Saturday, July 12, 2014

Millennial Star guest post on recent excommunication

Hammering the Table

This is a guest post by Michael Davidson, who says he is an active member of what may be the most geographically expansive branch of the Church in North America. He is a father, husband and attorney. He spent yesterday, Saturday, June 21, 2014, driving up the northern peninsula of Newfoundland in search of icebergs and moose. Plenty of both were seen and captured photographically.

When the facts are on your side, hammer the facts. When the law is on your side, hammer the law. When neither is on your side, hammer the table. I have no idea who first said that, but this is advice almost all trial lawyers have heard at one time or another. As an experienced trial advocate, I’ve had plenty of opportunities to do each of these, and each course of action is perfectly acceptable in our system of justice. Courts are great places in which everyone has a shot, even those who have no basis in law or fact to expect success.

This leads me to the increasingly tragic saga of Kate Kelly and her little club. As most readers of this will know, Ms. Kelly’s attendance has been requested at a disciplinary council to be held this evening. She has publicly stated that she has no intention of appearing, though a gaggle of her supporters will be appearing at the Church in Virginia in her stead. Ms. Kelly herself will be attending a demonstration in Salt Lake City instead, to protest the Church for her bishop’s decision to convene the council in the first instance.

Instead of attending, she submitted a personal statement signed by herself, a legal brief drafted by Nadine Hansen and a circular file worth of anonymous statements in her defense. Having reviewed each, or at least as much as has been made available online, I am not terribly moved. She can’t argue the facts, as they are not in dispute. Ms. Kelly concedes in various statements this last week that if they are merely going to ask whether she had done the things she has been accused of, that there is no defense. She can’t argue the law, because the law condemns her. She continued to preach her doctrine of gender equity long after she had been warned to stop by her stake president. The definition of apostasy is clearly met here and there is no defense to it. So, she hammers the table, as does Ms. Hansen.

Ms. Kelly’s defense consists of three pages of biographical exposition followed by a page of defiance. She lists all the ways in her life that she has acted as the perfect little Mormon girl. She cites her missionary service, marriage in the Temple, and devotion to BYU as indicators that she is loyal to the Church and could not have committed apostasy, because of all the gosh-darn Mormon things she has done in her life. This is silly. It’s akin to a bank robber who was caught red handed defending himself in Court by providing a list of all the banks he hasn’t robbed. Even if we accept as fact that she was not engaged in activities that would fit the definition of apostasy in high school does not mean that she isn’t engaging in apostasy now.

In the final page of her missive, she warns her Bishopric that they need to be careful because if they punish her, they’ll also be punishing “thousands of Mormons who have questions and concerns with gender inequality in the Church.” She points to the large numbers of supporters she has recruited into her little club as potential victims of any discipline that may be meted out. This should be a counterproductive argument. Ordain Women is the vehicle of her apostasy, and demonstrating just how successful she has been in gathering a following (based, at least in part by her claim to be a faithful, temple recommend holding, member of the Church) only further drives home the need that the Church take some action. If she had merely written an article for Dialogue and thereby exposed her ideas to literally dozens of people, it would have been different, but Ms. Kelly’s reach is far greater than that, and the need for correction is accordingly increased.

She then doubles down and directly states that she will not be complying with the conditions imposed by the stake president as a part of her probation. This, in and of itself, is damning and more than adequate cause to justify excommunication if the Spirit directs that outcome.

Ms. Hansen does not do too much better. She attempts to apply legal principles to the defense of Kate Kelly and attempts to question the council’s jurisdiction, impartiality, adherence to procedure and due process, etc. None of these arguments are persuasive, because US legal precedent simply isn’t controlling in a disciplinary council.

She does point out that the method for delivering the summons to the disciplinary counsel was not followed, and suggests that this is fatal to the proceedings. This is hogwash, as those rules are set forth to ensure that the subject of the disciplinary council received adequate notice of the council. I think that all of us can be sure that Kate Kelly did indeed get the letter, though it would be interesting whether she read it before sending it to the New York Times, or after, or at all.

Ms. Hansen then goes on a bit of a jury nullification argument. Knowing that the Handbook and the facts condemn Ms. Kelly, she argues that this bishopric should ignore what the Handbook says on this subject and decide on a “no action” outcome of the hearing. Good luck with that. I’m guessing those brothers will be pretty careful to follow the Handbook’s guidance on this matter.

Based on a review of the written materials that will be put in front of Ms. Kelly’s Bishop, I would expect an excommunication. I’m not a betting man, but if I were I would put my money on that outcome. There is no contrition, there is no submission, there is nothing except a promise to keep doing what she has been told constitutes apostasy. My experience with such councils only confirms this expectation.

Having said that, I find no joy in this. I find it tragic. There is nothing that I would like to see on Monday morning is the news that the OW website had been removed from the web and that Ms. Kelly was able to avoid any further discipline. I’m not holding my breath.

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