"Behold Here is Wisdom": Church Corporate Structure as a Shield and a Protection for the Church

Every few weeks I come across someone who is a member of the LDS Church and is complaining about the corporate structure of the Church. They complain that the Church is too corporate, too focused on money, too focused on things that have nothing to do with the gospel. Currently these criticisms typically focus on the City Creek Center in downtown Salt Lake City. Despite the fact that the Church has not used tithing funds to build it, and despite all the good it is doing in providing jobs, city beautification, and a healthy living and shopping space, the criticism continues. The critics use the City Creek Center as evidence that the Church has gone out of the way and is no longer focused on salvation and truth but is a corporate entity that has displaced the true Church and now is only interested in self preservation and the accumulation of wealth.

Whenever these complaints are aired those who are make the complaints seem to have at the root of their dissatisfaction the fact that legally the Church is organized as a corporation with the sole owner of the corporation being the president of the Church. Occasionally they express the desire to see a more democratic and distributed structure to the Church so that they do not have to be in the "suffocating corporate structure" that stifles free thought and "the more interesting doctrines of the Church".

 One Church dissident (no I will not provide a link to his blog) asserted a few months ago that the Church had caved to the desires of the world and had lost its special status in 1830 when the Church organized as a legal entity. In his post this particular Church dissident stated that up until 1829 Joseph Smith had the true church, pure and undefiled, but in 1830, under the pressure of those around him he caved and gave obeisance to the god of Mammon and organized it according to the laws of man and money and not according to the laws of God. Since then the Church has been in the wilderness and only the true believers are part of the true church.

Other Church dissident are not as extreme, but others still choose some other point in Church history where the general Church has gone out of the way and lost the imprimatur of the "true church". Some do not choose a point in time but say that there has been a gentle drift into worldliness. Regardless of the time this group of people make the case that the official, legal institution known as The Church of Jesus Christ of Latter-day Saints is not the "true church" and that in fact the "true church" is laboring under the weight of corporate bureaucracy that is becoming a suffocating appendage to the group of people they consider to be the "true believers".

So what would happen if these critics got everything they wanted and the entire corporate structure of the Church was done away with? Perhaps if we look at other churches that do not have such restrictions then we can get a sense of what would happen to the Church if we got rid of its corporate structure that they hate so much. There is a blog that I follow called Religion Clause that posts about all the legal cases in the United States that deal with religion in any way. Mostly it is boring legal stuff but occasionally there are interesting cases that illustrate many of the issues facing churches in America today. One issue that came up recently dealt with a court case in Colorado where a dissident group of a church was suing to remove the pastor from his position.

On the one hand the appeals court ruled "that a state trial court judge acted improperly when he issued an order allowing police to remove a pastor from his pulpit." The improper action came about because the lower court "made a decision regarding ecclesiastical internal governance and organization; it determined for the church who represented its interest, a governing decision belonging only to the church." The initial ruling given by the lower court essentially gave the government the power to decide who should be in control of the church, its property, and its organization, but the appeals court said that the courts could not make that determination. As stated in the blog post, "the Court of Appeals said that ownership of the church's property should be determined by the trial court through an examination of deeds, articles of incorporation, bylaws and other documents."

This is to say that the only criteria that the courts can use to determine who owns what when it comes to a dispute over property owned by a church is the documents that clearly set up the structure and organization of the church, including which names appear on the deeds. Thus if a church is to have real property, such as a chapel, or printing press to print scriptures, then they must have someone, or some legal entity, that holds the deeds and controls the bank accounts so that it can do the work of the church.

Without a centralized church structure there are several churches today in America that are running into the problem of what to do with dissident groups (or in some cases church leadership that does not listen to nor care what their congregation wants). These problems have resulted in several court cases over the past few years where different groups are suing for control of church property. There is a full spectrum of cases where entire congregations are leaving a larger church organization and they are losing their place of worship in the process to where larger church organizations are losing significant amounts of property and resources when local groups break away. This creates a great drain on the churches ability to continue their more important calling of proclaiming the gospel. These problems are endemic in almost all of the major churches in America today.

