What I Learned about Mormon Courts (and the Writing of Mormon History)

April 13, 2009 | 17 comments
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For those who are interested in Mormon legal history, my article “Preaching to the Court House and Judging in the Temple” was just published in the most recent issue of the BYU Law Review. (You can download a copy of the article here.) This article provides my own take on the rise and fall of civil cases in church courts in the nineteenth-century. Of course the story of how nineteenth-century Mormons took lawsuits over broken contracts, wandering cows, disputed property lines, and the like to their local bishops has been told before, most elaborately in Ed Firmage and Collin Mangrum’s book Zion in the Courts, which was published about twenty-years ago. Here is where my take differs from previous interpretations.

First, I think that the rise of Mormon courts cannot be told as simply a Mormon story. Latter-day Saints were not the only religionists taking civil cases to church courts. Indeed, for a wide swath of Protestantism — essentially Calvinists and folks coming out of the Radical Reformation like Baptists and Quakers — the notion that suing before the ungodly should be replaced with suing before the church was common place. The Mormon experience should be seen as an extension of this tradition, albeit and extension that ultimately resulted in a set of institutions with a distinctively Mormon flair. Still, at the beginning of fthe process, Mormons look almost exactly like Quakers or Baptists on this issue, which given the fact that so many Mormon converts were Quakers and Baptists is hardly surprising.

Second, I think that much of the Mormon critique of litigation revolved around litigation as a civic spectacle. What I mean by this was that a large part of what folks like Brigham Young hated about lawyers and litigation was not simply the expense or the bad feelings. It was the way that litigation functioned as public celebration of a particular vision of civic life, one that was brawling, individualistic, and frequently drunk. The point is important because litigation had a more central civic role in the early nineteenth century than it does today. Courts were one of the few public manifestations of the state in an era of dramatically smaller government, and people regarded watching litigation as a major pass time. The emphasis on litigation as spectacle allows us to understand better what Mormon courts were doing. They were not simply trying to maintain good feelings or apply different substantive rules than those found in the secular courts. Indeed, in many ways they were hostile to the very idea of applying rules. Rather a key part of what they were doing was creating a counter spectacle, one that centered around Christian narratives of sin, redemption, and reconciliation, rather than the dominant narratives of democracy and individualism.

Third, Mormon lawyers did not take their designation as social parasites lying down. Rather, from the beginning they sought to create a religiously legitimate narrative of what they were doing, one that centered on the notion of the learned professional as a high-minded peace maker, rather than a brawling courtroom charlatan. This counter narrative within the Mormon discussion must also be seen as more than simply a Mormon story. One of the things that Mormon lawyers did was to adopt and “Mormonize” (if that is a word) the developing professional ideals of the bar, ideals that were tied closely to replacement of law office training with law school training. Ultimately, the Mormon lawyers’ counter narrative came to be adopted by Church leaders, including Brigham Young.

Fourth, just as the rise of Mormon adjudication can’t be seen as a purely Mormon story, so to its decline must be seen in a broader context. The end of the civil jurisdiction of Mormon courts is generally told as part of the broader retrenchment of Mormon society in the wake of the Manifesto and the decline of theocratic Zion-building. 1890, however, is not a particularly important date if one looks at the practices of Mormon courts. Indeed, in the late 1910s James E. Talmage was preaching against secular litigation and counseling members to take their disputes before the bishops. Likewise, I have copies of pre-printed forms from the 1920s that members were supposed to use to commence church lawsuits against other members. To be sure, Mormon hostility to the common law was a bone of contention and civil litigation in church courts emerged as an example of Mormon abuses in Utah during the Smoot hearings. However, a more important source in the decline of church-based litigation was simply the changing nature of litigation generally as the nineteenth century progresses. Law became increasingly technical, impersonal, networked, complex, and remedially demanding. The church court system that did such a good job resolving disputes between neighbors over a wander cow did not function well in an impersonal credit economy where many of the primary actors were corporations.

