About that corporation:

There's a myth I keep hearing that lives at the exciting intersection of Mormonism and corporate law. It goes something like this:

The Church of Jesus Christ of Latter-day Saints doesn't exist.  It has been replaced by a corporation, and it is governed not by its own doctrines but by a corporate charter.

It's false, and I want to explain why.  But first, here's why it matters.

Succession in the Presidency of the Church

One possible area of conflict between LDS Church doctrine and a corporate charter is this: who will be the next President of the LDS Church?  The answer, according to church doctrine, relies on a complicated process involving the presiding councils of the church.  Here are the councils that matter:

Screenshot from the LDS Church website August 16, 2015

The President of the Church is recognized by the LDS Church as the successor to Joseph Smith, and colloquially referred to as "the Prophet."  He and his counselors form the "First Presidency," which is the governing council of the church.  The counselors are traditionally (but not always) selected from the Quorum of the Twelve Apostles (Q12).  "Quorum," incidentally, is used as a synonym of "council"; a quorum to do business, in the ordinary sense, requires only a majority if circumstances prevent the full council from meeting.  Thus, if the Prophet is disabled, the Quorum of the First Presidency can still take care of the business of the church.

The Twelve Apostles are currently short by two due to recent deaths. Normally, the Q12 has twelve members who are not serving in the First Presidency.  By tradition, the senior member of the Quorum (by length of service in the Quorum, not by age), is the President of the Quorum of the Twelve.  The Q12 is "equal in authority" to the First Presidency, and major questions are considered by the two councils together (sometimes referred to as the Q15).

Upon the death of the President of the Church, the First Presidency is dissolved, and the counselors re-take their places in the Quorum of the Twelve (assuming that they were members of the Q12 in the first place).  The Quorum of the Twelve is then the presiding council of the LDS Church until it reorganizes the First Presidency.  While the Q12 is in charge, the President of the Quorum of the Twelve, as President of the Quorum, is sort of a de facto President of the Church.  In all 15 cases since the death of Joseph Smith, the President of the Quorum has become the new President of the Church when the First Presidency was reorganized.

They all serve for life.  Barring occasional drama such as Apostles being excommunicated (very rare, but there were some difficulties about polygamy), vacancies typically arise only when someone in the Q15 dies.  It all seems a bit mechanical, this combination of scripture and tradition that results in a Prophet being selected entirely based on who has died since his call as an Apostle, forty or so years earlier, but the teaching is that the hand of God is still present in determining who receives that first call, and when to call them home.

The result is that the President of the Church, and the President of the Q12 (who is presumably next in line) are usually very old men.  The accumulated wisdom of age (and many, many years in church service) is respected, but there are also accompanying difficulties.  The Prophet of my youth was too unwell, for many years, to actually speak to the church.

Until recently, the health of both the Prophet and the President of the Twelve didn't look good. President Monson (the current Prophet) is clearly having increasing difficulties, and President Packer (the recently deceased President of the Twelve, and a childhood survivor of polio) appeared incredibly frail, and could barely talk.  It would not have been kind to make President Packer the new Prophet, had President Monson died first.  (Progressive Mormons would also not have welcomed adding all of President Packer's teachings, as an Apostle, to the Teachings of the Prophets curriculum, but that's another story.)

Some of us turn to speculation: how much of the above is dictated by LDS scripture, and how much is tradition only?  I can't find any commandment in the standard works of LDS scripture for members of the Q15 to serve for life, or even for the President of the Twelve to become the new President of the Church.  So, is it possible that we could have emeritus Apostles, or a retired Prophet, and get some young blood into the Q12 without waiting for someone to die? Is it possible for the Quorum of the Twelve, after the death of the Prophet, to reorganize the First Presidency with someone other than the President of the Twelve as the new President of the Church?  Cynics turn to the myth they believe in and say "No -- it doesn't matter what is or isn't in LDS scriptures; it has to be done the way it's always been done because a corporate charter says so."

Corporations Sole

Wait -- why is there a corporate charter involved?  Can't a church select a new president according to its own doctrines? (It can).  There is indeed a corporation involved, though.

In an era where corporations could only really be formed for business purposes, a lot of other associations didn't have a corporate form.  Labor unions, for example, are traditionally unincorporated.  For churches, clergy members traditionally held and managed the property of the church.  However, it's undesirable to have church property pass under a priest's will, when the priest dies.  One solution is the "corporation sole."  It's like a corporation, but with a single office, and no shareholders, directors, or bylaws.  There are still articles of incorporation (i.e., a charter), but they can be very brief. The incumbent, alone, simply is the corporation.  Upon the death of the incumbent, however, property held by the corporation (and not personally by the incumbent) is still held by the corporation, managed according to the articles of incorporation during the interim, and eventually held by the incumbent's successor in office.  It's a convenient way for church property to be held continuously, without regularly going through probate.  Naturally, the corporate charter will include rules for succession (or winding up, if there is no successor).

