Tuesday, October 29, 2013

What if the Prophet Said No? A Response to Opponents of Ordain Women

I recently posted a pro-ordain-women post on my wall:

Well documented, Rick Rampton. May Mormons near and far embrace governance equality sooner than later: the cause is just, and the proposed means (revelation to ordain women) an appropriate one. 


Ordain Women leaders
A good friend of mine, whose opinion I value, replied:

"Brad, as you know I disagree with you on this topic. I find it telling that a willingness to submit to God's will was never mentioned. A desire to fulfill the purposes of the priesthood was never mentioned. Christ was not mentioned once in this video. "God" was mentioned only as one women claimed to be advocating His truth.

What was mentioned often was individuals' feelings. It was about the women's feelings, not the priesthood purposes. And yes, our individual feelings are important, that that's not what the priesthood is about. The priesthood is not inward-looking.

I would love to ask every one of those women this question: "If the prophet announced that he prayed about this topic, and that priesthood service is man's responsibility, what would you do?"

And Brad, I ask you that question. What would you do if the prophet announced that?"

I replied:

"Thanks for the reply, *Jessie. Certainly, a willingness to submit to God's will is a virtue under a mainstream Mormon paradigm. To answer the question directly: also under mainstream Mormon practice (correct me if you perceive otherwise), are we not obligated only to follow a pronouncement made by a prophet that is confirmed to us by the Holy Ghost? Are we not also obligated to follow much other guidance that the prophet doesn't explicitly say, but which the Holy Ghost does confirm to us? Thus, prophetic announcement is insufficient to settle a question, and I would next ask what the Holy Ghost did or did not witness to me in the hypothetical you pose.

However, we need not appeal to a hypothetical, for two reasons. First, we have an actual example we can look to: black men who pushed for ordination of all worthy males. Faithful church members made exactly the same response you just did: "I find it telling that a willingness to submit to God's will was never mentioned... what was mentioned was individuals' feelings... priesthood is not inward-looking... if the prophet announced" etc. You're likely aware that many prophets were bold to declare that they had prayed about the topic, and that priesthood service is non-black man's responsibility. Notwithstanding, that policy changed: and neither you nor I can conclusively say that advocacy or consciousness-raising or direct action were not contributing factors to that shift.

Second, and more fundamentally in my view, the whole priesthood discrimination scheme fails for a rather objective reason: Mormons have not articulated a way to discern between males and females. As the Proclamation declares, the gender we care about is spiritual gender: yet we are not justified in assuming that physical sex maps to spiritual gender. Spiritual gender is an unambiguous binary, but physical sex in the real world is a spectrum. Just as some bishops and stake presidents disagreed about whether a person was "black enough" to merit exclusion, not all LDS decision makers agree about a particular individual's spiritual sex (think SRS or intersex individuals). Any test that can be considered an accurate discernment of spiritual sex must, at the least, be a binary one. I have yet to hear a Mormon decision maker articulate such a test.

Rather than squinting at peoples' anatomy (be it their genitals or their skin pigment), I think it would be reasonable to open the governance eligibility table to all adults, without respect to sex or race. Since in our tradition priesthood is a prerequisite to general governance (e.g. stake presidencies, the Quorum of the 12, the First Presidency, Stake High Councils, etc.), ordaining women to be elders is the most parsimonious path forward, if not also the most pragmatic."

Sunday, October 27, 2013

How to Prevent a BYU Student's Eviction When She Leaves Mormonism

In a recent post, Evicted because you changed religions? Welcome to BYU, home of the International Center for Religious Freedom Pharisees, I concluded that an LDS BYU student can be evicted, under the lease, for disaffiliating (or being excommunicated) from the LDS church.

There is, however, more to the story. From a thread on the subject, one law student noted, in part:

"I decided to take this hypothetical to the office hours of both my contracts professor and my property professor. Very interesting discussion. The legality of the honor code itself is semi-irrelevant because BYU is a private university and the only party with standing to challenge their tax exemption or student access to federal financial aid is the Secretary of Education. It's a fairly safe bet that that will never happen.

Your housing, on the other hand, is highly suspect. It might not be worth it to you to challenge it, but I'm guessing the reason you don't see this case frequently is actually because complexes will cave if pressed. The Federal Fair Housing Act (and I'm assuming even Utah has a similar statute though the federal one is sufficient for your purposes) forbids housing discrimination on various grounds including religious affiliation. An exception might be found if you were renting a room in someone's house, but if you're at a complex run by a management company it certainly applies.

