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Excommunication Vs. Resignation

Legalities vs. Mythology

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#21 smac97

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Posted 08 April 2013 - 02:33 PM

We see, from time to time, assertions about what the Church can or cannot do when someone requests excommunication.

If a persons writes a letter requesting that their name be removed from the records of the Church, it is asserted, the Church must act on that request and cannot hold a disciplinary council to excommunicate that person.

I would like to know if anyone can provide a citation to any court case where the Church has been subject to either an injunction or money damages for holding a disciplinary council following receipt of a letter of resignation.

You can offer your own legal opinions if you would like, but I really would like to see some published authority . . . either a trial level memorandum of decision, or an appellate court decision.

What the Church does in practice may not necessarily be compelled by law. It may simply be a courtesy.

And remember, the answer to the following question is always yes: Can I sue?

The relevant question is always, Will I win?


I looked into this a few years ago. My conclusion was that the LDS Church would probably be allowed to proceed with an excommunication if the process was started before the resignation letter.

I also think that the Church would prevail even if this wasn't the case, because A) the plaintiff in such a case would need to be able to show "damages," and the Church conducting a private meeting where a person's status relative to the Church is discussed probably doesn't create cognizable legal injury; and B) the contrary position (that the government can regulate what can and cannot be said during the Church's ecclesiastical meetings) raises all sorts of First Amendment issues.

I'm busy now, but I'll try to get back to this later.

Thanks,

-Smac
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#22 SeekingUnderstanding

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Posted 08 April 2013 - 02:40 PM

1 Yes you can. May be the discipline ,ie the excommuncation, wont hurt as much but you can still discipline them.


This is true, but the excommunication is not exempt anymore under the first amendment (and hence is much more open to lawsuits).
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#23 Saints Alive

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Posted 08 April 2013 - 05:53 PM

2 You cannot logically argue this. At the very least they kicked the person out as he was leaving. Why could both not be done at the same time?


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.
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#24 smac97

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Posted 08 April 2013 - 06:22 PM

Okay, here's the skinny:

1. Guinn was decided in 1989 by the Oklahoma Supreme Court. Here's a link to the text of that decision.

2. Guinn involved claims for the torts of "outrage" and "invasion of privacy" That is, the First Amendment did not protect the speech of the church in that case, thus letting Guinn sue under these theories.

3. The behavior of the church elders in Guinn would pretty much never be replicated in an LDS context (since disciplinary hearings are not publicized, and are not conducted in an "outrageous" manner). So those tort theories would not be available. I am hard-pressed to think of a tort theory which would be available where a person filed suit over an LDS disciplinary hearing.

4. Guinn has limited applicability, as it is only precedent in Oklahoma and it applied to a set of facts which, as noted above, would probably not be replicated in the LDS context. Moreover, a subsequent decision, also from the Supreme Court of Oklahoma, addresses the same general issue but involving claims against the LDS Church. This case, Hadnot v. Shaw, is therefore substantially more "on point" that Guinn. Here is a link to the Hadnot case.

5. In Hadnot, the Oklahoma Supreme Court specifically addressed whether the Guinn case applied to the following facts:


A. The plaintiffs were sisters and were formerly members of the LDS Church in Chickasha, Oklahoma.


B. The defendants were the Church, the bishop and his counselors.


C. Parishioners were each notified of and asked to be present at a Church disciplinary hearing called to determine their membership status. Neither attended. Following the hearing both parishioners received letters from the Church. The letter addressed to parishioner Hadnot was placed in her mailbox. This letter, which was opened and read by her husband, informed parishioner that the Church court determined her membership should be terminated because of her alleged fornication. The other sister was personally handed a letter also signed by a lay leader, which informed her of the Church court's decision to remove her from membership.


D. The sisters filed suit, apparently for "harm from wilful or grossly negligent delivery of the expulsion letters to parishioners" based on "(a) libel, (b) intentional or negligent infliction of emotional distress and © invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public)"; and "harm from communicating the letters' contents to the public" based on "(a) slander, (b) intentional or negligent infliction of emotional distress and © invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public)."


