The Church of Jesus Christ of Latter-day Saints, more commonly known as the ‘LDS’ or ‘Mormon’ Church, regulates its membership by means of a system that recalls the Old Testament far more than the modern West. All important decisions relating to joining and leaving the church are invested in the inspired discretion of local priesthood authorities who are governed by general standards rather than rules that have the character of law.

¹ See “Priesthood,”Encyclopedia of Mormonism, ed.Daniel,H.Ludlow, 5 vols. (New York:Macmillan,1992) [hereafter cited as EM],3:1137.Google Scholar

²EM, 3:1135–36.Google Scholar

³EM, 3:1136.Google Scholar

⁴ See e.g.John,A. Widtsoe.Priesthood and Church Government in the Church of Jesus Christ of Latter-day Saints. revised edn. (Salt Lake City, UT:Deseret Book,1954),255. Elder Widtsoe was a member of the Quorum of the Twelve from 1921 to 1952.Google Scholar

⁵See e.g. Widtsoe, 262.Google Scholar

⁶EM, 3:1046.Google Scholar

⁷The Doctrine and Covenants of the Church of Jesus Christ of Latter-day Saints (Salt Lake City, UT: The Church of Latter-day Saints, 1989: originally published 1835) [hereinafter cited as D&C], 107:24. On several occasions the President of the church has designated as a counsellor a Melchizedek priesthood holder who is not a member of the Quorum of the Twelve, but this does not reflect current practice.Google Scholar

⁸D&C 107:24 (‘And [the Twelve] form a quorum, equal in authority and power to the [First Presidency]’);Google ScholarGordon,B. Hinkley, ‘The Church is on Course’,The Ensign (111992),53,54 (Although all the apostles hold the keys to the priesthood,‘only the President of the Church has the right to exercise them in their fulness’);‘The Church of Jesus Christ of Latter-day Saints’.EM, 1:278 (‘The Quorum of the Twelve collectively holds in latent form the same priesthood authority as the President of the Church’); see also Widtsoe, 254 (‘The Prophet, Seer, and Revelator to the Church, holds, by virtue of his office, the authority to give to the people the word and will ofthe Lord’). President Hinkley is the current President of the LDS church.Google Scholar

⁹ ‘Organization’,EM, 3:1046; Widtsoe, 244, 249.Google Scholar

¹⁰ SeeD&C 102:11, 107:28;Gordon,B. Hinkley, ‘God Is at the Helm’The Ensign (051994),53,54.Google Scholar

¹¹Hinkley. ‘The Church Is on Course’, 59; Hinkley, ‘God Is at the Helm’, 54, 59.Google Scholar

¹² SeeHinkley, ‘God Is at the Helm’, 59: Hinkley. ‘The Church Is on Course’. 54.Google Scholar

¹³ ‘Organization’,EM, 3:1044.Google Scholar

¹⁴‘The Church of Jesus Christ of Latter-day Saints’, EM, 1:279.Google Scholar

¹⁵Ibid.; ‘Organization’,EM, 3:1048.

¹⁶Ibid.

¹⁷The Pearl of Great Price (Salt Lake City, UT: The Church of Jesus Christ of Latter-day Saints. 1989; originally published 1851) [hereinafter cited as PGP], Articles of Faith 4.Google Scholar

¹⁸See ‘Baptism’,EM, at 1:92–93.Google Scholar

¹⁹D&C 20:72–74.Google Scholar

²⁰ SeeRomans 6:3–6 (King James).Google Scholar

²¹The Book of Mormon: Another Testament of Jesus Christ (Salt Lake City. UT: The Church of Jesus Christ of Latter-day Saints. 1989; originally published 1830) [hereinafter cited asBook of Mormon],Mosiah 18:8–10.Google Scholar

²² SeeD&C 22:1–4; ‘Baptism’,EM, 1:94.Google Scholar

²³ SeePGP, Articles of Faith 2 (‘We believe that men will be punished for their ownsins, and not for Adam's transgression’).Google Scholar

²⁴Book of Mormon, Moroni 8:8,11 (‘[L]ittle children are whole, for they are not capable of committing sin; wherefore the curse of Adam is taken from them in [Christ], that it hath no power over them. [L]ittle children need no repentance, neither baptism’).Google Scholar

