Possible Legal Justifications for the Policy Changes

FEAR THE RAINBOW

I’ve received some emails asking about something they heard on Facebook or in the halls at Church about how the Church had to enact this policy change in order to forestall one legal result or another. The goal of this post is to raise the legal concerns I’ve heard and discuss them at a high level. This post is intended to be neutral towards the policy.

Child custody gossip

Here’s an example of what I’ve received: “I’m starting to hear speculation that the real reason behind the recent policy changes was the fear of lawsuits resulting from child custody disputes, particularly if an LDS spouse demanded full custody from a gay spouse on the grounds that their children could not be baptized while living part-time with a parent in a same-sex relationship. A blanket policy forbidding any such baptisms before the child is 18 protects the Church… Is the Church being named as a party in a child custody suit a valid concern? What would be the possible legal outcomes? And is this a plausible origin for the new policy?”

Generally speaking (and this will vary only somewhat from state to state), a child custody hearing will focus on the best interests of the child. This is a multi-factored analysis that looks at the age, wishes of the child, ability of the parents as caregivers, stability, abuse or neglect, and yes, in some states (at least prior to Obergefell) sexual orientation. Factors such as culture, religion, etc. are weighed in the balance along with everything else, but they do not take priority over the physical well-being of the child. Courts are generally reluctant to award sole custody to one parent unless there are extenuating circumstances (again, abuse, unavailability, health, other factors that point to an inability to care for the child). This means, for example, that one spouse leaving the Church would typically not be grounds for sole custody.

I’ve seen it suggested that maybe the policy is intended to create circumstances where the straight LDS parent can argue to a court that he or she should be awarded custody because if the child lives with the gay parent the child will not be be able to be baptized and fully participate in the religious community. However, this approach ignores the language of the policy–the restrictions on the child are in place regardless of where the child lives. The fact that the gay parent is married or co-habiting bars blessing, baptism, and ordination because of the gay parent without regard to where the child lives. The only significance in the policy of where the child lives is after the child turns 18. At that point to be baptized, the child must not live with the gay parent. (Moving out in a sense is part of the required disavowal.) Obviously, at 18 years old the court has no power over where the child lives. Further, the approach of the parent matters. A court may be more likely to take a dim view of a parent whose church forbids the child to be blessed or baptized because the other parent is married to their gay partner. Indeed, the lawyer for the gay parent may attempt to bring the Church’s policy into evidence that the other parent belongs to an exclusionary religion that is actually against the child’s best interests.

It is also unclear how it would help the Church to be involved in these family court matters. For example, the Handbook, while not privileged, is not a public document. Does the Church want it to be read in evidence in courts across the country? Actually, yeah, it might — see below. But not in family courts. The Handbook is clear that authorities should not get involved in legal matters except those in which the Church is a party, at the direction of the Church. I don’t think they intended to set up a policy that would get bishops deposed in child custody cases. I guess without this policy, a gay parent could argue that the Church is somehow interfering in the child’s development.  Unless there was clear evidence of abuse or actual harm to the child, that strikes me as a real loser of an argument.  Adherence by one spouse to a religion that teaches intolerance of the other parent’s lifestyle is far from the required standard.  Also, the Church has an interest in keeping its members active and facilitating future generations being brought up in light and truth. It’s logical to presume that where possible, it would want to keep children within the fold and help them grow up in a Mormon household. This policy change runs counter to that effort, so there must be some rationale that supersedes this priority with a greater one.

The Greater Priority

The greater priority is preserving the free exercise of the Mormon religion.

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

If you haven’t read Justice Kennedy’s opinion from Obergefell v. Hodges (or Justice Scalia’s dissent), it’s a must-read for people interested in the issue of the future of the Church with respect to gay marriage. The paragraph above comes from a point near the end of Kennedy’s opinion. Obergefell wasn’t about the free exercise of religion — it was a 14th Amendment case (which explains in part why the state lost). But the Free Exercise clause of the 1st Amendment (helpful primer here) was referenced in the dissents and was clearly in the minds of all of the justices (as Kennedy’s opinion indicates). The paragraph has been widely viewed as a sop offered to the various amicus groups that the Court disregarded, and the dissents find the reassurance unconvincing. However, taken at its word, it does suggest that in order for a Free Exercise defense to be effective, a religion must in fact teach principles against same-sex marriage, and advocate with sincere conviction that SSM should not be condoned. Sound familiar?