E. Summary judgment was granted in favor of the defendants.


F. One significant factual difference is that the Church in Guinn believed that a church member did not have the right to dissociate from it ("According to their beliefs, a member remains a part of the congregation for life. Like those who are born into a family, they may leave but they can never really sever the familial bond.). This is a radical, even dispositive, distinction between the situation in Guinn compared to the beliefs and practices of the LDS Church.


6. The Oklahoma Supreme Court specifically found that "the trial court correctly applied Guinn." Here are the specific excerpts of the decision, with commentary from yours truly:

"The church's jurisdiction exists as a result of the mutual agreement between that body and its member," and "(t)hat relationship may be severed freely by a member's positive act at any time."

I agree with this principle wholeheartedly.

"Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state."

I agree with this principle wholeheartedly.

"The First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority."

I agree with this finding, and am grateful for it.

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.

"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."

In other words, the Church has the right to get to the "end product" of a disciplinary proceeding, and to do so without surrendering its constitutional protections.

"While excommunication would put an end to jurisdiction over any further offense, it does not abrogate the consequences flowing from the previously announced Church judicature."

Well said, Okies, well said.

"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 matter and personal jurisdiction to adjudicate the two disciplinary cases against the parishioners. Upon excommunication, and while a parishioner remains under the church discipline, the ecclesiastical tribunal impliedly relinquishes the power of judicature over the parishioner for any other or future conduct, yet retains cognizance over the previously adjudicated matter for the purpose of implementing any extent ecclesiastical sanction."

I wish I could write like this.

The Court then shifts gears a bit:

"Sovereign only within her own domain, the church has no power over those who live outside of the spiritual community. The church may not be forced to tolerate as a member one whom it feels obliged to expel from its flock. On the other hand, no citizen of the state may be compelled to remain in a church which his conscience impels him to leave."

I quite agree with this reasoning.

"The Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking — its merits as well as procedure."

This is generally referred to as the "Ecclesiastical Abstention" doctrine.

"In sum, if a matter lies within ecclesiastical cognizance, the church stands protected from any interference by the Free Exercise Clause. If it oversteps proper bounds, it will run afoul of the Establishment Clause insofar as its use of the state power may be in furtherance of a religious cause. As stated in Prince v. Commonwealth, '... religious activities which concern only members of the faith are and ought to be free — as nearly absolutely free as anything can be.'"

Just so.

"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 or of post-excommunication activity unrelated to the church's efforts at effectuation of valid judicature, the absolute privilege from tort liability no longer attaches."

Pretty clear, I think.

"Any action at this point, if it is to be protected, must be justified by others means. Under these circumstances conditional privileges may be applicable. 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."

'Nuff said.

Hadnot rather clearly establishes what would happen if Guinn is applied in an LDS context. That is, the Church and its SOP for disciplinary proceedings would be in safe waters.

Thanks,

-Smac
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#25 smac97

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Posted 08 April 2013 - 06:24 PM

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.


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

Thanks,

-Smac
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#26 Saints Alive

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Posted 08 April 2013 - 06:32 PM

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, 08 April 2013 - 06:35 PM.

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#27 DonBradley

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Posted 08 April 2013 - 06:33 PM

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.

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#28 urroner

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Posted 08 April 2013 - 06:46 PM

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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#29 smac97

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Posted 08 April 2013 - 06:57 PM

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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#30 calmoriah

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Posted 08 April 2013 - 07:03 PM

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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#31 MormonMason

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Posted 08 April 2013 - 07:12 PM

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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#32 Saints Alive

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Posted 09 April 2013 - 05:40 AM

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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#33 dgd

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Posted 09 April 2013 - 07:16 AM

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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#34 SeekingUnderstanding

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Posted 09 April 2013 - 07:51 AM

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, 09 April 2013 - 07:53 AM.

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#35 smac97

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Posted 09 April 2013 - 09:06 AM

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, 09 April 2013 - 09:14 AM.

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#36 Mark Beesley

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Posted 09 April 2013 - 09:20 AM

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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#37 smac97

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Posted 09 April 2013 - 09:25 AM

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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#38 SeekingUnderstanding

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Posted 09 April 2013 - 12:16 PM

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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#39 wenglund

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Posted 09 April 2013 - 12:39 PM

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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#40 SeekingUnderstanding

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Posted 09 April 2013 - 12:48 PM

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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