings when the name withdrawal request is received.

Edited by SeekingUnderstanding
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That's not what this is saying at all. This says once the church has excommunicated someone they can implement a previously determined sanction "which was valid when exercised.— i.e., that it was declared when Church jurisdiction subsisted." In other words, since the the individuals involved were members during the excommunication process (i.e. Church jurisdiction subsisted) the church can implement the ecclesiastical sanction. If the plaintiffs had withdrawn their membership prior to their church court the following would apply:

I disagree with your interpretation. Here's why:

"The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction which was valid when exercised — i.e., that it was declared when Church jurisdiction subsisted."

And this:

"Within the concept of protected implementation are not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction."

Meanwhile, I am still waiting for someone to present a cognizable legal theory which could be asserted against the LDS Church if it continues with a disciplinary council after someone attempts to circumvent that council by resigning.

In other words if the church proceeds with excommunication proceedings after the member has withdrawn, the "absolute privilege from tort liability no longer attaches."

You are disregarding the excerpts above about "protected implementation" of "previously pronounced ecclesiastical sanction."

But even if the absolute privilege doesn't apply, are there any qualified privileges which may apply? And again, what theories of liability are available? I hear a lot of talk about potential tort liability, but nobody is specifying the tort(s). Which one(s)?

Can the church proceed with the excommunication? Sure. They are just subject to potential tort liability.

You are disregarding the Hadnot language about "activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction" being protected.

That's why in practice the church stops discipline proceedings when the name withdrawal request is received.

Perhaps. Since the net effect, spiritually and doctrinally, of a resignation is apparently no different from ane excommunication, I think the Church's policy is wise because it avoids potential legal entanglements, even those it could win.

But I'm not sure it's a hard and fast policy. If the Church commences disciplinary proceedings against a person for certain serious offenses (perhaps involving violence or sexual abuse), then I think the Church may want to create "a record" in case the person ever attempts to re-join the Church. For example, a person who has sexually abused a child may want to short circuit disciplinary proceedings by resigning before a pending diciplinary council takes place. In such circumstances, I think the Church would be wise to set aside the normal policy allowing such resignations to take effect, and to instead proceed with the disciplinary council. This would allow the church leaders in the future to be aware of all of the circumstances of the previous dissociation, and to take such things into account when considering whether to let that person re-join the Church or attend or otherwise participate in Church meetings and activities.

Thanks,

-Smac

Edited by smac97
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Okay, here's the skinny:

Thanks for the info smac. (Sometimes I really miss having access to Westlaw and Lexis.) Anyway, I think your analysis is solid.

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Thanks for the info smac. (Sometimes I really miss having access to Westlaw and Lexis.) Anyway, I think your analysis is solid.

As an FYI: Most college libraries these days have a subscription to "LexisNexis Academic." It's a pared down version of the subscription site for Lexis. It lacks hyperlinked headnotes, and many of the hyperlinks to secondary sources embedded in case law and statutory annotations are dead. However, it's still a tremendous resources for those interested in legal research. You can typically access it for free if you are on campus. And off-campus connections are also available if you have a student ID and password.

Thanks,

-Smac

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I disagree with your interpretation. Here's why:

"The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction which was valid when exercised — i.e., that it was declared when Church jurisdiction subsisted."

And this:

"Within the concept of protected implementation are not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction."

I also disagree. The suit was about the distress that occurred from the receipt of the expulsion letter. The expulsion letter contained information on the disciplinary proceeding's merits and procedure as well as the end result: expulsion. The court is merely saying that once excommunication occurs the church is free to follow its procedures and sanction the individual. The plaintiffs were upset that the letters listing the charges brought against them was delivered. Again the court explicitly stated that all these things were occurring after the excommunication: "The church privilege extends in this case to activities or communications which occurred after excommunication." I guess we'll have to agree to see this differently.

Meanwhile, I am still waiting for someone to present a cognizable legal theory which could be asserted against the LDS Church if it continues with a disciplinary council after someone attempts to circumvent that council by resigning.

For the case of slander of libel, the individual would have to prove that the claims of the church court were both false and damaging. Based on what I read of the Hancock suit, it appeared that he might have a case (again only getting the one side). The church obviously didn't think it was worth taking that case to court and so settled. I think in the vast majority of cases no tort could be won, but why open yourself to that kind of scrutiny (i.e. discovery, potential liability etc).

Perhaps. Since the net effect, spiritually and doctrinally, of a resignation is apparently no different from ane excommunication, I think the Church's policy is wise because it avoids potential legal entanglements, even those it could win.