Here's the important part: the average tenant is incredibly uneducated about their rights and simply takes the notion of 'legally binding contract' at face value. A legally valid contract, especially a residential housing lease, can contain terms which are unenforceable for various reasons. The sorry state of affairs is that it is not illegal for a landlord to include terms which they know are unenforceable in a lease, thereby leading the uninformed tenant to cave when there is a dispute because "it's in this contract that you signed and understood!" The fact is, a term which would force you to forfeit possession while remaining responsible for the rent when your only act was to change beliefs or affiliations is not legally enforceable. This doesn't mean a hefty award coming your way or anything, but it does mean that you should go to the management company and state plainly that if they are asking you to leave for these reasons (and they can't say that it's not because you changed beliefs, but rather because you broke the honor code or lost your endorsement: a court would look to the precedent act and find those provisions of the honor code discriminatory when applied to housing) then you most certainly will not continue to pay the rent, any cancellation fee, or worry about trying to sell your contract...

The more likely outcome is that the complex drops it because 1. $800 isn't worth the effort, 2. They know they would lose anyway and be stuck paying attorney's fees, and 3. a prolonged court battle on the subject could produce some very negative publicity for both the management company and BYU."

I responded:

"*Jamie is right on. I saw the original post and worked myself into a huff about what I was going to say, but Jamie hit most of it. Yes, under the contract the landlord has a ground to terminate the contract and subsequently evict Matthew based on his upcoming disaffiliation. I detail that legal analysis here (http://bradcarmack.blogspot.com/...), based on a general off campus housing contract since "Matthew" has unfortunately not shared his own.

HOWEVER, as Jamie points out, that contract term is unenforceable because it is overcome by the federal prohibition against religious discrimination by private landlords like Matthew's. Under both the federal Fair Housing Act and the Utah Fair Housing Act (Title 57, Chapter 21, Section 5 if anyone cares 
http://le.utah.gov/code/TITLE57/htm/57_21_000500.htm), such a term would be found unenforceable when the act in question, as assumed here, is disaffiliation.

A suit has been brought before on this issue, but was dismissed for lack of standing: standing would not be lacking here though, as it is a case of religion directly affecting housing ability and Matthew could fairly easily evidence a prima facie case of religious discrimination. However, Matthew has to let the hammer fall. If he chooses to kick himself out of his apartment by selling his contract, then there's no legal harm to complain about. Similarly, kicking oneself out by withdrawing from classes, rather than forcing the institution to take action (discontinuance of enrollment), leaves fewer bruises to demand justice for. Victims need to show harm to gain redress, and that can mean waiting for the blow rather than escaping harm's way.

If Matthew wanted to vindicate his housing rights at all costs, he would have disaffiliated, then waited for BYU to take action against him by removing his active enrollment status. Then he would have (1) waited to receive an eviction notice from his landlord, then (2) submitted the Housing Discrimination Complaint (
https://portal.hud.gov/FHEO903/Form903/Form903Start.action), (3) consulted with a fair housing specialist through HUD (Department of Housing and Urban Development, specifically FHEO, the Office of Federal Housing and Equal Opportunity, enforces the Fair Housing Act, and their toll-free number for Utah is (800) 877-7353, details at http://portal.hud.gov/hudportal/HUD...), and (4) contested the eviction after consultation with a licensed attorney experienced at litigating fair housing act cases.

For the reasons Jamie noted, it is unlikely that the landlord would successfully complete an eviction under this scenario.


Your friendly neighborhood licensed attorney that disputing landlords and tenants paid to protect their interests"


Federal law provides a religious freedom protection that BYU is unwilling to volunteer.

Tuesday, October 15, 2013

Evicted because you changed religions? Welcome to BYU, home of the International Center for Religious Freedom Pharisees

"You left Mormonism for Mohammed? Get out of your apartment!"
Can an LDS BYU student who is excommunicated or resigns his membership be evicted from BYU Contracted Housing?

Answer: Yes.

Today was a strange day. It's a bank holiday, and I work for a bank, so I had the day off: which was fortunate, because I needed a good chunk of time to help out my friend "Matthew." I wrote in a Facebook post:

"Know any current BYU Law students or Provo locals that would be interested in helping a victim of BYU's religious freedom failure? A friend of mine is a current LDS BYU student who's decided to change religions. His stake president yelled and berated him in an interview yesterday and threatened to excommunicate him in two weeks if he doesn't repent. 

Rather than pretend to believe, my friend has decided to resign his church records (though on my advice, he hasn't started the process yet). Either excommunication or resignation could result in my friend being evicted and losing his job in November (he lives in BYU contracted housing and works for BYU), not to mention being blocked from finishing out the semester.

I've done some initial research to help inform him about his options (especially as it relates to the eviction), but the poor guy is young, understandably scared, and getting contradicting information from people. It would be great to pair him with a caring, mature, local advocate that can help him get reliable answers. Please let me know."

