The Relationship Between Controversy and the 2011 Honor Code Change

Pasting without edits my recent email response to a USGA blogger, referencing a suggestion I emailed them. 

Hi Brad,

We are planning on posting your article to the blog this friday. I have some questions from our editorial team to help refine the article.

Reference:

"A professor of mine who was on the honor code committee shared with me his belief that the honor code was changed to make it more difficult for conservative voices to succeed in ensuring I was publicly disciplined..."

Question:

1. Would you be willing to say which professor it was?

I've given some thought to this. This professor who shared his belief with me orally still works at BYU, and I have an ongoing friendship with him. I think naming him would complicate our relationship, so I'm leaning against disclosing his identity. 

However, if it would aid the editorial team's credibility, we can explore me screensharing the written communications I referenced so you/team can verify the sources' roles (the influential BYU professor and the emeritus general authority).

2. Are you aware of any other pressures besides protecting you for disciplinary action that may have prompted the change to remove the advocacy clause?

Though there may have been some who were interested in protecting me from honor code discipline on principle, I'm skeptical that was a driving force. There are a great many who are invested (financially and otherwise) in the reputation of BYU and the J. Reuben Clark Law School: these stakeholders value those institutions' recognition from peers and competitors, and stood to suffer from reputational damage caused by negative media attention that would likely have resulted were I disciplined for violating the advocacy clauses. These institutions' ability to attract talented faculty, funding, and collaboration with faculty at other institutions depend on perceptions of these institutions upholding norms of academic freedom and freedom of thought (example of the press attention and consequences when violations of those norms come to light, and an example of a collaborative venture that relies on these perceptions). 

The voices behind these interests, and others, may have contributed to the change for similar reasons. Immediately below I explain how the broader same-sex marriage issue may have influenced content and timing of the removal.

3. Do you believe your book was, in large part, why the honor code changed?

Without direct access to the relevant conversations of the decision makers (the Board of Trustees) and those who influenced the decision makers, it's difficult to ground a belief in the causes of the 2011 change. What we can say is that all the honor code changes of recent decades have one thing in common: recent or imminent public controversy.  Most of these you detailed in your earlier article, and were directly related to homosexuality. Other examples include:

• The disaffiliation clause (where leaving the church violates the honor code), which appears to have been added after a controversial public exit from the church by a BYU student
• The 2015 honor code changes, which took effect shortly after a series of news articles reporting on a boycott and related accreditation challenges, including to BYU Law's accreditation by the American Bar Association. (ABA timeline, Daily Universe interactive timeline, and causation analysis)

The salience of the public same-sex marriage debate in late 2010 may have influenced the content and timing of the 2011 honor code change. For instance, "on December 6, 2010, the judges heard oral arguments, which were also televised and made available on C-SPAN" in the Perry v. Schwarzenegger Prop 8 case. The lead counsel in that case, Chuck Cooper, spoke at BYU Law in September 2010 on the subject, accompanied by several VIPs including First Quorum of the Seventy member Lance Wickman and Von Keetch (former clerk for Justices Warren Burger and Antonin Scalia, as well as chief outside legal counsel to the LDS Church, later executive director of the church's Public Affairs Department and, for a time, my stake president).  The emeritus general authority wrote to me around that time: "Now, I must give my counsel and express my concern on your subject.  You have every right to have your viewpoints and I would think, knowing you, that they are sincere and carefully stated.  I must say, however, that you have picked a subject that is fraught with peril to you and to the Church of Jesus Christ of Latter-day Saints.  To write on this subject at any time is going to stir up significant controversy, but right now is one of the most controversial times to publish anything on the subject.  The Church has strong views in favor of marriage as it has been defined and practiced  virtually since the beginning of time. The official Proclamation on the Family states those views and contains the official views of the Church to the world and to Church members. Members are free to hold..." (italics mine; quote continues into the excerpt I included in my initial email).  