²⁵Book of Mormon, Moroni 8:10;D&C 20:71.Google Scholar

²⁶D&C 68:27.Google Scholar

²⁷ ‘Baptism’, inChurch Handbook of Instructions, 2 books. (Salt Lake City, UT: The Church of Jesus Christ of Latter-day Saints, 1998) [hereinafter cited as CH]. 1:26–27.Google Scholar

²⁸ ‘Baptism’,CM 1:26.Google Scholar

²⁹ SeeWidtsoe, 350. See generally ‘Missionary, Missionary Life’.EM, 2:910.Google Scholar

³⁰D&C 20:37. See alsoinfra text accompanying notes 93–97.Google Scholar

³¹‘Baptism’,CH, 1:27.Google Scholar

³² Seeibid. See generallyD&C 68:25–28, 93:40–42.Google Scholar

³³‘Teaching, Baptizing, and Confirming’,CH, 2:252.Google Scholar

³⁴ SeeD&C 20:70 (‘Every member of the church of Christ having children is to bring them unto the elders before the church, who are to lay their hands upon them in the name of Jesus Christ, and bless them in his name’).Google Scholar

³⁵ See ‘Blessings’.EM, 1:129.Google Scholar

³⁶ ‘Membership Records’,CH 1:127.Google Scholar

³⁷Ibid.

³⁸Ibid.

³⁹Teachings of the Prophet Joseph Smith, ed.Smith,Joseph Fielding (Salt Lake City, UT:Deseret Book.1972),199.Google Scholar

⁴⁰ ‘Confirmation’,CH, 1:29.Google Scholar

⁴¹ Seeibid.

⁴²Russell,M. Ballard, ‘A Chance to Start Over: Church Disciplinary Councils and the Restoration of Blessings’,The Ensign (091990),12,14–15.Google Scholar Elder Ballard is currently a member of the Quorum of the Twelve. For a careful study of the theological dimensions and historical development of confession in the LDS church. seeKimball,Edward L, ‘Confession in LDS Doctrine and Practice’,BYU Studies36:2 (1996–1997), 7.Google Scholar

⁴³‘Disciplinary Procedures’,EM, 1:386. The scriptural foundation for disciplinary councils isD&C 102. For a succinct history and insightful analysis of LDS disciplinary councils and their predecessors, ‘church courts’,Google Scholar seeAugustine-Adams,Kif. ‘The Web of Membership: The Consonance and Conflict of Being American and Latter-day Saint’,Journal of Law and ReligionXIII:2 (1998–1999), 567. 577–95.Google Scholar

⁴⁴ ‘Formal Church Discipline’,CH, 1:94.Google Scholar

⁴⁵ ‘Disciplinary Procedures’,EM, 1;386–87. The basic procedures for a stake disciplinary council are set forth inD&C 102. A somewhat dated description of the procedures for a bishop's disciplinary council is found in Widtsoe, 215–222. A more current (but less authoritative) description of procedures for a bishop's disciplinary council found inLester,E. BushJr, ‘Excommunication and Church Courts: A Note From the General Handbook of Instruction’,Dialogue: A Journal of Mormon Thought14:2 (Summer1981), 74, 88–93.Google Scholar

⁴⁶See e.g.D&C? 102:18.Google Scholar

⁴⁷D&C 102:15–17.Google Scholar

⁴⁸See Augustine-Adams, 589; see also Bush, ‘Excommunication’, 95 (‘Within the church judicial SYSTEM, the procedural subtleties are of little consequence in comparison to the personal judgment and “inspiration” of the presiding authority’).Google Scholar

⁴⁹This is not to deny that secular legal norms may sometimes exert some subtle presure on the presiding officer's exercise of discretion. The determination what constitutes ‘fair’ procedure, for example, is obviously influenced by norms of procedural fairness reflected in the legal SYSTEM of the country in which the disciplinary council is being held. Thus, a presiding officer of a disciplinary council held in a country whose legal SYSTEM values procedural due process of law may be more solicitous of the procedural interests of the accused in a disciplinary council than a presiding officer in a country lacking such a due process tradition. Nevertheless, there is no occasion for a presiding officer formally to consider the applicability of secular law in a disciplinary council, be it procedural or substantive.Google Scholar

⁵⁰See Bush.‘Excommunication’, 89–92.Google Scholar

⁵¹D&C 102:19.Google Scholar

⁵²Ibid.