When I read about all of these problems I am reminded of the fact that these problems are (virtually) nonexistent in the LDS Church. The reason why these types of problems never happen in the LDS Church is because of the way the Church is organized. I don't mean how the priesthood and Church leadership is set up (though that also plays a role), but in the way the Church is organized as a legal entity. The fact that all property is held under either the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints or Corporation of The President of The Church of Jesus Christ of Latter-Day Saints effectively prevents these types of disputes commonly found in other denominations from even becoming a question that must be asked, let alone a problem that must be resolved in court. The Church is not without its own legal challenges, but these are not challenges that arise from within, and it is the way the Church is set up as a legal entity that protects it from the types of problems found in other churches.

To put it very plainly, the very corporate structure that critics, both inside and outside the Church, find so distasteful is the very thing that protects the Church from schism, property disputes and wasteful contention that would prevent the Church from fulfilling its mission. In perhaps a bit of irony that is lost on them, the same critics insist that the Church should only focus on proclaiming the gospel and helping the poor, criticize the Church for being too corporate. Yet the very corporate structure that they are criticizing is the very thing that allows the Church to do what they want it to do.

This brings to mind the instruction given to Sidney Gilbert before he moved to Missouri to establish Zion as recorded in Doctrine and Covenants 57:8-10 (emphasis added).

8 And again, verily I say unto you, let my servant Sidney Gilbert plant himself in this place, and establish a store, that he may sell goods without fraud, that he may obtain money to buy lands for the good of the saints, and that he may obtain whatsoever things the disciples may need to plant them in their inheritance.
9 And also let my servant Sidney Gilbert obtain a license—behold here is wisdom, and whoso readeth let him understand—that he may send goods also unto the people, even by whom he will as clerks employed in his service;
10 And thus provide for my saints, that my gospel may be preached unto those who sit in darkness and in the region and shadow of death.

There is a purpose to the things that the Lord commands His Church. Previously I wrote on my blog and asked the question "Do we still have the United Order?" and concluded that we still have the United Order, though it is now known by a different name. Regardless of the name the purpose is to provide for the saints (provide jobs, beautify their city and prevent urban decay as in the case of the City Creek Center) so that the "gospel may be preached unto those who sit in darkness and in the region and shadow of death."

I find it interesting that and just a tad ironic that some of the critics of the legal entity that is the Church would also proclaim their great desire to live under the United Order, yet they criticize the current iteration of the United Order and proclaim it to be a manifestation of how the Church has gone out of the way. They proclaim that if they had lived in the days of the United Order they would gladly live under it, but when they are presented with it today, they build and garnish its sepulcher.

The organization and structure of the Church are to be done according to the laws of the country ("obtain a license") and set up in such a way that the work can progress so that all things can be done in wisdom. There is wisdom in how the Church is set up as a legal entity. It protects the Church from the same problems that are tearing apart other churches and is proving their downfall.

SLC Non-Discrimination Ordinance

Recently there have been a number of news stories (Deseret News, AZCentral) relating to the recent passing of a set of non-discrimination ordinances (pdf) regarding discrimination against people in Salt Lake City because of sexual orientation or gender identity (SLC City Code 10.04 and 10.05). What was also notable about the incident was that The Church of Jesus Christ of Latter-day Saints also expressed their support for the city ordinances because, "they are fair and reasonable and do not do violence to the institution of marriage."

So what is it about how these city ordinances are written that would bring official recognition and acceptance from the Church? Also after reading several comments posted after the news stories there were a number of concerns raised by people concerned with the implications of the new city ordinance. So what were the main concerns and how do these city ordinance address them?

Effectively these ordinances make it illegal to discriminate against someone in terms of employment and housing based on sexual orientation or gender identity. It establishes a procedure for filing complaints and resolving disputes that may arise due to allegations of discrimination. These city ordinances are in addition to the previous ordinances regarding discrimination based on race, gender, religion or country of origin.

In relation to these ordinances some of the main concerns that people voiced in the online forums were:

1. If I have a small basement apartment that I am renting out, will this force me to rent it out to a homosexual couple?

2. Will this force religious book stores, such as Deseret Book, to hire cross dressers?

3. If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination?

4. If I am single and living in an apartment with other single people, does this mean that a gay couple can move in to my apartment and I (and my landlord) can't do anything about it? As in, we can't object?

So how do these two city ordinances address these concerns, if at all?

