Sunday, March 28, 2010

Policy problems: a perverse stick in the consequence bundle

 "Kathy abused the kids. She cheated on her husband- openly, repeatedly, and with many different men. She wouldn't do any of the housework, and she flat-out refused to get a job when her husband had his accident. She neglected their 4 year-old child, Bethany, until she had to go to the hospital. Plus, Kathy physically and emotionally abused her non-retaliating husband, and berated him in public and in front of Bethany and her brother at nearly every opportunity. There was nothing left of their marriage. Those who knew her described her as "evil."  Over a period of 8 years, she vehemently resisted every suggestion of counseling or behavior change."
This story exemplifies an instance where divorce would probably be appropriate. Below I show why this example and other arguments support the claim that, in the context of issuing church policies, it would be better in many instances to either 1) carefully articulate relevant exceptional factors or 2) issue no policy at all than to 3) issue general policies.

Context: The LDS Church Handbook of Instructions (CHI)

Case issues to be considered: divorce, adultery, stem cell research, euthanasia, abortion, homosexual marriage, surrogate motherhood

Caveat: the views expressed are of course not the church's (and not always my own- there're sort of a thought experiment, i.e. imagine someone like me who held these views), and I may get some facts wrong, such as the official position of the church on some of these issues

A quick review of why I think the church would issue a policy in the CHI-
Objectives of issuing policy:
1.      To cause more favorable outcomes for decision makers and those affected by decisions than would occur without the policy.
2.      To improve decision-making by providing tools calculated to this end.
3.      To comply with God's expressed will
Example: by maintaining a policy against euthanasia, the church presumably satisfies both objectives. Fewer persons are deliberately and immediately killed by physician-assisted suicide, and fewer sins are committed by those who would violate God's commandments by committing or assisting euthanasia, thus satisfying objective 1. Decision makers (say, LDS family members and physicians) are more likely to make the right choice by complying with the duty created by the policy. Otherwise, they might "but for" the policy erroneously conclude that some forms of euthanasia would be appropriate in some circumstances (say, a patient gives informed, passionate consent to euthanasia in order to stop extreme terminal suffering a few days early). Thus, objective 2 is also realized.  If the position was a revealed one rather than a practice (which is sometimes difficult to discern- e.g. the over-a-century practice of denying the priesthood to black males being one example of that difficulty), objective 3 is fulfilled.

Because the CHI is functionally a close approximation to a church legal code, CHI provisions are appropriately evaluated using comparable legal analysis constructs. I now support my claim (in the context of issuing church policies, it would be better in many instances to either 1) carefully articulate relevant exceptional factors or 2) issue no policy at all than to 3) issue general policies) by drawing upon two: 1) the "void for vagueness" doctrine and 2) the legal ethics idea of duty (also a standard deontological concept) .

1) The void for vagueness doctrine
“Misera est servitus, ubi jus est vagum aut incertum.” - It is a miserable slavery where the law is vague or uncertain.

Many church policies threaten punishment and therefore roughly amount to criminal statutes- e.g. adultery, homosexual behavior, and euthanasia. Church members are subject to those CHI policies in that they can be disciplined for violating them. Some church policies seem to fall into this void for vagueness doctrine in that they don't provide sufficiently clear guidance on which to base conduct. 1) Sometimes nonstandard definitions are used, as in the cases of euthanasia (church defines letting die as outside the definition of euthanasia, in direct contradiction to a standard definition such as: "Also called mercy killing. the act of putting to death painlessly or allowing to die, as by withholding extreme medical measures, a person or animal suffering from an incurable, esp. a painful, disease or condition.")  and homosexuality (in a least one statement homosexuality is defined as only behavioral when a standard dictionary definition offers both activity and orientation).   "the terms of a penal statute… must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." -Connally v. General Const. Co by Justice Southerland.
2) Though many church policies articulated in the CHI can result in sanctions/punishments against a member (excommunication, disfellowship, stripping of some ordinances, removed sacrament privileges, removed temple recommend, etc.) these policies are not publicized. The CHI is instead carefully guarded from general distribution.  For example- despite my efforts I have not yet obtained a copy of Book 1 of the 2006 or 2010 CHI. Ut poena ad paucos, metus ad omnes, perveniat- "that punishment may come to a few, the fear of it should affect all."

