by Nate Schilt

As the knight writers of Adventist progressivism stampede into the legal fog they have created in order to find moral illumination – before the echoes fade from their triumphal proclamations: “We have the Truth, the moral way is clear” – let’s take a closer look at where they have come from and where they are going before we decide to follow. I suspect we’ll find a lot of indignant, self-righteous, legalists, unable or unwilling to even acknowledge the moral clarity they claim to have discovered can only be seen with progressive blinders.

A number of arguments have been advanced on Facebook, Twitter, and the blogosphere to morally and legally indict the General Conference (G.C.) and La Sierra University (LSU) for using the evidence of an inadvertently recorded, carelessly distributed, confidential conversation to induce incriminating admissions and resignations from what are becoming known as the “La Sierra 4” (LSU4). I will not dwell long on the legal argument since, based on the rationale advanced thus far, I believe it to be utterly without merit.

It goes as follows: California Penal Code Section 632 criminalizes the recording of a confidential communication without the knowledge and consent of the participants. P.C. 632 evinces a strong public policy in favor of privacy protection. That public policy might lead a court to justify the extension of P.C. 632 to individuals who transcribe, record or otherwise use the recording of a communication intended to be confidential, regardless of whether the recording itself was made in violation of P.C. 632, and regardless of whether reasonable steps were taken to protect and maintain the privacy of the communication.

Thus, the argument concludes, Church and University officials who used the recorded evidence to obtain admissions and resignations from the LSU4 might well have been guilty of criminal offenses. “Mind you,” the knight writers benignantly protest, “we’re not accusing anyone of anything. We’re just suggesting…er, you know…there really might be a reasonable legal argument here. And…um…we think it would probably be a good idea for certain Church and University officials to start lawyering up – or at least repent and recant.”

I believe this argument for criminal liability is arrant nonsense. I am hardly naïve about the penchant judges have for imposing their moral values on society, regardless of public will, legislative basis, or the Constitution. But when it comes to criminal laws, the creative impulses of the courts over the past 50 years have always gone in the direction of reducing criminal liability, expanding rights of the accused, and narrowly construing criminal statutes. The wide range within which tabloid journalism, paparazzi, and private investigators operate suggests a public policy that not only protects privacy, but also narrowly circumscribes the sphere in which privacy invasions can be subject to criminal sanctions. Most privacy expectations are not reasonable, and almost always – as occurred in the case of the infamous LSU4 recording – careless disclosure vitiates the legal privacy claim.

Because the criminal theory strikes me as such a far-fetched and fatuous diversion, I tend to suspect those who advance it either have too much time on their hands or, more likely, they have an agenda to create populist talking points for progressives that will make their moral case against the G.C. and LSU administration appear more compelling.

Every invasion of a privacy expectation is not an occasion for moral flagellation. Would we condemn a woman for hiring a private investigator when she reasonably suspects her spouse of infidelity? Would we condemn a husband for confronting his wife for infidelity when he finds evidence in a diary which has been carelessly left by her bedside? What are the moral implications of reporting and/or acting on what was clearly intended to be private, but was carelessly exposed through no wrongdoing of the 'exposee?'

Suppose you are a male, and your attractive female neighbor neglects to fully close the curtains in her bedroom window, inadvertently exposing herself to your view as she is disrobing. Would you be within your legal rights to take a photograph? Sure. But it would be morally reprehensible. And the fact that you refrained from illegally installing hidden cameras in her bedroom would hardly attenuate your moral culpability.

But suppose you had instead observed the neighbor lady mercilessly beating her toddler through that window, with the same expectation of privacy. When you grabbed your camera to take a picture, and called 911, would we not agree that invasion of that privacy expectation was a moral duty?

Those are easy cases. Now, let’s change the picture. The neighbor is your SDA pastor. He closes the curtains so that he, his wife, the head elder and the elder’s wife can share a bottle of wine, undetected. But there’s still an opening in the curtains, and through that opening, from your home, you observe the forbidden indulgences. Can we at least agree now that the moral question has become a bit murkier? If you said, no, you are hereby excused from reading further. Now let’s change the hypothetical just slightly. You are the conference president. You didn’t observe the drinking, but the neighbor who did has presented you with the photographic evidence of what he saw from his home. The neighbor clearly expects you will act on this information.

Now call me a moral cretin if you wish. But I think the conference president has a tough choice. On the one hand, he can conscientiously ignore the evidence on the grounds that what the pastor and church members do when they have a privacy expectation is nobody’s business but their own. This seems to be the SDA progressive position. But this option will outrage 90% of the church members who use common sense rather than moral micrometers to set standards and prioritize moral and religious values. They tend to believe that a pastor and head elder being comfortable with a lifestyle that includes alcohol consumption is a bigger deal than observing, recording and reporting what the pastor and head elder assumed was totally private. On the other extreme, the conference president can summarily fire the pastor, strip him of his credentials and recommend that all four imbibers be dis-fellowshipped.

Do you see any parallels here? It is tempting to look at the misfortune suffered by the LSU4, and forget that harsher consequences could have been imposed. They could have been fired from all positions with the University, including their faculty appointments. The transcript of the tape could have been released to the public. The G.C. could have attempted to make a spectacle of the LSU4 and embarrass the University. Wisely, none of these actions were undertaken. Yes, I know. For a liberal, this argument is the rough equivalent of justifying sleep deprivation for 'freedom fighters' by the CIA on the grounds that the CIA could have resorted to waterboarding. You’ll just have to indulge my penchant for the world of common sense. You’d think in 35 years of lawyering I would have been able to escape that benighted redoubt. But I haven’t.

I do not think one can reasonably argue, given the copies of the recording that were floating about, that the G.C. or LSU could just do nothing once the evidence came to their attention. Howls of protest would have arisen from Church members who think the wrongdoing of the LSU4 should eclipse and render moot any moral concerns about reliance on evidence that would never have come to light but for the carelessness of one of the LSU4.

In conclusion, reflect with me about what might have happened had the LSU4 asked me to be their attorney before going into the fateful meetings on June 10. I would of course have told them not to talk and not to resign. We would have demanded due process and a hearing, should attempts have been made to terminate them. My responsibility as an attorney would not have been to the Church or to La Sierra. My only concern would be the best possible outcome for the LSU4. I do not know what procedures La Sierra has in place for disciplinary action. But my suspicion is the academicians who would probably end up hearing the case would be very receptive to the argument that it would be unchristian and immoral to use the recording against these gentlemen. Do I agree with that argument? No, but I think it would have prevailed, and I think these men would have 'walked'. I believe that knowledgeable experts presently advocating for them think exactly the same thing, and that is why they want to turn back the clock and undo the resignations.

However, success in vacating the resignations and defending the LSU4 would, in my opinion, grievously injure both La Sierra and the larger Church. It would isolate La Sierra and alienate it from the overwhelming majority of Church members who view alcohol as one of the seven deadly sins of Adventism (yes, I know there are really many more than seven). It would destroy trust at a time when trust is already in short supply. La Sierra needs the Church, and the Church needs La Sierra. It pains me greatly the recording was made and that it came to light. I feel terrible for the gentlemen. But intellectual honesty prevents me from joining the progressive lynch mob, which, like conservative fundamentalist lynch mobs, begins with politicized, a priori notions about good and evil that distort and oversimplify nuanced, complex moral issues. Given many bad and difficult options, asking for the resignations was the wisest course. And although supporters of the LSU4 are angry, and the LSU4 now appear to be experiencing resigners’ remorse, I firmly believe that resignation was the honorable and right thing to do under the circumstances.