First let us look at the exceptions provided. Both religious organizations and "expressive organizations" (such as the Boy Scouts of America) are expressly exempt from these city ordinances. While that solves some of the potential problems it does not address any of the above concerns. It turns out that the first three objections are addressed and the fourth may be addressed depending on how certain language is interpreted.

1. In this objection the concern is that under this ordinance a family living in their own home will be forced to rent out a basement apartment to a homosexual couple. This is expressly addressed in the exceptions. Effectively the ordinance exempts small privately owned apartments such as basement apartments because in order for the ordinance to apply you must,

"own an interest in or title to four or more single-family dwellings held for lease or sale at one time, and are located inside the City....[sell] two or more single-family dwellings inside the City, and in which the owner did not reside in the dwelling within the 24-month period preceding the sale or rental of the dwelling....use the service or facilities of any real estate broker, agent, or salesperson, or of any person in the business of selling or renting dwellings."

It also further specifies that owners are exempt if, "The rental of a dwelling that is occupied or intended to be occupied by no more than four families living independently of each other, when the owner actually maintains and occupies part of the dwelling as a residence."

That takes care of the first objection.

2. Will this force religious book stores, such as Deseret Book, to hire cross dressers? In terms of hiring practices the ordinance stipulates that employees must adhere to "reasonable rules and regulations and other job related qualifications required by an employer." This would include a dress code (no pun intended). There are also other provisions to accommodate for positions where "sexual orientation or gender identity are bona fide occupational qualifications for employment."

3. If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination? The concern here is that this city ordinance will create a special protected class of citizens that will be able and willing to sue at the drop of a hat, and that the major employers and landlords of the city will be open to all kinds of lawsuits for discrimination. This concern is addressed in its own section.

"This chapter does not create a private cause of action, nor does it create any right or remedy that is the same or substantially equivalent to the remedies provided under federal or state law. This chapter does not create any special rights or privileges which would not be available to all of the City’s citizens because every person has a sexual orientation and a gender identity."

This section is particularly interesting in that it prohibits a "private cause of action". This phrase is a technical legal phrase with a specific meaning, and with interpretations related to several supreme court cases. From Wikipedia, "Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law. Implied causes of action arising under the Constitution of the United States are treated differently than those based on statutes."

In other words, if there were a private or implied cause of action then someone could bring a lawsuit against someone else even if there is no law expressly allowing it, i.e. there is no law expressly prohibiting the actions of the person being sued. What this means for the SLC ordinance is that someone cannot bring a lawsuit against someone else under violations of this city ordinance. The only way legal action can be brought under this city ordinance is through the complaint and arbitration provisions provided under the ordinance.

So in answer to the question, If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination? No. They can file a complaint which will then be investigated, but they cannot sue. Also this section in the city ordinance makes another interesting point. Even though it does not explicitly say it it implies that sexual orientation and gender identity is not a civil right, nor is it open to the same protections guaranteed to any other civil right protected by the Constitution or by law.

4. The last objection is not expressly covered in the city ordinance but depending on how a certain sentence is interpreted it may be. That sentence (in context) says,

"This chapter does not apply to a temporary or permanent residence facility operated by a nonprofit organization; a charitable organization; or a person in conjunction with a religious organization, association, or society, including any dormitory operated by a public or private educational institution, if the discrimination is based on sexual orientation or gender identity for reasons of personal modesty or privacy or in the furtherance of a religious organization’s sincerely held religious beliefs."

The key phrase here is "for reasons of personal modesty or privacy". While in context this may be a rather qualified statement, it may apply in most situations of concern where someone, or even a group of people, feel that they have a reasonable expectation of modesty and privacy. Thus in cases of college dorms and other comparable housing units, under this ordinance the tenants may insist on a having a reasonable expectation of modesty and privacy. In other words, in an apartment that can allow six single students, four of the residents can object to a homosexual couple moving in and the landlord can agree and not allow the gay couple to keep their contracts. As I said, this particular situation may not be covered by the city ordinance depending on how the language is interpreted. Still any major concerns may be covered under the section that explicitly prohibits the creation of a special protected class of citizens. As the code states, "This chapter does not create any special rights or privileges which would not be available to all of the City’s citizens". In other words, they will be treated like everyone else.