Example: did you know-

"Church discipline:
For minor transgressions, where the person is sincerely repentant, their bishop may invoke informal church discipline. This involves counseling with the member, and placing them on informal probation. Their privileges "...such as the right to partake of the sacrament, hold a Church position, or enter the temple" may be restricted.
For more serious transgressions,
"...such as abortion, transsexual operation, attempted murder, rape, forcible sexual abuse, intentionally inflicting serious physical injuries on others, adultery, fornication, homosexual relations, child abuse (sexual or physical), spouse abuse, deliberate abandonment of family responsibilities, robbery, burglary, embezzlement, theft, sale of illegal drugs, fraud, perjury, or false swearing,"
a disciplinary council may be convened. The council can decide to place the transgressor on formal probation, or invoke disfellowshipment or excommunication. 6
I don't know whether this policy is current (6.  M. Russell Ballard, "A Chance to Start Over: Church Disciplinary Councils and the Restoration of Blessings," Ensign magazine, 1990-SEP, Page 112, at:
2) The concept of duty
There are two popular ways to make an ethical decision (consequentialist and deontological). The deontological approach is to articulate the relevant duties, then act in the direction of the net duty. Church members are taught to believe in the infallibility of revelation and to believe that the Church is led by revelation- which principle likely extends to the provisions of the CHI since it is an official, judicial document that common judges in Israel are bound to enforce (or at least their discretion in many matters in narrowly constrained). Therefore, by issuing a CHI policy, the church inserts a very heavy duty into the decision-making equation both for Bishops as well as decision-making members.  Verba debent intelligi cum effectu - "words ought to be understood with effect."

If the CHI makes a nonspecific (general) policy on an issue, then one should presume that all categories of that conduct are proscribed. Example: "The church disapproves of adultery." Thus, for one to presume that the church smiles upon some categories of adultery but frowns on others would be inappropriate.  Ubi eadem ratio ibi idem jus, et de similibus idem est judicium - "when there is the same reason, then the same judgment should be rendered as to similar things."

Another germane example is homosexual marriage. The church disapproves of homosexual marriage and homosexual behavior. There is no class of homosexual behavior or marriage-like arrangement in which a faithful Latter-day Saint can participate without breaching church policy with its attendant consequences.

It seems better to rely on a consequentialist or deontological approach than to obfuscate ethical decision making by imposing a prophet-decreed duty so you have to breach your faith in God's servants in order to make an ethical decision. Muilta exercitatione facilius quam regulis percipies - "You will perceive many things more easily by experience than by rules."
To vary from a policy, a faithful church member either blatantly sins or at the least manifests a lack of faith in the revelation of the church.  This is troubling in two categories.

Category 1: the member mistakes the church's position and then makes an erroneous choice on that basis. Example 1: at the beginning of this post, the man continues to subject himself and his children to the wife's abuse and neglect by choosing not to divorce. If this choice is based on an understanding that divorce is always wrong, the man has thus made a choice that is justified neither deontologically or teleologically. Example 2: a man knows that the church teaches that a husband's primary responsibility is to provide for his family. He mistakenly places too much weight on this policy and neglects to spend time with his family, instead distancing himself more and more by working weekends and nights to provide a middle or upper-class level income for his family. Example 3: knowing the church teaches against abortion, a couple with several young children decides not to undergo an abortion even though the pregnancy resulted from rape, the doctor determined that the health of the mom is in serious jeopardy, and the doc determined that the fetus is defected to the point that the baby won't make it past birth. The mother and baby both subsequently perish a month later.