But I'm not sure it's a hard and fast policy. If the Church commences disciplinary proceedings against a person for certain serious offenses (perhaps involving violence or sexual abuse), then I think the Church may want to create "a record" in case the person ever attempts to re-join the Church. For example, a person who has sexually abused a child may want to short circuit disciplinary proceedings by resigning before a pending diciplinary council takes place. In such circumstances, I think the Church would be wise to set aside the normal policy allowing such resignations to take effect, and to instead proceed with the disciplinary council. This would allow the church leaders in the future to be aware of all of the circumstances of the previous dissociation, and to take such things into account when considering whether to let that person re-join the Church or attend or otherwise participate in Church meetings and activities.

Thanks,

-Smac

I think the policy is hard and fast. I believe the church has the ability to note the fact that the individual was facing church discipline and why on the name removal form. This should be able to address the concerns surrounding re-baptism.

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I am not an attorney but here is my take. Once you have expressed your desire to leave the church, by the first amendment you are no longer a member of the church (at least as determined by the OK court). Since you are no longer a member, any church court action could be subject to libel / slander concerns. While results of disciplinary councils are not widely published, they are communicated to the 15+ people who participate in the hearing, ward councils, PEC's, and bishoprics. If you live in a highly mormon community this could have a real impact on your relationships.

By this reasons, in principle, then, a person may commit all sorts of crimes in the U.S., and may avoid prosecution by denouncing his or her citizenship.

Thanks, -Wade Englund-

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By this reasons, in principle, then, a person may commit all sorts of crimes in the U.S., and may avoid prosecution by denouncing his or her citizenship.

Thanks, -Wade Englund-

Not sure that I follow at all. Care to elaborate? The church is not a state entity. In fact the first amendment expressly forbids the state from interfering with the internal affairs of the church. The affairs of the church cease to be internal when the church is taking action against a non member. A member can become a non member by formally requesting it. Once someone is a nonmember, the church can still act, but its actions are not immune to civil review.

How is this similar at all to committing "all sorts of crimes" and then denouncing your citizenship???

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Not sure that I follow at all. Care to elaborate? The church is not a state entity.

In fact the first amendment expressly forbids the state from interfering with the internal affairs of the church. The affairs of the church cease to be internal when the church is taking action against a non member. A member can become a non member by formally requesting it. Once someone is a nonmember, the church can still act, but its actions are not immune to civil review.

How is this similar at all to committing "all sorts of crimes" and then denouncing your citizenship???

Upon rereading your earlier post, I evidently didn't read it carefully or correctly, and so it is understandable that you would be confused by my response.

The intent of my analogy was to make the point (or convey the principle) that any entity (of any kind) may have a valid reason to take disciplinary action against a member in spite of whether a member resigns first or not.

Granted, the nature of religious disciplinary action, and how it unfolds, is not beyond the purview of the state (a church who deems a member to be a witch is not legally permitted to burn him/her at the stake)--as you suggest, However, this is a matter that is somewhat beyond the specific question of the thread. The cases cited in this thread do not prevent Churches from excommunicating its members, even post resignation. They merely put legal limits on how the excommunications may be carried out.

Thanks, -Wade Englund-

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The suit was about the distress that occurred from the receipt of the expulsion letter. The expulsion letter contained information on the disciplinary proceeding's merits and procedure as well as the end result: expulsion. The court is merely saying that once excommunication occurs the church is free to follow its procedures and sanction the individual.

I disagree. The Court is talking about "protected implementation" of "not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction." The process leading up to excommunication is protected just as much as the "end product" of excommunication itself.

The plaintiffs were upset that the letters listing the charges brought against them was delivered. Again the court explicitly stated that all these things were occurring after the excommunication: "The church privilege extends in this case to activities or communications which occurred after excommunication." I guess we'll have to agree to see this differently.

The Hadnot decision did not address just the event of excommunication, but the process leading up to it.

For the case of slander of libel, the individual would have to prove that the claims of the church court were both false and damaging. Based on what I read of the Hancock suit, it appeared that he might have a case (again only getting the one side). The church obviously didn't think it was worth taking that case to court and so settled. I think in the vast majority of cases no tort could be won, but why open yourself to that kind of scrutiny (i.e. discovery, potential liability etc).

First, I don't think there would be a claim for libel, as the Church does not publish the contents of a disciplinary proceedings to third parties in writing.

Second, I don't think a disciplinary proceeding would constitute "slander," either, as the participants would all be at a disciplinary council in their capacities as agents of the Church. Consequently, no communication to third parties, and hence no slander. The other problem is proving falsity of the communications, or that there is an invasion of privacy claim where the person voluntarily associated with the Church.

I think the policy is hard and fast. I believe the church has the ability to note the fact that the individual was facing church discipline and why on the name removal form. This should be able to address the concerns surrounding re-baptism.

I have had some experience indicating that the policy is not hard and fast. But I shan't elaborate.