Marrying a same-sex partner is a "homosexal behavior," and supporting same-sex marriage is viewed by many as "promoting homosexual relations as being morally acceptable."  Thus, supporting same-sex marriage violated the honor code. Since this position was blossoming at the time among BYU students/faculty and has only grown in that population since, removing both advocacy clauses in advance of the Prop 8 ruling that issued shortly thereafter prevented the negative media attention and related consequences risked by disciplining a growing group of BYU students/faculty for supporting same-sex marriage. As your article described it, "This new revision now permitted students to openly support and affirm queer relationships and legislation."

In all the honor code changes of recent decades, the timing of honor code changes correlated closely to controversies directly related to the content of impacted honor code language. Given all the above, (A) the evidence we have of relevant and high-level BYU officials' concern (e.g. President Samuelson, law school deans, and general authorities), (B) the timing of these concerns in the months immediately preceding the change, and (C) the publicity the book was gathering in the months immediately preceding the change (including purchase by the BYU Library in addition to being sold out at the BYU Bookstore and being reported on by QSaltLake and PrideInUtah), in conjunction with the marriage equality milieu, it's the strongest contender I know of that explains both (1) the content of the change and (2) its timing. 

It may have been that my book/situation was simply the "case in point" needed to make the change at that point in time, rather than later after several instances of bad press surrounding enforcement of an anti-same-sex marriage honor code position increasingly at odds with ecclesiastical practice. Since 2010, LDS leaders have required public opposition to same-sex marriage less and less (when juxtaposed against what they required during Prop 8 in 2008), especially as same-sex marriage has won judicial and legislative victories in ever-more jurisdictions around the world. In the two years before the honor code change, as many countries legalized marriage equality as had done so in the century before that period: and legalization has blossomed since Feb 2011 in the US and beyond in a way that, notably, was predictable in the months preceding the change. Increased societal and legal acceptance of same-sex marriage introduces conflict between required opposition to marriage equality and members' support of local laws, as well as their increasing support of marriage equality. Making the change in February 2011 prevented the negative consequences of disciplining a growing population of marriage equality-supporting BYU students/faculty that was predictably expanding for these reasons. It also avoided the negative consequences of widening the gulf between what church leaders do, and what BYU does, to members who support marriage equality.

4. How do you feel about the idea that the honor code can be changed to protect students from itself?

Would you please clarify this a bit? Do you mean altering the honor code such that students are less likely to (1) violate it, (2) be harmed by discipline that results from violating it, or (3) something else?

5. What are your thoughts on the duality of the Honor Code protecting you from conservative voices, but also representing conservative voices? Do you think there is conflict within the Honor Code committee and CES?

Though I'm grateful that I didn't become the subject of honor code discipline, as mentioned above that outcome seems more likely attributable to preserving institutional reputation than it does protecting an individual student.

With respect to conflict within the honor code committee and CES, there's nothing I can say from first-hand experience. On the basis of what I've heard from sources more seasoned than I and more familiar with the politics in such organizations, I would be surprised to find no tension between conservative voices and relatively progressive forces in the honor code committee, the Board of Trustees, and CES. In addition to the communications I've already shared with you, another BYU professor wrote me:

"I am not at all surprised at the warning from the ex-GA, nor the sensitivity of Pres. Samuelson; such stuff is totally predictable. People in the hierarchy are part of an organization that wants to control everything possible that is in any way associated with them. Individuals elevated to positions in that hierarchy get there by buying totally into the mindset.  And yes, you should realize that the folks upstairs have very very long memories.  If you personally have any leadership aspirations at all, this book will greatly complicate your future...

 

We are always counseled to not "aspire to ecclesiastical office" -- but a great proportion of our people definitely do --- and that definitely includes BYU presidents.  Wives and relatives are all a-flutter when their husband or relative is called to be a bishop, and it only gets worse as men climb the ladder...  it is sadly true that you should consider your own situation and that of any wife involved; wives have to carry whatever fame or opprobrium their husbands incur.  I say this not to discourage you from publishing a truly unusual and valuable work, but so that you may make decisions fully aware of long-term implications."