It is at least plausible to say that the Church’s policy change is motivated by anticipated challenges to its exclusionary doctrines [1]. The policy changes set in print, in an official policy document, the hard boundary line that the Church will insist the government not cross in curtailing its religious freedom. It’s not like our prior position was ambiguous – indeed, we had the Proclamation written in the context of early battles against gay marriage. [2] The Proclamation is the doctrine, and the Handbook (as it now stands) is the policy manual for interpretation of that doctrine. The Handbook is merely a regulatory framework for the broader strokes of the earlier statement.

Does the policy change move the risk needle in defending the Church against a future suit? I don’t believe so. Even if our prior position on same-sex marriage had been ambiguous, there’s not a lot of reason to fear greater risk of government involvement. A religion is free to have ambiguous policies on gays and apply them as it likes. Some might consider this approach naive [3] but there is not a lot of data around encroachment of religion, despite what you might read in First Things. For instance, assume hypothetically that LDS temples everywhere but the United States performed gay marriages. Do we really think that makes it more likely that the government would compel gay temple marriage here? No, the Free Exercise clause would protect a church’s ability to make even fine distinctions. That said, courts are not very good at acknowledging the fuzzy and constantly evolving nature of religious doctrine and belief. This policy sacrifices Mormonism’s (beautiful) vagueness and openness to change and inspiration in favor of a bright line rule that a court can easily use as a basis for its opinions.

Unlikely theories

Lastly, I’ve heard some other theories that I view as just outlandish. First is that this revolves in part around LDS Social Services, and giving the Church the right to deny welfare or other benefits to gay couples. To me that seems incredibly unlikely (though it’s probably true that we don’t want to be SSM marriage counselors). Second is the theory that this relates to property rights and access rights to buildings, but these are minor offshoots to Free Exercise issues generally and it’s not like there are lots of SSM couples aching to dress up the basketball hoops of the cultural hall for a party.

I recognize that the legal defense arguments may provide comfort to some members. We can characterize this policy changes as a defensive move in the culture war, instead of as an attack on gay families. Elder Christofferson made no mention of the legal landscape in his explanation, but that does not exclude such reasons. But let’s assume, arguendo, that the policy change is driven by legal concerns–does that make it better?

—————————————–

[1] Calling our doctrine ‘exclusionary’ may give it a negative connotation, but that is what it does. In the context of a suit, it is likely that the allegations would revolve around a LBGT person being excluded from marriage or other participation in an unlawful way.
[2] The history of the Church’s involvement in Baehr v. Lewin and its aftermath has not yet been written extensively, but it is interesting.
[3] Among those people are Antonin Scalia and Elder Dallin H. Oaks.

Comments

  1. Nice write up. That so many members are searching for obscure justifications like this is interesting in its own right.

  2. I have strong feelings on this based on the responsibilities of a mother and father to their children. When two become one, and the result is something greater in the form of a new life, both parents have sacred and ethical obligation to that life they created out of their union. Someone who fathers (or mothers) a child, and then seeks divorce because they’ve decided they can no longer be attracted to or live with or have sex with the mother (or father) of their child based almost entirely on that person’s gender is a poor parent and in the day of Solomon would clearly provide the correct answer as to where that child belongs.

    There is no blaming the proverbial bishop. You’ve created a life and now you have a responsibility to them. I realize my thoughts are unpopular and will be regarded as uncharitable, but pursuing your own desires over the needs of your children is truly uncharitable. Responses of being “asked to live a lie” are just as nonsense as asking Solomon to cut the baby in-half. First of all, it’s not a lie for you to love the mother or father of your child. Presumably you weren’t wincing in disgust every time you got near your spouse. Few things, if any, are more weighty than rising to your responsibility as a mother and a father. And every child deserves a mother and a father united in the love that created them.