⁵³D&C 134:10–11.Google Scholar

⁵⁴‘Disciplinary Councils’,CH,1:97.Google Scholar

⁵⁵Ibid.

⁵⁶Ballard. 16.Google Scholar

⁵⁷‘Formal Church Discipline’,CH, 1:94.Google Scholar

⁵⁸Ibid.

⁵⁹Ibid.

⁶⁰Ibid.

⁶¹Widtsoe, 19.Google Scholar

⁶²‘Formal Church Discipline’,CH, 1:94.Google Scholar

⁶³‘Disciplinary Procedures’,EM, 1:387.Google Scholar

⁶⁴‘Formal Church Discipline’,CH, 1:95.Google Scholar

⁶⁵Bush, ‘Excommunication’, 93.Google Scholar

⁶⁶See e.g.Book of Mormon, 3 Nephi 18:28–32.Google Scholar

⁶⁷See e.g.Widtsoe, 208: Members who have been disfellowshipped or excommunicated should not be avoided or persecuted by the membership of the Church. On the contrary. they should be dealt with kindly and prayerfully, in the hope that they may turn from their mistakes, and receive again the full privileges of Church membership. Every effort should be made to show love to such persons, so that they may be encouraged to live so as to merit, again, the full privileges of the Church’.Google Scholar

⁶⁸Widtsoe, 190–91.Google Scholar

⁶⁹D&C 102:27.Google Scholar

⁷⁰‘Removing Names from Church Records’,CH, 1:130.Google Scholar

⁷¹Ibid.

⁷²Ibid.

⁷³Ibid.

⁷⁴Ibid.

⁷⁵Ibid.

⁷⁶Ibid.

⁷⁷Ibid.

⁷⁸‘Ending Formal Probation. Disfellowshipment. or Excommunication’.CH, 1:104.Google Scholar

⁷⁹Ibid.

⁸⁰See Lester E.Bush, ‘Ethical Issues in Reproductive Medicine: A Mormon Perspective’,Dialogue: A Journal of Mormon Thought 18:2 (Summer 1985), 40, 58.Google Scholar

⁸¹See, e.g., R. Jan Stout, ‘Sin and Sexuality: Psychobiology and the Development of Homosexuality’,Dialogue: A Journal of Mormon Thought 20:2 (summer 1987) 29.37 (referencing case of genetically female pseudohermaphrodite who received hormol therapy and a hysterectomy, and eventually was ordained to the priesthood and married as a male, apparently without church objection).Google Scholar

⁸² Bush, ‘Ethical Issues’, 58 (quoting ‘The Church Judicial SYSTEM’, replacement ch.8, p.2 [10.1980], toThe General Handbook of Instructions [Salt Lake City, UT:The Church of Latter-day Saints,1976]); see also Bush. ‘Excommunication’, 87 (noting that the 1980 Handbook announced the ‘most extensive handbook proscriptions to date’ in relation to ‘transsexual surgery’).Google Scholar

⁸³For example, the modifier ‘elective’ has been added to the statement of the policy, impliedly suggesting that some sex change operations are permissible under the policy, such as those that resolve the sex of persons born with biologically ambiguous genitalia. Cf.Bush, ‘Ethical Issues’, 59 n.9 (noting the need for such an exception to the older restrictive policy, at least as applied to children). Additionally, excommunication is no longer mandated even for elective sex change operations, and those excommunicated for having undergone elective operations are not permanently excommunicated, although rebaptism of such persons does require approval of the First Presidency. SeeCH, 1:26–27.Google Scholar

⁸⁴CH. 1:66.Google Scholar

⁸⁵ For a survey of statements by church leaders in this regard,seeKeller,Jeffrey E., ‘Question: Is Sexual Gender Eternal?’,Sunstone (071986),38.Google Scholar

⁸⁶ The First Presidency and the Twelve,“The Proclamation on the Family”,The Ensign (11.1995), at102, avaliable at <http://www.Ids.org/library/display/0.4945.161_1_11_1.00.html> (last visited 10 7.2002).+(last+visited+10+7.2002).>Google Scholar