LDS Corporate Structure

The LDS Church is much bigger than one priest or parish, and has a complicated corporate structure. The church itself used to exist in a corporate form in the United States, but it was dissolved as a result of the Edmunds-Tucker Act, as a penalty for polygamy.  Since then, I don't think the church has had a corporate form in the US, although individual congregations or other organizations may be incorporated in foreign countries that require it.  There are, however, a couple corporations sole associated with the LDS Church: the "Corporation of the President" ("COP"), and the "Corporation of the Presiding Bishop" ("CPB").  I'm not exactly clear on the division, but if Wikipedia is correct, the COP holds money and donations, and the CPB holds real property.  Deseret Management Corporation is a regular corporation that holds the Church's for-profit businesses.  Any number of other corporations (Intellectual Reserve, Inc., for intellectual property; Property Reserve, Inc., for property management, Deseret Book, etc., fall under those three umbrellas)

However, all that property holding by corporations, for the Church, doesn't mean that the Church fails to exist.  The US Supreme Court has described LDS Church structure thus: "The CPB and the COP are religious entities associated with The Church of Jesus Christ of Latter-day Saints (Church), an unincorporated religious association."  Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (emphasis added).  Now, it's not like Supreme Court Justices are necessarily experts in LDS corporate structure, but it was relevant to the case -- you have to know who to sue if you are fired by Deseret Gym.  The Court was briefed by notable Mormon and former Solicitor General Rex Lee, who I don't imagine would risk his credibility by getting the details wrong.

Note that description: the LDS Church is an "unincorporated religious association."  Like a labor union, however, it still exists, and consists of its members, without necessarily having a separate legal existence.  Like any unincorporated association from your neighborhood book club on up, the LDS Church is governed by its own rules and officers, not by a corporate charter.  As Christians are the body of Christ, this makes sense: the body exists in its members, not as some noncorporeal fictional person created by state law.  Of course, all decisions might be made by the people in governing committees, and submitted to the members for a vote that's kind of pro forma, but there are a lot of associations (incorporated or not) that operate like that.

The Corporate Charter

So, the charter for COP has to say something about who the successor is, though, right?  Well, it turns out there's a copy of the charter online.  (I have no idea if that's really genuine, but no reason to believe it's not.  That's the document the believers in this particular myth all seem to point to, and if you were going to fake it to support their point, you could certainly make it support the point more clearly.  If you want a guaranteed genuine copy and don't mind figuring out which document to download from Utah's online repository (go here, and click on "View Filed Documents"), let me know what you find.)

Here's what that charter says about succession:

The title of the person making these articles of incorporation is "President of the Church of Jesus Christ of Latter-day Saints." He and his successor in office shall be deemed and are hereby created a body politic and corporation sole with perpetual succession, having all the powers and rights and authority in these articles specified or provided for by law. But in the event of the death or resignation from office of the President of the Church of Jesus Christ of Latter-day Saints, or in the event of a vacancy in that office from any cause, the President or Acting President of the Quorum of the Twelve Apostles of said Church, or one of the members of said Quorum thereunto designated by that Quorum, shall, pending the installation of a successor President of the Church of Jesus Christ of Latter-day Saints, be the corporation sole under these articles....

In plainer English: The successor to the office of President of the Church is the successor for the COP.  In the interim, an Apostle manages (i.e., is) the COP.  There's nothing about serving for life; in fact, it anticipates that the President of the Church may resign.  There's also nothing about the President of the Twelve having to succeed to the office of President of the Church.  Even in the interim between church Presidents, it can be any member of the Q12 who has control of the corporation.

I haven't seen the charter for the CPB, (notably, succession to the office of Presiding Bishop is a lot simpler), but I suspect it's similar -- when one Presiding Bishop leaves, the new Presiding Bishop takes over CPB, and there's someone for continuity's sake in the interim.  Why do I suspect this, sight unseen?  Because the LDS Church employs/retains some pretty good lawyers, who aren't complete idiots! OF COURSE they're going to leave the corporate charters as broad as possible!  They don't want to get in the way of the Church!

Even if the charter for the COP said something more about succession to the Presidency of the Church, it wouldn't really be a big deal.  Normally, amending a corporate charter is a big headache: the board of directors has to propose the amendment, and the shareholders have to vote to approve it. (Or something like that.  It's been a while since Business Associations class in law school.)  With a corporation sole, however, there's only the one person.  With no board and no shareholders, it's trivially easy to do anything, including amending your corporate charter.

Now, if you're concerned about corporatism in the LDS Church -- that the Church looks and acts like a faceless bureaucracy -- you'll likely find me sympathetic.  But can we stop repeating the myth that everything is really determined by some corporate charter?  The idea leaves no room for scripture, innovation, inspiration, or revelation.  It's about the most cynical thing a Latter-day Saint could believe about the Church and the work of God in it.