So while the non-discrimination ordinance allows for the basic, "common sense" rights associated with human dignity, it does not create a special, privileged class of people that have access to more rights, protections or remedies than others. It guarantees that homosexuals will be treated with fairness and equality, just like everyone else, while at the same time preserving the rights to religion and expression that all other people have. In other words, this city ordinance does not establish the rights and freedoms of one group of people by infringing on the rights and freedoms of another group of people.

President Obama and Constitutional Law

Lately a lot of media focus has been on President Obama's policies. There is constant talk regarding the policies he endorses, or does not endorse and whether or not he will push his "agenda" through Congress effectively, as past presidents have done (or failed to do). In the past some presidents have presented whole pieces of legislation (pre-written) to Congress for their vote. But that does not seem to be the case with President Obama. As has been noted by both critics and supporters alike President Obama tends to talk about broad political issues but rarely about specifics.

This approach to presidential leadership has been noticed and has been alternately ridiculed by the opposing side and questioned by those of his own party. Some liberal commentators have wondered why the President does not take a more active role in writing legislation, and why he seems to leave it all up to Congress. Again, the President's opponents use this as a basis for political attacks claiming that President Obama simply left the stimulus package, the budget, cap and trade and now health reform up to Congress. This has certainly put Congress in the spotlight (or under the microscope as the case may be), but it has opened President Obama up to accusations of incompetence, inexperience and political weakness. Those that support him (as far as I can tell) offer no explanation but issue calls for more specific leadership from the White House.

In certain cases it goes beyond legislation and spills over into other political issues. Some issues on which President Obama is receiving criticism are areas where he made campaign promises and has not as yet acted on them. When he first became president he was widely applauded by liberals for issuing an executive order to close the prison at Guantanamo Bay, albeit some still criticised him for giving the military a whole year before it had to be closed. Some of his most ardent supporters were expecting him to issue sweeping change to the American system in a very short amount of time, whether through Congressional action or executive order it did not matter. Those same supporters who wanted him to close Guantanamo Bay probably fully expected him to continue issuing executive orders to repeal the Don't ask, Don't Tell policy for the military or to repeal the Defence of Marriage Act. When these executive orders did not materialize some of President Obama's liberal supporters began to cry foul and insist that he make good on his campaign promises.

For that group of supporters they felt betrayed and began to criticise President Obama for failing to listen to their demands. A few of the more prudent among them noted that he already has a lot to deal with and he didn't need another issue to try to push through which would cost him a lot more of his already precious political capitol. This pragmatic view seems to be the prevailing view among those that advocate for these issues. But just to test the waters, so to speak, they have already brought these issues (Don't ask, Don't tell, and DOMA) to court but were surprised when President Obama came out in defence of these issues. They were probably expecting him either remain neutral on the issues for the time being or to give some indication that he would push for their removal. But instead he (or his attorney generals) have defended them and President Obama insisted that if they are to be removed that it must be through an act of Congress.

This assertion came as some what of a surprise to many liberals, that the President of the United States would not change policy through executive order, nor would he give to Congress pre-written legislation to pass. Some might be asking, "What went wrong?"

Now I will enter the realm of speculation. This is the realm of trying to figure out the personal motivations behind the President's actions, which because I do not know him personally I can not give an accurate assessment of. But I can speculate and throw out some ideas that just might be right. As I have mentioned President Obama's critics (and some supporters) insist that he is doing this because of inexperience or out of political expediency, but I will present another option that may not be obvious, but may be correct. The reason why President Obama has taken this approach towards Congress and also in defending DOMA and the Don't ask, Don't tell policy, may be because he has actually read the Constitution. Novel idea.

You see there is are two minor details here that I want to point out. The first minor detail is that the Constitution clearly states that "All legislative powers herein granted shall be vested in a Congress of the United States" (Article I Section 1). By definition, legislative power is the power to make and enact laws, which in turn determine public policy. The second minor detail is that the job of the President is to "take care that the laws be faithfully executed" (Article II Section 3). To put this in simple High School Government Class terms, Congress writes, votes on and passes the laws. The President makes sure the laws passed by Congress are kept. As many high school government teachers like to point out, the President does not have the power to write the laws. That power is explicitly reserved to the Legislative Branch. Also as the like to point out that Presidents get around this "minor issue" by giving someone in Congress their pre-written bill and then that Congressman presents it as his own, even if everyone "knows" that it was actually the President who wrote it (maybe not him literally, but you know what I mean). Again as high school government teachers are so fond of pointing out, this violates the spirit of the Constitution and the principle of separation of powers, but nobody really listens to high school teachers anyway.