⁸⁷See e.g., ‘Recommends to Enter a Temple’,CH, 1:66 (members who undergo elective sex-change operations are barred from LDS temples, though not from normal weekly worship services); ‘Disciplinary Councils’,CH, 1:96 (noting that the church advises against elective sex-change operations, and that undergoing such a procedure may subject a member to church discipline); ‘Policies on Moral Issues’,CH 1:159 (condemning homosexual behaviour as violative of divine commandment, inconsistent with the purpose of human sexuality, and distortive of loving relationships). The special theological significance of sexual identy and gender also manifests itself in affirmation by LDS leader of traditional, gender-specific roles and personality traits, and condemnation of relatively benign unisex phenomena, such the mimicking of other-sex fashions.Google Scholar See, e.g.,Kimball,Spencer W.,The Teaching of SpencerKimbull,W., edKimball,Edward L. (Salt Lake City,UT: Bookcraft,1982), 274 (“Some people are ignorant or vicious and apparently [are] attempting to destroy the concept of masculinity and femininity. More and more girls dress, groom, and act like men.More and more men dress, groom, and act like women. The high purpose of life are damaged and destroyed by the growing unisex theory. God made man and women in his own image, male and female made he them. with relatively few accidents of nature, we are born male or female. The Lord knew best. Certainly, men and women who would change their sex status will answer to their Maker.”). President Kimball was the president of the LDS church from 1973 to 1985.Google Scholar

⁸⁸See, Ballard, 16.Google Scholar

⁸⁹Ibid: Widtsoe, 191.

⁹⁰Ballard, 16.Google Scholar

⁹¹See ‘Baptism’,CH, 1:26 (Specifying,inter alia, mission president authorisation for baptism of such a person).Google Scholar

⁹²See ‘Disciplinary Councils’,CH, 1:96 (specifying that a disciplinary council is mandatory when a member holding a prominent shurch position has committed a serious and deliberate moral transgression, such as attempted murder, rape, forcible sexual abuse, spouse abuse, adultery, robbery, embezzlement or fraud, and that excommunication may be necessary when transgressions by such a member have damaged the good name of the church in the community where the transgressions occurred).Google Scholar

⁹³E.g. ‘Baptism’,CH. 1:26; see also ‘Disciplinary Councils’,CH, 1:99.Google Scholar

⁹⁴See Missionary Guide: Training for Missionaries 234–35 (Salt Lake City, UT: The Church of Jesus Christ of Latter-day Saints, 1988),available at <http://www.Ids4u.com/Discussions/Interview.htm> (last visited October 7. 2002).+(last+visited+October+7.+2002).>Google Scholar

⁹⁵‘Baptism’,CH, 1:27.Google Scholar

⁹⁶ ‘Baptism’,Ibid. 1:26–27. LDS theology provides that one may not be forgive for the sin of murder: see e.g.D&C, 42:18, which is defined as the deliberate, unjustified taking of human life, ‘Formal Church Discipline’,CH, 1:95. Accordingly, a baptismal candidate who has been convicted of or who has publicly of privately confessed to having committed murder must have the approval of the First Presidency before being baptised: ‘Baptism’,CH, 1:27. The significance of sexual identity and gender in LDS theology is discussedsupra in the text accompanying notes 79–87. A baptismal candidate who has undergone an elective sex-change operation or who has been involved in homosexual transgressions must have the approval of the full-time mission president before being baptised, and candidates contemplating a sex-change procedure are not to be baptised. ‘Baptism’,CH, 1:26, LDS theology generally condemns abortion as a sin comparable to murder, and specifies that members may undergo abortions only when it is evident that the foetus will not survive birth or when the pregnancy has resulted from rape or incest, threatens the life of the mother, or presents a serious threat to the health of the mother. Accordingly those who have been implicated in an abortion are required to obtain approval of the mission president before being baptised. See ‘Abortion’,CH, 1:157.