Category 2: decision makers correctly identify the church's position, but cease employing their decision making faculties, and devolve into an overly simplistic black-and-white canard incompatible with the grays of life (I provide 6 of 1000's of these gray area examples). Example 1: The church requires honesty in all one's dealings and in obeying the law. The church member is harboring Jews, and the Gestapo lawfully stops by and asks if there are any Jews in the house. The faithful member confesses, and both he, his family, and the sheltered Jews are predictably tortured and killed. Example 2: A faithful member thinks it is immoral to father a child with woman B while simultaneously being sealed to woman A (to do so is to commit adultery). The member is troubled by the reality that God did just such a thing by fathering Jesus while, as the member presumes, God was sealed to Heavenly Mother at the time. Example 3: the church is burgeoning in Sicily, and the church has a policy against bribery. However, every time the church fails to make a timely payment to the powerful Sicilian mob church buildings are vandalized or burned, and church leaders and missionaries are frequently beaten and sometimes killed. The church decides to pay off the mob. Example 4: a son is the appointed power of attorney for an unresponsive father with a severe condition involving seizures and respiratory problems. The father experiences pain and suffering but can't communicate his wishes. The son knows the church decries "deliberately putting to death a person who is suffering from an incurable condition or disease. Such a deliberate act ends life immediately through, for example, so-called assisted suicide. Ending a life in such a manner is a violation of the commandments of God." He also knows that the Church "does not believe that allowing a person to die from natural causes by removing a patient from artificial means of life support, as in the case of a long-term illness, falls within the definition of euthanasia. He also knows that the church teaches that sins of commissions and sins of omission are both grave sins. ("I fear that some of our greatest sins are sins of omission"). Additionally, he's aware of powerful arguments supporting the conclusion that no morally significant distinction between killing and letting die exists. The son's father is suffering from a disease that is 98% incurable (+/-2% margin of error). The father's living will contained a general provision about not being kept on life support but said nothing about heroic life saving efforts, such as administering antibiotics or CPR upon respiratory failure. Though the father is not "on life support," the father's life is supported by artificial regular medications without which he would immediately die of natural causes. The son is also aware of powerful arguments that no morally significant distinction between natural and artificial exists. While there, the son learns that the father probably only has a couple days left. During the son's visit, the father has another obviously painful seizure, and the other family members pressure the son to take the father off his normal meds so he can pass away in peace and cease his extreme suffering.    What should the son do?  Example 5 (a hypothetical): Nephi knows of God's footnote-less, stern command, "Thou shalt not kill." Therefore, he shrinks, concluding that the spirit telling him to slay Laban must not be of God, for the Spirit would never contradict the express command of the Father. The Nephites never receive the brass plates, and Nephi is culpable for disobeying a divine command. Example 6: Adam intentionally breaches God's express command to refrain from partaking of the fruit, but causes through this act that man may be.

Thus, absent weighty comparative benefits, it would seem advisable for the church to infrequently issue policies because of the perverse results in these two categories of cases. 

If making a high caliber choice necessarily relies upon the decision maker's ability to discern whether his is an exceptional case, it seems reasonable to rest the decision upon the decision maker's discernment ability in the first instance and forbear from issuing policies. Yes, teach doctrines to help the decision-maker ascertain the degree of pro and con that should attach to the various sticks in the likely consequence bundle of each alternative course of action; but refrain from imposing the often counterproductive duty of bluntly following the prophet's counsel unless there are no circumstances native to the issue that are likely to justify exceptional categories (which practically never happens). This approach is also wise in that it allows for greater flexibility for future novel issues that are created by technological advances; otherwise, it becomes expedient to invest heavily in constantly evaluating, for instance, the continuously morphing contours of bioethical issues centering around reproduction and death (i.e. life-prolonging procedures, surrogate motherhood, IVF iterations, PGD, etc.).  Do the policies appropriately identify the reasonable factors, unique to that issue, that should or could result in a permissible exception?  Idem nihil dicere et insufficienter dicere est "it is the same to say nothing as not to say enough."  Absent extensive understanding of the universe of circumstances attendant to these situations, policies are prone to look more like sweeping generalizations likely to elicit category #2 problems.

Agency always exists independent of church policy- no one is physically barred from sinning.  Thus, to issue a church policy, say that the church advocates Prop 8 in California, and then to accompany that statement with advice to church members that they have their agency is to articulate that which is self-evident.  Quod necessarie intelligitur, id non deest – “What is necessarily understood is not wanting.”  The reminder of agency merely confuses a decision maker because it suggests that s/he should use their own judgment and conclude for him or herself, which contradicts stating the proper position (i.e. think for yourself, but if you come to a conclusion other than the one we state here, you're wrong).  A policy statement is a communication of the morally superior position on the issue, not an invitation to consider the matter openly for oneself.

Joseph Smith: “This is the principle on which the government of heaven is conducted—by revelation adapted to the circumstances in which the children of the kingdom are placed” (History of the Church, 5:135).  Individuals don't engage life in a general way.  Instead, ethical situations are experienced inseparable from context, situation, and circumstance.  Thus, extenuating circumstances, evaluating consequence bundles, and achieving situation-specific revelation all seem at least as relevant to decision making as applying a blunt "follow the Brethren" approach based on statements that are usually generalized at least to some degree.  Generale nihil certum implicat "a general expression implies nothing certain."