  3. The is great. Thanks, Steve.

  4. California Observer says:
  5. I like the analysis, Steve. Putting on my cynic’s hat, I wonder if the policy also seeks to protect against collateral consequences of attacks on the exclusionary doctrines you discussed (such as prejudicing the Church’s tax-exempt status).

  6. Yes, the a Thoughtful Faith discussion was interesting, for the legal perspective. Seemed to imply liability for ‘alienation’ from a parent shifts when the child is deemed a member, as opposed to not being a member. And membership is triggered either at naming & blessing when a membership record is formed, or at baptism.
    I’m still baffled as to why liability would shift to the organisation if a person is a member, rather then the parents, given that parental permission has to be given; a form has to be signed at a naming & blessing before a membership record can be created for instance. I’m also wondering, that if this is indeed the rationale, there are wider issues that could result in said ‘alienation’, not simply teaching that homosexuality is a sin. So will we see this extended to, for instance, multi-faith families? What makes gay families a bigger risk?
    In any case, it certainly didn’t sound like it was about the the children. That would surely have lead to an overhaul in the way doctrines are taught and presented to our primary and youth.

  7. Even though I don’t quite get all things legal, this sounds like an interesting analysis of possible explanations. I cannot help but notice that this seems like a US-centric analysis, though, while the policy applies to all the world where there may be different legal issues at stake (I’m writing from Italy, where same-sex marriage isn’t even lawful). I realize that, statistical data notwithstanding about membership, the ‘heart’ of the Church may still beat around the US (and Utah specifically) when it comes to certain issues, but I am confident that the Brethren have a larger view in mind and in prayer when they consider such weighty matters. This is why I do not fully believe that civil law (US civil law specifically) has played a prominent role here. I believe that fundamental doctrines of the Gospel are still at the basis, or center, of such considerations.

    I cannot speak on behalf of other members, even if I suspect that many may have attached ‘obscure justifications’ — in good faith, honestly and understandably, most times — to this policy (it often happens in our LDS world, both with regards to policies and doctrines, past and present). For the moment, I think there is safety in sticking with the official explanation given by the Church (that is, Elder Christofferson) and wait for further understanding, either from the Church or from the Lord Himself through personal prayer, Scripture study and revelation.
    I appreciate the fact that the general tone of the discussion on the Web is becoming (gradually, ‘comment upon comment’, or ‘blog post upon blog post) softer. I hope the ‘crisis’ may die down and the Spirit may enliven those who at first have been hurt or offended by the policy. Some things are hard to understand, bear or accept, even in the Kingdom (as the Scriptures and the History of the Church clearly show), but this is an opportunity to strengthen our resolve to follow the Lord wherever He leads us (it’s always a better place than we can imagine, though not an easy ride), to exercise patience, faith and humility.

    “Many therefore of his disciples, when they had heard this, said, This is an hard saying; who can hear it? [Jesus] said unto them, Doth this offend you? […]
    From that time many of his disciples went back, and walked no more with him. Then said Jesus unto the twelve, Will ye also go away?
    Then Simon Peter answered him, Lord, to whom shall we go? thou hast the words of eternal life. And we believe and are sure that thou art that Christ, the Son of the living God.” (John 6:60–69).

  8. It should be acknowledged that, since this is a worldwide Church, it is not enough to consider American law. There are other countries with family case law widely varying from our own.

    To answer the last question of the article, yes, legalities should count and be valid. Consider: a court awards custody because one parent is seen as harming the child by taking them to a Church that preaches against that parent’s lifestyle. There’s two problems with this: One, the child could lose contact with one parent because, in part, of the Church teachings. But, secondly, but in no way less important, the court could be on to something. The child could be suffering from the Church teaching being so completely at odds with the household of one parent.