The influential professor I mentioned provided a similar lesson about aligning to the conservative position in the interest of my future career in the church (italics mine). "I took a class in public speaking. One of our assignments was to give a persuasive talk on something that we didn’t believe in and convince the audience (i.e. the class), that what we didn’t believe in was in fact true. It was probably the most difficult talk I have ever prepared and given. I chose to defend euthanasia. I worked on that talk for several weeks. Finally the day came for me to present. According to the professor I did a marvelous job.  I got so much praise from the talk that I thought I must be telling the truth. One day it dawned on me that I had been so convincing that I actually believed what I had presented. After reading what the Church said, I knew I was wrong.

            It has been over four decades since I gave that talk and I still have to struggle not to believe mercy killing would be better “in some cases” than allowing people to suffer when they have no hope of a quality life if they survive. I can still quote the power statements I made in the talk. What did I learn from all this? It is very dangerous to come out in opposition to the prophets and what the Lord reveals to them.

            You are obvious a very bright individual. Even if you were to admit that your reasoning and quotes, etc.(which go against prophetic counsel) were wrong, you will find (if I am any example) that it will take you a lifetime to align yourself with what the Lord and His leaders have taught. You have argued persuasively but (from my perspective) against what God has revealed.

            Now a word of caution. You are free—because that is a God-given right—to exercise your agency and publish the manuscript. However, you are not free to dictate what the reaction of Church leaders will be towards it. I would suspect (having interfaced with the General Authorities for many years) that they are not going to take kindly to your book which will, because it is logical and well-written—lead many people away from the Church’s mainstream teaching. If I were to counsel you, I would say to put the manuscript away until the Church changes its stance. Otherwise you will be viewed as untrustworthy in defending the doctrine of the Church. Remember, the term “Elder” as defined by President Harold B. Lee, mean “defender of the faith.”  You can’t oppose what the Lord reveals through His prophets and still be viewed as being in the mainstream of the Church. You can be as smart as can be and as worthy as any other person and still be passed over for leadership positions because the Church leaders do not want to run the risk of having you in a power position but in opposition to Church policy and doctrine.

            Take a long, hard look at what you want in life, what you want your Church opportunities to be, how you want to be viewed by Church leaders, and where your projected course will take you. Again, you are free to choose your course of action. You are not free to choose the consequences that are on the other end of the stick."  

 

Given that:

1. Many members of those organizations both then (2011) and now (2021) are deeply conservative
2. Aspirants in the hierarchy have an interest in not being seen to contradict those in power
3. Peer institutions of higher learning and mainstream academia are part of a liberal consensus that expects (1) tolerance of student and faculty's support of marriage equality and (2) academic and intellectual freedoms
4. That liberal consensus is inconsistent with the honor code's current constraints on religious and intellectual freedom, as well as its historical limits on supporting marriage equality,

yes I believe there is conflict. 

Reference:

Article overall

Question:

1. So far, we have concluded the message of the article to be that challenging the honor code can change it and that within the honor code system there is conflict between protecting and disciplining students. What would you say is the overall message of the article?

As a director of FreeBYU, I believe that challenging the honor code can change it, because we've seen our activism do exactly that (see the 2015 change above). However, I did not write my book to challenge the honor code: I wrote it to explore a number of subjects related to homosexuality, such as causation and mutability, and included a few chapters on same-sex marriage that some happened to think violated the honor code (I don't think it did, but I realize some disagree- at the end of the day, few have actually read it).

Also, I'm not convinced the framing about protecting and disciplining students is well-supported. Given the abundant evidence we have of callous honor code-related treatment of BYU students by Honor Code Offices, BYU bishops, and BYU Administrators, it appears interests such as reputation and power are valued above students. If the primary forces at play were genuine interest in either protecting or disciplining students, we would expect a myriad of realities we don't observe such as consistent honor codes (they vary substantially across CES institutions), consistent enforcement (don't get me started), proportional discipline, and meaningful appeal processes. To me, the example of the Feb. 2011 change speaks more to the causative relationship between controversy and honor code change, than it does the relationship between honor code change and either direct action or student welfare. Just my two cents of course, as the editorial team your conclusion is a valid one.

Thank you,

[name removed]