Here's the first draft of the referenced eviction analysis, rough though it is, which shows how eviction can result from an LDS BYU student's exercise of religious freedom away from LDS orthodoxy.

Matthew is currently enrolled in normal daytime classes and resides at ____ Apartments, which is listed in the 2013 BYU Housing Guide (
http://housingguide.byu.edu/housingguide/pdfs/HousingGuide2013.pdf) as "BYU Contracted Housing." A typical example of a ____ contract is found here (http://och.byu.edu/PDF/2013-2014Student-LandlordRentalAgreement3.pdf).

The contract, in part, reads:

"I agree to comply with… the Residential Living Standards as listed below (collectively referred to as “Residential Living Standards”)... My violation of these standards shall be sufficient cause for eviction." (Contract)

Thus, Matthew's violation of the Residential Living Standards provides sufficient cause for his landlord to evict. One of the Residential Living Standards is:

"to conduct themselves in a manner consistent with the BYU Honor Code including abstaining from possessing, serving, or consuming alcoholic beverages, tobacco, tea, coffee, or harmful drugs both on and off the premises of Contracted Housing. Involvement with gambling, pornographic, erotic, indecent, or offensive material, obscene or indecent conduct or expressions, disorderly or disruptive conduct, or any other conduct or action inconsistent with the BYU Honor Code, in the sole discretion and judgment of the university, is not permitted on or off the premises of Contracted Housing. " (Contract, emphasis added)

In the case of excommunication or resigning one's LDS membership records, no judgment of the university is needed, since the Honor Code indicates the loss of Honor Code standing is automatic:

"Excommunication, disfellowshipment, or disaffiliation from The Church of Jesus Christ of Latter-day Saints automatically results in the withdrawal of the student's ecclesiastical endorsement and the loss of good Honor Code standing. Disaffiliation is defined for purposes of this policy as removal of an individual's name from the official records of the Church." (Honor Code)

Disaffiliation from the LDS Church, an action Matthew is considering, is an "action inconsistent with the BYU Honor Code" because it automatically results in the loss of good Honor Code standing, and because the Honor Code states:

"The term "good Honor Code standing" means that a student's conduct is consistent with the Honor Code."

Matthew's stake president's decision to excommunicate Matthew would also remove Matthew's good Honor Code standing. Thus, either excommunication or disaffiliation would qualify as a violation of the Residential Living Standards, and thus be sufficient grounds for eviction. In effect, a never-Mormon student can live in a BYU Contracted Housing without special risk of eviction, but a recently resigned or excommunicated Mormon student cannot.

Failing this theory, a landlord could also claim eviction on a separate ground: that the loss of good honor code standing constitutes a change in student status. Loss of good honor code standing results in discontinuation of enrollment:

"A student's endorsement may be withdrawn at any time if the ecclesiastical leader determines that the student is no longer eligible for the endorsement... Students without a current endorsement are not in good Honor Code standing and must discontinue enrollment." (Honor Code)

Discontinuing enrollment is inconsistent with the certification of student status in the Contract:

"I am a full or part-time student of BYU, enrolled in daytime or evening classes."

Further, the contract states:

"I agree to live in Contracted Housing under the principles of the Residential Living Standards, and the gender separation policy and remain eligible as a student as defined in this paragraph." (Contract)

Because the paragraph defines a student as being enrolled, discontinued enrollment places Matthew outside the eligible student status. Further, the contract states:

"I also understand if I am banned from BYU, I am not eligible to live in BYU Contracted Housing." (Contract)

Any change in student status is grounds for immediate termination of the contract:

"I recognize and understand that my Certification of Student Status is material to and relied upon by the landlord in entering into this rental agreement and any misrepresentation found
herein or change in student status is reason for immediate termination of this agreement and such other legal and equitable remedies as the landlord may pursue." (Contract, italics added)."

Thus, the Landlord could evict based on change of student status. The termination of the contract could be triggered as early as the date of discontinuation of enrollment. Because excommunication and disaffiliation automatically withdraw endorsement, the discontinuation date may be the same as the excommunication or disaffiliation date. 


Matthew could be evicted solely due to his stake president's decision to excommunicate him, or solely due to Matthew's decision to formally resign from the LDS Church.

Monday, October 7, 2013

An Open Letter to Maurine Proctor and Those Pressing Against Ordination

By Rebecca Johnston

October 1977

An Open Letter to Maurine Proctor and Those Pressing Against Ordination

Dear Tyrone,

As the co-founder of Ordain Black Men, you are planning to march with a group of  black men to the general priesthood meeting of the LDS Church Saturday night to press for entrance. I don’t believe that you think entrance will actually be granted, because your requests for tickets have already been denied, so your motives must be for something else.