The Mormon court system is a nice example of how deepening our understanding of Mormon stories, institutions, and practices may — ironically — require that we view them as less Mormon. The New Mormon History ushered in by Arrington and his disciples was — for all of its insistence on academic professionalism — in many ways an inward looking program. This is not meant as a criticism. We are all massively in the debt of those intrepid intellectual pioneers who excavated underneath the traditional hagiographies to nail down the wealth of concrete detail and complexity in the Mormon past. We owe to these scholars the more fully rounded vision of the Mormon past that we now have. Increasingly, however, I think that value added in Mormon history will come not from nailing down the specifics of our stories in ever more exacting detail. Rather, it will come from trying to connect Mormon stories to those that are not overtly about the Latter-day Saints. Hence, to understand the nineteenth-century church court system we must see it not simply as a reflection of Mormon Zion building and the retreat from Mormon theocracy. We must also see these courts as part of an Atlantic story of disciplined oriented Protestantism and a window into understanding the contested and shifting role of litigation in American public life.

17 Responses to What I Learned about Mormon Courts (and the Writing of Mormon History)

  1. Guy W. Murray on April 12, 2009 at 11:19 pm

    Interesting historical information on the early Mormon courts and legal history. What’s your take on how the practice coincided with D & C 134, particularly vs 3, 10, 11?

  2. Adam Greenwood on April 12, 2009 at 11:42 pm

    Nate O.,
    would it have been that hard to tell members to only come to the church courts for personal matters? Make corporations functionally gentile, in other words.

    If not, then I wonder if the decline of Mormon courts was as much about the rise of mormon minority populations outside Deseret. No real point in having a church court when 99% of your legal needs are going to be with non-members.

    That said, what about family law? This is one area where you’d think some kind of church court system could work all right, even to the modern day, and where, in the nature of things, most of the Mormons who would be inclined to use such a system would be in Mormon families. In a small way, LDS family services still does this with its rules about who can adopt.

  3. Nate Oman on April 13, 2009 at 8:43 am

    Adam: They actually struggled with corporations and for a while soldiered on with the position that church courts should not take jurisdiction over cases involving corporations. One problem was that there were still cases against individuals who claimed as a defense in church court their fiduciary responsiblities. The FP actually had to get legal counsel on how to decide these cases.

    Family law is a tricky case because many of the disputes involve the allocatio of property. Church courts had no ability to provide in rem remedies that would transfer or quiet title. As a result, the FP tried to extricate Church courts from all land cases. Likewise, Church courts lacked the authority to dissolve marriages, which also could not be dissolved by the consent of the parties, so simply telling them to, say divorce on pain of excommunication wouldn’t work. They had to go to court.

    There may be something to what you say. Without fuller access to records it is hard to say exactly when and where the declined happened, although I do know that it happened in different places at different times.

  4. Nate Oman on April 13, 2009 at 8:45 am

    Guy: the procedures in 134 were followed in most of the High Council cases that I have seen records for. On the other hand, there was a lot of adjudcation outside of high councils — e.g. bishops courts and priesthood quorums. When you realize that many High Council proceedings were public, I think that the procedures in 134 take on a slightly different meaning. They were creating a kind of spectacle, i.e. the enactment of a certain set of values through a public ritual.

  5. clark on April 13, 2009 at 11:06 am

    Nate, the ability of Church courts to adjudicate marriages changed when? I assume in the early Utah period that was handled by Church courts. I’d have assumed that it didn’t change until after the manifesto but perhaps it was different?

    What about divorce in polygamous relationships after 1894?

  6. Nate Oman on April 13, 2009 at 12:19 pm

    Clark: I don’t really know because I haven’t seen the documents, which are restricted. Prior to 1862 it wasn’t a problem because under Utah law the Church had the legal ability to adjudicate divorces and its decisions were given legal force, at least in theory (I’ve not seen any cases in which the issue arose). Also, because polygamous marriages after 1862 didn’t exist as a matter of law, the Church courts were the only place where they could be dealt with. I haven’t heard of any adjudication of disputes regarding polygamous families after 1890, but that doesn’t mean much.

  7. Mike McBride on April 13, 2009 at 12:42 pm

    Nate,

    Could you speculate a little on why you think Mormon courts are never used for civil matters while Sharia courts are increasingly used to settle certain civil matters (divorce, etc.) for Muslims? E.g., in the UK it was recently held that Sharia court rulings will be respected by UK courts if the parties apply for it and so long as no rights were violated.

    Would it be the lack of centralized admin in Islam which, as would likely be the case for Mormons, would need to regulate it? That the minority status of Muslims differs from that of Mormons, who want to be mainstream, etc.?

  8. Nate Oman on April 13, 2009 at 12:49 pm

    Mike: Well the church courts DID resolve civil disputes for at least seventy years.