  9. Thank you for the excellent analysis. One thing I’ve wondered is if there is a concern about creating a membership record for a child that would list their same-sex parents. I could see there being theological concerns about naming a same sex couple as the parents, but could the Church have legal concerns about the record being some kind of recognition of same sex marriage? It would explain the ban on both the name and a blessing and the baptism.

  10. Kevin Barney says:

    I’ve seen talk of possible legal rationales, but I could not figure out what the posited rationales were supposed to be. This is a very helpful discussion; thanks for posting it.

  11. Thanks for the analysis, Steve.

    J. Crowne, as I’ve argued fairly extensively, the church’s policy on same-sex marriage will have no impact on its tax-exempt status in the US (and I doubt it would affect the church’s status elsewhere, but I’m technically only knowledgeable about US tax law). If I were wrong about that, though, this would at best hurt the church’s tax-exempt status as an additional piece of evidence of discriminatory practice.

    And Joel, I can’t imagine a situation where the church has legal concerns about keeping records of same-sex marriages. Its records have no legal significance at all. Many countries don’t even recognize religious marriage, and in the US, church records can say whatever they want (for example, the church can list a divorced couple as sealed) without any legal consequence.

  12. The idea of church liability for alienation I find incredibly unlikely.

  13. Andrea: don’t mistake a legal analysis for assent. I think the policy is repulsive. I just put that aside for the post.

  14. During my recent divorce, we were able to work through child custody issues amicably, one of which was whether our children would be baptized in the church. One of us was in the process of leaving the church, which was one of the precipitating factors for the divorce, but we agreed that our children would be better off if we resolved the baptism issue during the divorce process than to kick the can down the road.

    If these conversations had yet to be taken place, I dare say they would not be as amicable in light of this new policy and may well lead to litigation given the strong feelings on both sides.

    This new policy is making many divorces and custody arrangements much more difficult. Anonymous

  15. Let’s note that these justifications, if that’s what they are, were not advanced by Elder Christofferson, and in my view are inconsistent with it. They suppose that rather than seeking to protect the children of gay families, the church is trying to solve its legal problems on their backs. So even if true, I don’t see how this exculpates the church.

    The church’s abandonment of these children is doubly noxious when you realize that many of these children would not have been born if the church hadn’t encouraged their gay birth parent to marry heterosexually as a cure. That didn’t work, so now the church discards them.

  16. Rebecca makes an important point. Apropos, same sex marriage was made legal in The Netherlands in 2001. Whence the handbook change then? Once again, Amerocentricism rules the day.

  17. Ronan, quite so. This legal analysis, and I suspect the Church’s, is limited to the United States.

  18. Good legal analysis. One quibble: “Obviously, at 18 years old the court has no power over where the child lives.” In the great state of Nebraska where I live and practice, the age of majority is 19; a family law court here can still dictate where the child is living before that age.

  19. Not a big deal, just thought I’d throw that out there.

  20. “Amerocentricism rules the day.”

    This blog seemed to only be considering the American legal system, is what I meant. Perhaps the First Presidency is indeed considering legal consequences in countries worldwide.

  21. Partridge, in Winter Quarters there is no law.

  22. gst, I am sorry but I do not see the Church encouraging gay men or lesbian women to marry heterosexually, actually. Maybe this what the case a few decades ago, when some leaders or professionals were influenced by what some psychological currents taught at the time?

    I do not think this is what Church leaders are teaching or encouraging members to do nowadays. Quite the contrary… Could this be one of those ‘vestiges from the past’ improperly used in our days against the Church? I have seen this point come up often in discussions on this recent policy, usually as a pointed accusation, but it seems like one of many arguments used to express someone’s hurt/dissent/repulsion etc. without any real connection to actual Church practices or teachings today. Discarding or abandoning children?! The policy may be wrong, incomprehensible, unacceptable and so on, but do you really believe the Church (or its leaders, and therefore the Lord) has gone so far as to discard or abandon children? Have we arrived at this point? Elder Christofferson’s words do not seem to justify such a view (I might also say that the recent news about his brother Tom being gay is a poignant and interesting addition to the whole story) and even if I do not understand all of this, I’d be extremely cautious before accusing the Lord of doing something like this or attaching repulsive motivations behind a Church policy, as bad as it may subjectively seem to us.