Thanks,

-Smac

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I disagree. The Court is talking about "protected implementation" of "not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction." The process leading up to excommunication is protected just as much as the "end product" of excommunication itself.

Here is the quote from your link:

The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction which was valid when exercised — i.e., that it was declared when Church jurisdiction subsisted. Within the concept of protected implementation are not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction.

Lets parse it. The Church privilege applies to activities after excommunication if they are merely an implementation of a previously pronounced sanction. Again they explicitly are talking about activities after excommunication. However the activities after are only allowed if they are merely an implementation of a previously pronounced sanction. So some sanction must have already been issued as part of the excommunication.

The court goes on to clarify what could be viewed as "protected implementation" of the excommunication or previously pronounced sanction. It states that not only are merits and procedure of the disciplinary proceeding (which must have already occurred - note the words after and previously pronounced above) protected but also the end product - i.e. expulsion. Again in order to be a protected implementation, the excommunication or previously pronounced sanction must have already occurred. Again the plaintiffs were upset that the reason (i.e. the merits of the previously announced sanction) for there excommunication was given in a letter. The court does not say that once a church decides that they want to convene a court (the decision to convene a court is not a "sanction" or an "excommunication") they can go ahead and proceed in a protected fashion if the member withdraws membership. Again the justices explicitly note that the plaintiffs maintained their membership throughout the disciplinary process:

Parishioners admit that at no time during or after the proceedings at issue did they withdraw their Church membership. Thus the Church retained full subject matterand personal jurisdiction to adjudicate the two disciplinary cases against the parishioners.

The Hadnot decision did not address just the event of excommunication, but the process leading up to it.

This is just not true. As quoted above it mentions that the plaintiffs maintained their membership throughout. The implementation part you keep quoting only applies "after" excommunication (or a previously pronounced sanction). The court says the following as well:

That relationship may be severed freely by a member's positive act at any time. Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state.

This would imply that once the member positively severs membership, the church disciplinary ordinances are subject to state law.

First, I don't think there would be a claim for libel, as the Church does not publish the contents of a disciplinary proceedings to third parties in writing.

Second, I don't think a disciplinary proceeding would constitute "slander," either, as the participants would all be at a disciplinary council in their capacities as agents of the Church. Consequently, no communication to third parties, and hence no slander. The other problem is proving falsity of the communications, or that there is an invasion of privacy claim where the person voluntarily associated with the Church.

I agree it would be a tough fight. I could envision scenarios where people were not as discrete as they should be and real harm could be done. Again the onus is on the individual to prove the statement is false, and prove that real damage was done. Not likely to be successful.

I have had some experience indicating that the policy is not hard and fast. But I shan't elaborate.

Thanks,

-Smac

Interesting. I have very limited experience in these things, so I will defer to your experience here.

Edited by SeekingUnderstanding
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The intent of my analogy was to make the point (or convey the principle) that any entity (of any kind) may have a valid reason to take disciplinary action against a member in spite of whether a member resigns first or not.

Never thought of this before, but I suppose it's possible my old stake could have held some sort of disciplinary action against me after I submitted my letter of resignation (I became a member of Mars Hill Church several months prior to submitting my resignation, so maybe they'd have grounds to do so by their definitions).

If such a thing happened, is there a way to find out? (Not that I'm prepared to spend any significant time on the question.)

--Erik

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If such a thing happened, is there a way to find out? (Not that I'm prepared to spend any significant time on the question.)

--Erik

I suppose if you were concerned about it you could have your local ward contact Salt Lake, other than that the only way to know would be to start the rebaptism process.

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Never thought of this before, but I suppose it's possible my old stake could have held some sort of disciplinary action against me after I submitted my letter of resignation (I became a member of Mars Hill Church several months prior to submitting my resignation, so maybe they'd have grounds to do so by their definitions).

If such a thing happened, is there a way to find out? (Not that I'm prepared to spend any significant time on the question.)

--Erik

I don't know what policy or policies the Church of Jesus Christ of Latter-day Saints had in effect at the time you joined another church, but I do know that joining another church is not grounds for excommunication now.

P.S.: Cute avatar, by the way. Did you contribute to the gene pool? ;)

Edited by Kenngo1969
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joining another church is not grounds for excommunication
Attending one....no, but are you sure that becoming an official member of another church isn't? I was sure that it was. Not that it is followed through with in most cases probably.... Edited by calmoriah
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I know it was in the 2006 CHI, not 100% sure about the new version. I would think becoming an official member of another religion would be grounds for excommunication for apostasy at the very least.

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I don't know what policy or policies the Church of Jesus Christ of Latter-day Saints had in effect at the time you joined another church, but I do know that joining another church is not grounds for excommunication now.

P.S.: Cute avatar, by the way. Did you contribute to the gene pool? ;)

His name is Titus. And he's discovered his feet!

:0)

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He is adorable...

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