    I do think that there is an interesting comparison to the Mormon experience and shar’ia, which I talk about in my paper. Here is the gist of my argument: Mormons never developed an elaborate jurisprudence, and the sense of a set of substantive rules rigorously worked out from scriptural or other texts. Islam, in contrast, created the elaborate interpetive system of the usul al-fiqh to provide juridical content for shar’ia. I think that the crucial difference here was the presence of a hierarchy in Mormonism. In a sense, Mormons used institutions to solve the problems that Muslims used juridical interpretation to solve. Hence, the Mormons were hostile to the generation of rules precisely because they didn’t want an autonomous body of law that would compete with the authority of church leaders.

  9. Mike McBride on April 13, 2009 at 1:05 pm

    Right, so what I meant was why we got out of the court business and never do them now while Sharia courts are on the rise.

    Yes, the different institutional structures seem to be a key difference. Actually, the rationalization of Church practices seems to be part of the story. For example, bishops are supposed to forward members on to LDS Family Services instead of assuming too large a role as marriage counselor. If we learned that bishops aren’t the best marriage counselors then maybe we’ve also learned that their not the best judges in all matters. Moreover, that would put bishops in the position of making rulings that would differ from civil courts. It would just be a big mess.

  10. Steve Evans on April 13, 2009 at 1:16 pm

    Nate, don’t you think the Mormon/shar’ia difference is only a matter of time? That is, we didn’t have the time and isolation necessary to produce an usul al-figh; I don’t know that it’s a matter of a cultural hostility to rules or institutions providing the solutions so much as history forcing the path.

  11. Nate Oman on April 13, 2009 at 1:41 pm

    Steve: That may be right. There is, however, some really striking evidence of hostility to rules and in some cases a conscious retreat from rule making. Likewise, if you look at Islamic jurisprudence one of the striking things is that there are huge swaths of territory about which it has almost nothing to say. In other words, the drive to systematize the jurisprudence seems to have proceeded from theological imperatives rather than from the accumulation of decisions forced upon the jurists by sheer weight of time.

  12. Nate Oman on April 13, 2009 at 1:45 pm

    Incidentally, in legal discussions my understanding is that we generally mis-use the term “shar’ia” which doesn’t necessarily refer to the detailed rules of Islamic law. For those rules there is a different term — fiqh. Shar’ia literally means “a path to water” and its connotation is more like the word Gospel for Mormons. Sometimes the term “gospel” refers to the intricacies of Mormon practices but more often we use it to refer to some cosmic divine way that sits above and behind our actual pratices. Likewise, one can affirm the shar’ia while rejecting particular fiqh.

    (At least that is my understanding; any real Arabists amongst our readers feel free to correct me.)

  13. J. Stapley on April 13, 2009 at 2:11 pm

    Nice work, Nate. Has this published version changed much from your previous draft that you had up on SSRN?

  14. Nate Oman on April 13, 2009 at 2:12 pm

    The published version, which is now up on SSRN, contains a couple of chunks of commentary that weren’t contained in the original version that I posted.

  15. Raymond Takashi Swenson on April 13, 2009 at 9:36 pm

    Nate: I really appreciate your comments about the meaning of church courts. I agree with you that the Salt Lake High Council definitely did not seem to want to create a body of “common law”. Even though each hearing was transcribed verbatim, I don’t recall a single instance in which a prior hearing was cited, unless it involved the same parties and the same matter. While some of the hearings may have been public, I don’t recall, in either my own research or in the Firmage and Mangrum book, any effort to publish the decisions of the High Council, not even in summary form, let alone as a precedent that members could look to in order to understand rules of behavior in their civil law relationships with each other.

    The injunction of Paul in 1 Corinthians 6:1-8 is out there for all Christians to see. Paul condemns taking another member to court, and teaches the members to have someone in the church judge their disputes. I think it is clear this passage influenced the Latter-day Saints, just as it continues to do for other Christians. Back in 1978, I was representing the Air Force in a grievance arbitration by an employee at the Pentagon. The personnel supervisor who was my client was also active in his Protestant church. In the course of our conversations he told me that his own congregation tried to practice 1 Corinthians 6 for their membership.

