SALT LAKE CITY (AP) - An internal tug-of-war over control of jailed polygamous sect leader Warren Jeffs' southern Utah-based church may force Utah courts to walk a constitutional tightrope that experts say could tread a little too close to separation of church and state.
The presidency of the 10,000-member Fundamentalist Church of Jesus Christ of Latter Day Saints has been in question since March 28, when church bishop William E. Jessop filed papers with the Utah Department of Commerce seeking to unseat Jeffs as president of the church corporation. Under state law, the move automatically put Jessop in power.
That set into motion a flurry of filings from Jeffs loyalists removing Jessop and claiming that some 4,000 church members have pledged their loyalty to their incarcerated leader.
Monday marks the deadline set by commerce officials for both parties to resolve the dispute or a legal showdown might be set in motion since, if no agreement is reached, the state says power will revert back to Jeffs.
"The last thing a judge wants to do in a nation committed to the separation of church and state is to become the arbiter of questions of faith," George Washington University law professor Jonathan Turley said.
One huge hitch for the courts could be the fact that throughout the church's history, its president has also served as its prophet.
"To the extent that the question is legitimizing one prophet over another, that will run against the grain for the court," Turley said.
Neither side has yet begun the process of filing action with the courts, but a move is being considered.
"We're not rushing into court over this," said Mark James, Jessop's attorney. "It's important to understand that this is not William E. Jessop's attempt at some sort of overthrow of the church. This is a guy who believes very strongly that he was the person designated to be the president."
Jessop, 41, claims he was ordained to the post by the church's previous prophet, Warren Jeffs' father, Rulon Jeffs. The contention is seemingly proved in recordings of 2007 telephone calls made by Jeffs from a Utah jail. In the conversations - with Jessop, Jeffs' wives and other church leaders - Jeffs states that he "never was the Prophet" and that "Brother William E. Jessop has been the Prophet since father's passing."
Jeffs, 55, later recanted the statements and has maintained since 2002 that his father called him to lead the church.
Salt Lake City attorney Rod Parker, who represents the church in civil court matters, declined to comment, saying he's not been directly involved with the leadership dispute.
Incarcerated since 2006, Jeffs is now in a Texas jail awaiting trials later this year on charges of bigamy and aggravated sexual assault tied to alleged relationships with underage girls.
Ken Driggs, an Atlanta attorney who is an expert in fundamentalist Mormon culture, said he'd be surprised if any court wanted to "wade into the thicket" of deciding which man should lead the FLDS church.
"Why is that any of the court's business?" asked Driggs, who has had close ties to the FLDS community for more than 20 years. "That would be like the court telling the (Mormon) church who is the successor."
Courts sometimes do get involved in intra-church disputes, but only reluctantly and only when there are underlying legal issues, such as property disputes, Turley said.
For example, Turley said, courts in New York have resolved disputes over who could legally make decisions for a synagogue. Elsewhere, courts have decided whether breakaway Episcopal congregations or their respective dioceses were the legal owners of church buildings and properties.
The legal decision-making can turn, in part, on religious determinations, such as how a faith's organizational structure and bylaws dictate its hierarchy, Turley said.
"But the court is unlikely to rule on whether someone is a prophet," he said. "The courts are generally more inclined to consider profit with an f rather than prophet with a p-h."
Church leaders have a unique dual role as both spiritual directors and legal authorities for congregations, but if either Jeffs or Jessop looks to the court for a resolution, both would have to prove they had suffered some legal injury.
"The dispute to be heard by the courts has to focus on the legal status of these individuals," Turley said. "The strongest cases are those that can link religious determinations to the ability to handle property or make decisions for the congregations."
Nothing filed with state authorities so far make such claims.
Jessop's most recent commerce filings, however, claim church officers have lied and used threats of excommunication to keep congregants loyal to Jeffs. The papers also challenge the "common consent" election by some 4,000 church members which affidavits from Jeffs loyalists offer as proof that he is the chosen church leader.
Driggs called that assertion an unusual and likely unprecedented move.
"I never heard of taking a vote like that in all of fundamentalist Mormonism," he said.
Historically, fundamentalist groups whose religious roots are tied to the early teachings of the mainstream Mormon church have either relied on patterns of succession that award the presidency to the next most-senior church leader or through a declaration from a living prophet who names his own successor.
Jessop has called for a fair process through which church members could make their own decisions in some sort of election, but experts say developing a process for something that has never occurred could be a challenge.
It's unlikely a court would set ground rules for church elections, Turley said, but it is possible a judge could rule on legal criteria for determining who is actually the church's leader.