It seems clear that you are hoping for media attention for your cause, that you want to agitate or stir up emotions to support your goal: “Mormon black men seeking equality and ordination to the priesthood.” Perhaps you are hoping that creating a high profile will draw others into your ranks and that your numbers will swell.

You are by profession an international human rights attorney. For your career, you have learned an adversarial paradigm. Your world-view is based on clamoring, arguing and mounting evidence for the causes you believe. It is toe-to-toe, nose-to-nose, making points with contention and argument, reason and will. It’s not just the way of the attorney; it is the way of our times. This is a generation of people trained at divisiveness and attention-mongering for their viewpoint. Our public discourse these days is discordant. That might work well in furthering some causes in a court of law or even in the court of public opinion, but now we are talking about the Church.

If you are a hammer, then the whole world does indeed look like a nail.

In this case, however, if you choose to be a hammer, just what are you hammering against?

Believers understand that Jesus Christ is the head of this Church. He is the author of the doctrines and the organization, how and when things are taught and revealed. The Lord has given us prophets and apostles through which he communicates his will and reminds us, “whether by mine own voice or by the voice of my servants, it is the same” (Doctrine and Covenants 1:38). That is a bold doctrine, stating without hesitation that the Lord’s appointed prophets speak for him, which I believe.

This leads me to ask about your very public motives. If you have a question about black men’s place in the divine scheme of things, that is understandable. Of course, we seek answers to questions that impact our identity and understanding of ourselves.

Those who defend what you are doing like to point out how many revelations came because people brought questions to Joseph Smith and he, in turn, took those questions to the Lord. We think, for example, of Joseph Knight, David Whitmer, John Whitmer and Peter Whitmer (D&C 12, 14, 15 and 16) who each received revelation through the prophet because they asked him to query.

In each case, however, their query was about aligning themselves more perfectly with the Lord’s will for them. Their questions were essentially, what can I do to please the Lord? How can I serve Him better? What does he want of me? Their questions were asked in a spirit of humility, understanding who sets the terms of their relationship. Just as with our covenants, where we have made promises with the Lord in which he sets the terms, so it is with these questions asked and answered by Joseph Smith. The understanding is clear that those who had questions were stepping forward in a spirit of meekness striving to understand what the Lord wanted of them.

So I have a hypothetical for you. I wonder if you had the opportunity to have a private meeting with the prophet and were able to press for black men’s priesthood ordination and he answered that the Lord had said “no” would that be enough? If you asked him specifically if he had prayed about black men’s place in the kingdom and he said, “Yes, and what we have reflects the Lord’s answer,” would that be enough? With those answers, would you disband your group and go home?

Would you say to those whose profiles you are gathering, those who are planning to march with you to the Conference Center that the prophet has spoken? Go put your energies somewhere else?

I suspect not. This is the heart of what troubles me about your choice. You come from what I believe is a faulty assumption about the Kingdom of God on the earth because you are applying a secular paradigm. In the world, he who has the loudest voice and is clever about applying the most pressure often carries the day. Your agitation for ordination assumes that either the prophets will respond to pressure or that the Lord will. At the very least, it assumes that you have a better idea and are in a superior position to understand what will empower black men.

It assumes that the prophets are too spiritually dull or backward to see the important questions or to ask them. It assumes that through all the centuries of recorded spiritual history, the Lord forgot his black sons and their development.

There is a twist of intellectual dishonesty at the heart of this. You press for priesthood power, I assume, on the grounds that it is truly the power of God on the earth, yet at the same time you refuse to acknowledge that same power to act, discern, and reveal in the Lord’s anointed prophets. The implication of your agitation is that you don’t believe that the prophets act with real authority—the very priesthood power you are seeking for yourself.

That just makes no sense. Your motives become suspect. A large gap looms between a question that seeks for expanded understanding and confrontation that seeks for its own way.

I think it is the temptation of this fallen world to seek to instruct the Lord. Most of us have times, when assessing our own lives, we are certain we know more clearly than He does what He should do for us and what is necessary for our well-being. On the most personal level, I have found that when I take that approach to the Lord, I become divided from him. It is fundamentally a refusal to comprehend who He is and who I am, his glory which is unspeakable and my own complete dependence on Him even for the breath I draw.

How odd it is for the child to seek to instruct the Father. It is the same for any who would seek somehow to right the Church or steady the ark. There is a presumptiveness and arrogance about this, which is troubling. There is also, at its heart, an attack upon the idea that the Church is led by Jesus Christ and his servants.

Another hypothetical. What if the prophet invited you into his office, listened to your demands to receive the priesthood and then said, “Because you and your followers want this and have stirred up the world, it’s yours.” If that happened, what an insecure footing we would all suddenly be on. Instead of God being the sure foundation of this Church, the great immovable I AM, we might suspect that instead it is a Church dictated by white men—or black men.

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