    It is clear that our modern legal disputes often involve third parties, including government (which has to endorse any change in legal status), including taxing agencies, insurance companies, and secured creditors who hold title to our houses and cars, credit reporting agencies, etc. It is of course always possible for many of us to reach settlements that avoid formal civil litigation, but to make those settlements effective in future situations, such as enforcing a waiver of claims, they need to be documented with formal written contracts, and often filed with courts.

    One of the other issues is that, with the plethora of wards and stakes, taking another church member to court in his home stake would mean taking your case to a high council that knows the defendant but not you. If the defendant has been an active member in his own ward, he will have credibility, but you will walk in with none.

    I think another reason the church does not encourage the use of bishoprics and high councils to settle modern legal disputes is the recognition that most ecclesiastical officers have no idea what the law expects of people, and could with the best of intentions render a judgment that is opposed to what would have been the result under established civil statutes and common law. The losing party would likely be offended, not to mention potentially disciplined with disfellowshipping if he refused to obey a decision that clearly was contrary to norms of civil law. Frankly, it is not clear that this kind of outcome is of any value whatsoever to the church or the individual members involved in the dispute. Many members would perceive the bishop as acting in areas where he had no real competence, and which were, most fundamentlaly, unrelated to the gospel and God’s law.

    I think reinforcing a civil law role for bishop courts and high councils would be a distraction from the work of bringing members to perfection and bringing nonmembers to baptism. Frankly, we all know of some Latter-day Saints who are naturally litigious and would seek to abuse a church court system, as they do the civil courts.

    I think a specific indication of the Church leadership to clearly end a civil role for High Councils and bishoprics was the decision to rename them from “church courts” to “church disciplinary councils”, something that happened (as I recall) within a year after my 1978 article on church courts was published in the Utah Law Review.

  16. Steve on April 14, 2009 at 7:18 pm

    Anybody have an opinion regarding bishops or high councils acting in a purely advisory capacity in disputes where the facts are not in question? An LDS friend of mine who rented an apartment to a member of her ward. When they had a dispute, they sat down with their bishop and, with his guidance, reached an agreement. The dispute could have been resolved by judicial holding, but the amicable resolution these ladies reached with the aid of their bishop rendered such a complicated, expensive, inefficient, and downright saddening procedure unneccessary.

    I’ve never been in a bishopric or high council, and after 13 years in the Church I am still woefully in the dark about Church organization. Is there some formal church procedure of which members can avail themselves to resolve disputes with the non-binding ADVICE or ASSISTANCE (not judgment, ruling, etc.) of local Church leaders?

    One does not need a knowledge or understanding of the legal remedies and defenses that the parties to a legal dispute may be “entitled” in a court of law to apply basic concepts of common sense and morality to most real-world disputes (at least where the facts aren’t disputed). The law is technical, formal, and cold, as well it should be–attemts to make it otherwise almost invariably have absurd results. Where, however, we’re dealing with parties from the same religious community with (presumably) a common set of values, who (presumably) would like to achieve as close to a win-win result as possible, I think such an advisory forum would be quite valuable.

    Here’s what I picture: the parties, who are members of the Church and have unanimously requested the Church’s aid in resolving a dispute, sit down with the bishopric/high council/what-have-you. The meeting begins with a prayer, offered by one of the advisors. The parties are informed that the purpose of the meeting is to help them reach an agreement, not to issue a ruling, and that any advice given does not have the force of law or the official sanction of the Church. The parties, in turn, present the facts giving rise to their dispute. If the parties disagree as to the facts of the matter at issue, then reasonable efforts are made by the advisors to help the parties clarify the situation. If no such concord can be reached, the meeting goes no further. No advice is given.

    If the parties agree as to the facts of the matter at issue, then the advisors draw upon their knowledge of the scriptures, Church doctrine and teaching, reason, and the guidance of the Spirit in attempting to help the parties reach a resolution (settlement?) of their dispute. If such an agreement can be reached, the parties are reminded that their agreement is not yet legally binding, encouraged to privately pray about it (and sleep on it), and then “steered in the right direction” (if possible) to fulfil what (if any) legal formalities are necessary to make their agreement legally binding, should they choose to do so. The meeting concludes with a prayer, again by one of the advisors.

    Any thoughts?

    I can see the outrage already!

  17. Nate Oman on April 15, 2009 at 9:29 am

    For what it is worth, the General Handbook of Instructions seems to take the position that bishops qua bishops should not try to act as mediators in civil lawsuits. I quote the passages from the GHI in the final section of my article.