Now it is well know that President Obama was a professor of Constitutional Law at the University of Chicago (senior lecturer, whatever), but the point is that he had plenty of opportunity to deal with constitutional issues. And somewhere in there he may have actually read the Constitution (Shocker! I know) and somewhere in there he may have realized that it is the duty of the Legislative Branch to write, pass and enact the laws, and not the duty of the Executive Branch. Which means that in his personal approach to being President he has decided to actually live up to both the letter and spirit of the Constitution (at least on this issue) and let the Legislative Branch do what it is supposed to do and let the Executive Branch do what it is supposed to do. This may come as a shock to politicians on both sides of the aisle, but based on what President Obama has done so far while in office this appears to be how he is approaching being president.

This may come as great disappointment to many radical liberals because up until now their main tactic for advancing their agenda has included a blatant disregard for Constitutional Law. They have insisted that courts (the Judicial Branch) enact laws (a Legislative power) from the bench (the seat of Judicial Power), or they have insisted that Congress pass laws without regard for the enumerated Legislative powers. And now that radical liberals have a dear friend in the White House they insist that he use (abuse) his office to enact legislation to their personal benefit. But much to their chagrin he may actually respect the Constitution and won't abuse his powers. I find it particularly revealing about radical liberals that when they are confronted by one of their own, and one who at least says he supports their causes, who stands by the Constitution, and the rule of law, they vilify him and criticize him for not fulfilling his promises to them, even if that means blatantly disregarding the Constitution.

Again I must state that this is all speculation because I do not know the President personally, but it does seem to fit the facts and reflect how the President appears to run his administration. What do you think?

North Korea: Major Test for the UN and International Law

The recent missile and nuclear tests carried out by North Korea present a major test for the efficacy and credibility of the United Nations and International Law in general. To understand why this is let us consider the situation as it now stands. For some time the international community has been working to have a peaceful resolution to the unfinished war on the Korean peninsula. But because of North Korea's push to develop nuclear weapons there is a perception that what the UN and the group of 5 nations (Japan, South Korea, China, Russia and the US) have been doing has not been working. There is still a lot of talk about renewing the negotiations and having a peaceful resolution to the crisis, but even if conflict is averted the UN and international law in general will have lost its credibility.

There are several possible outcomes to this crisis. Let us consider them:

The negotiations could either start back up, or not.

If they do they will either succeed or fail in disarming North Korea.

If the talks do not start up, then either action will be taken to disarm North Korea or no action will be taken.

Let us look at what these four possible outcomes would mean.

First, if North Korea is not disarmed either through negotiations or otherwise (the international community's inaction) then there will be perception that international law is of no effect and that any country can try to get nuclear weapons and no one will or even can stop them. This outcome should give cause for concern to countries like Russia who have to deal with countries like Georgia. If a small nation like Georgia sees that North Korea can get nuclear weapons and not suffer for it, they may look to build their own nuclear weapons. And if that is the case then what is there to stop countries like Iran, Venezuela, Egypt, Syria or Libya from building their own?

The whole purpose of the Nuclear Non-proliferation Treaty was to prevent more countries from arming themselves. If the treaty is shown to be ineffectual then many more nations will arm themselves, both for offense and defense. This does not seem to be a very pleasant prospect.

If Korea is disarmed (through negotiations or force) then there will be an understanding that international law and the UN do have power and they can enforce international treaties. The perceived strength of international law after this is accomplished will depend on the manner of the negotiations (or the force used).

Thus just as North Korea was the first major test of the UN, it may be the last major test of the UN. It passed the first time around, but if it fails this current test, there may be no further tests for the UN.

I should point out that there are possibilities that may allow for a peaceful resolution without such bleak or depressing outcomes, but a lot of that depends on some noble actions from people that up until now have not demonstrated much nobility.