An excerpt from my other post:
 It seems strange that religions should be years behind societal changes- you'd think instead that at least a revelation-based religion would be light years ahead on important issues of social justice and truth because of their access to a source of omniscience.  An example that comes to mind would be the Word of Wisdom, which seemed ahead of its time.  A riposte would be blacks and the priesthood, which in 1978 was not only over a decade behind the civil rights movement but over a century behind the Emancipation Proclamation.  Perhaps church members and leaders are too quick to presume that we already have all the truth we need (a sin we typically charge the Jews with for stopping at the Old Testament instead of accepting Christ and the New; or that we find modern people culpable of for stopping at the Old and not accepting the Another [Book of Mormon: Another Testament]).  Just last Sunday, a bishopric member advocated that I cease my line of questioning.  He made the oft-cited argument that "it's not important to your salvation" in response to my discussion of some church policies.  Article of Faith nine: "We believe... that He will yet reveal many great and important things pertaining to the Kingdom of Heaven."  Also, Joseph Smith: "... it will be a great work to learn our salvation and exaltation even beyond the grave.  Given the doctrinal support for the idea that God doesn't work among men save according to their faith and doesn't reveal until His children ask (e.g. the Doctrine and Covenants sections are almost wholly answers to interrogatories), it would seem to make sense for church members and leaders to be knocking down the doors of heaven to obtain answers to tough questions such as homosexual privileges, surrogate motherhood, and social justice, rather than shutting their  praying mouths on a "we've received all we need" basis like the Jews did to Jesus and many today do to President Monson.  President Kimball's worrying, praying, and raising of the issue likely resulted in the lifting of the priesthood ban against blacks ("God rarely—if ever—uses his prophets as "teletype machines" who mindlessly transmit God's will word for word—he requires his prophets to inquire with some thought as to potential answers").  Perhaps if prophets a century earlier had cared to pray about and resolve the issue the ban would have been lifted then (see especially Circumstances which preceded the 1978 revelation).  On the other hand, the Lord didn't lift the ban until about 10 years after President McKay and Hugh Brown's attempts to move in that direction, thus implicating some wise purpose(s) in the Lord's forbearance.  Anyway, to conclude I haven't yet resolved this tension between a revealed religion and its apparent conservativeness as compared to secular society.  
To end, I comment about the CHI's stated position about surrogate motherhood: "The church strongly discourages surrogate motherhood."  I remember feeling a little disappointed when I learned of this statement, as I had expected/hoped for a categorical distinction.  It seems the morality of surrogate motherhood is a function of the infertility of the couple, the dangers of pregnancy to the mother and surrogate, the payment, the legal status of the resulting child, the degree of relatedness of the surrogate, the rights of the surrogate mother and biological parents, and the degree to which the option is pursued merely out of convenience, among other factors.  For instance, if a wealthy couple merely wishes not to undergo the inconvenience and normal risks of pregnancy but want their own biological child through exploiting an impoverished/desperate surrogate who has high risk of adverse health outcomes, surrogate motherhood in this case should be discouraged.  However, some factors would make the decision to choose surrogacy more moral/less immoral, if not  even permissible or advisable as well.  Two examples:

One- Say an LDS couple thinks the church's direction is to have their own biological children where possible.  The wife has a difficult time conceiving, and due to a medical condition is at a high risk of dying during pregnancy.  The couple has no children but desperately wants them.  The wife has a healthy, fecund sister who had two successful pregnancies and is still fairly young.  However, the sister's husband is now infertile due to prostate cancer and the couple couldn't have any more children of their own (which they decided before the infertility diagnosis they  didn't want anyway).  After much prayer, the two couples decide to pursue IVF and surrogacy.  The at risk wife and her husband conceive through IVF, and the sister acts as surrogate.  The pregnancy is successful, and the child is born to a healthy surrogate mother and is reared by its biological parents.
Two- Same situation/couple as above, except the surrogate comes from a different condition.  The surrogate-seeking couple is rich.  The wife served a mission in Brazil, and knows of some of the terrible poverty among members there.  She knows many of the women successfully have numerous pregnancies and large families.  Some of these women in the church become surrogates to pay for health care and education for their own children.  The couple researches a reputable surrogacy company known for screening out at-risk surrogates (it chooses only surrogates most likely to have no complications during the pregnacny for either the child or surrogate).  The couple decides to employ one of these LDS surrogates, thereby enabling the rearing of their own biological child while at the same time benefiting a poor Brazilian mother in an economically self-reliant fashion.  

Posted by bradcarmack at 11:31 PM

1 comment:

  1. All members of the church should seek their Bishop for Counsel.

    I clicked this link cause Surrogacy caught my eye. I'm an LDS Surrogate. It's discouraged, just like gambling.'s too risky.

    Later, when Surrogacy has better defined laws where your children can't be stolen for you before you can even be sealed to them...-then- then church will likely have a stance on it.

    The Lord asked us to obey the laws of the land. It makes perfect sense for it to be discouraged at a time when the laws are on very shaky grounds if not flat out illegal.


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