⁹⁷See ‘Baptism’,CH, 20:37.D&C 20:37 reads in pertinent part: ‘All those who humble themselves before God, and desire to be baptized, and come with broken hearts andcontrite sprits, and witness before the church that they have truly repented of all their sins, and are willing to take upon them the name of Jesus Christ, having a determination to serve him to the end, and truly manifest by their words that they have received the Sprit of Christ unto theremission of their sins, shall be received by baptism into his church’.Google Scholar

⁹⁸Bush, ‘Excommunication’, 78.Google Scholar

⁹⁹‘Formal Church Discipline’,CH, 1:95–96: see also ‘Disciplinary Procedures’,EM. 1:386. ‘Apostasy’ is defined as (i)repeated actions which indicate one' intentional, public opposition to the Church and its leaders, (ii)Persistence in teaching false doctrine despite having been corrected by church leaders, or (iii) continuing to follow the teachings of ‘apostate sects’—notably those that practice or advocate polygamy—despite having been advised to the contrary by church leaders: ‘Formal Church Discipline’,CH, 1:95–96; see James E. Faust, ‘Keeping Covenants and Honoring Priesthood’,The Ensign (November 1993), 36, 38 (‘Those men and women who persist in publicly challenging basic doctrines, practices, and establishment [sic] of the Church sever themselves from the Spirit of the Lord and forfeit their tight to place and influence in the Church’). President Faust is currently a member of the First Presidency.Google Scholar

¹⁰⁰‘Formal Church Discipline’,CH, 1:95. Additionally, the First Presidency has instructed local leaders that in cases of incest, child abuse, apostasy, serious transgression while holding a prominent church position, elective sex-change surgery, or embezzlement of church funds, a disciplinary council may not impose formal probation as a sanction, but must either disfellowship or excommunicate the transgressor.Google Scholar

¹⁰¹‘Formal Church Discipline’,CH, 1:99.Google Scholar

¹⁰² Augustine-Adams, 592; see also at 591 (noting that the ‘lack of procedure and formal representation and the mixing of roles’ in disciplinary councils is sometimes criticised as ‘undermining their fairness’):Bush,Lester E.Jr, ‘Excommunication: Church Courts in Mormon History’,Sunstone (07/081983).24,29 (noting a ‘wide and very unSYSTEMatic variation in the convening of church courts and the penalties imposed on transgressors’).Google Scholar

¹⁰³Augustine-Adams, 588.Google Scholar

¹⁰⁴ See e.g.Pollock,Frederick,Jurisprudence and Legal Essays, ed.Goodhart,A. L. (New York:St. Martin's,1961),20 (‘[T]he normal and necessary marks, in a civilised commonwealth of justice administered according to law, [are] Generality, Equality, and Certainty’).Google Scholar See generallyFletcher,George P.,Basic Concepts of Legal Thought (New York:Oxford University Press,1996), ch.1.Google Scholar

¹⁰⁵ Cf. Augustine-Adams, 588 (‘Latter-day Saint disciplinary councils entertain questions of individual transgressions, not questions of church doctrine’);Ibid. 591 (noting the ‘individual rather than precedent setting nature of Latter-day Saint ecclesiastical discipline’); Bush, 95 (‘[W]ithin the church judicial SYSTEM, the procedural subtleties are of little consequence in comparison to the judgments and “inspiration’ of the presiding authority”).

¹⁰⁶Cf.Hart,H.L.A.,The Concept of Law (Oxford:Oxford University Press,1961),127 (contrasting ‘the need for certain rules which can, over great areas of conduct, safely be applied by private individuals to themselves without fresh official guidance or weighing up of social issues’, with ‘the need to leave open for later settlement by an informed official choice, issues which can only be properly appreciated and settled when they arise in concrete situations’).Google Scholar

¹⁰⁷Deuteronomy 16:18 (King James).Google Scholar

¹⁰⁸2 Chronicles 19:6–7 (King James).Google Scholar

¹⁰⁹Jackson,Bernard S., ‘Legalism and Spirituality: Historical, Philosophical, and Semiotic Notes on Legislators, Adjudicators, and Subjects’, inReligion and Law: Biblical-Judaic and Ismail Perspectives, ed.Firmage,Edwin B.,Weiss,Bernard G. andWelch,John W. (Winona Lake,IN: Eisenbrauns,1990),243,245.Google Scholar

¹¹⁰ Jackson. 245, 260. Karl Llwellyn argued that this approach to judging properly plays a part in Anglo-American common law SYSTEMs, thought it has become controversial in our formalist age. SeeLlewellyn,Karl N.,The Common Law Tradition: Deciding Appeals (Boston: Little, Brown,1960),120–128 (noting that particular situation suggest their own internal ‘law’ that requires vindication of one ligitant's interest even in the face of a countrary legal rule).Google Scholar

¹¹¹D&C 107:72.Google Scholar

¹¹²D&C 58:18.Google Scholar