    The Church may or may not change or amend this policy, but I find this kind of negative attitude troubling. I can understand personally dissenting, not accepting, disliking and so on, but this kind of harsh (and unwarranted, in my opinion) judgment seems excessive.

  23. Andrea, I know with absolute certainty that this is still taught today. Don’t be so confident.

    As for negative attitudes… I think a negative attitude is understandable about the policy and I don’t begrudge people their feelings. Harsh judgments about it are ok. You don’t have to agree. That said, the post isn’t about whether the policy sucks, but the legal world around it. So, gst, Andrea, gang, move along.

  24. The rumored legal justifications all seem post facto and none of them is persuasive.

    As an attorney myself, the moment I heard about this new policy I immediately wondered if the church was trying to better position itself legally. Though I don’t question the wisdom of taking such steps, even when they are unpopular, my analysis was the same as yours—there is no compelling legal justification for doing this. Indeed, the poor manner in which the policy was drafted and the apparent belief at church HQ that no one would really pick up on, or care about, this change to the handbook suggests that there wasn’t much forethought that went into any of this.

  25. FarSide, I tend to agree but I think there is a real chance that Obergefell paranoia factored into it.

  26. Thanks for the thoughtful article. I get uncomfortable with all of the rationalization and justification of church policies that members make (especially the ardent apologists). It feels like their speculation will become tomorrow’s “folk doctrine”, with all of its feelings of betrayal, once the church reverses its position in the future. The speculators/apologists ought to leave the explanations to the GAs, and make the GAs take the heat/responsibility for these decisions. If all of the wannabee apologists were silent on these policies, I think the GAs would be forced to go beyond faux interviews and actually defend these policies in public.

  27. djohson, most of the apologists I’ve read have been doing just as you describe – they are pointing, quite appropriately, to what Elder Christofferson said. But it’s not like Elder Christofferson’s response needs to be the totality of the reasons behind the policy change, and I don’t have a problem with people articulating additional rationales. But whether those additional rationales make any sense is a matter of logic and faith.

  28. lastlemming says:

    I don’t have much to say about the legal analysis. But I would note that if the point is simply to stake out the Church’s rights under the First Amendment, one would expect them to be absolutely explicit about their intent.

    On a different subject, would it not be a simple matter to offer in-church blessings to all comers but not necessarily create a membership record?

  29. LL, being explicit in the intent is sort of irrelevant and possibly harmful. It needs to be an actual deeply held belief of the faith. If it’s just an obvious protectionary tactic, I’m not sure it would work.

    Re: blessings, yes. Blessings of health and comfort are of course still available. But nothing that brings them into the community.

  30. Don’t know all the reasons behind the handbook changes. Just wondering why they come so late in the game, since SSM has been legal in many countries for at least 10 years, and in the US, about the same. Therefore, I have to assume the same justifications for implementing the handbook changes of late have existed for some time. Why make the changes now? Why not have made those changes years ago? Maybe there weren’t enough instances of SSM among members to merit a formal position, and now the numbers are increasing. Just wondering.

  31. Eve of Destruction says:

    A relative of mine who’s really into family history has found where an ancestor was the product of rape, and was adopted into another family. Having already done the temple work for as much as could be found of the adopting family’s line, and the biological mother’s line, she is now (very charitably, I think!) trying to discover the identity of the rapist and do his and his family’s temple work. Her simply sitting there with those records as much as she does, and wanting to create an unbroken web, softened her heart and made her want to create a way for him to repent and be baptized.

    I suspect that if records were created with same-sex spouse’s names on them, it wouldn’t be long before people would want ordinances to be done for them “just in case.” I know that legally, the Jews have had some success in asking to *not* have temple work done for them. And it was a legal decision that created name removal as a way out of the church, because excommunication implied wrongdoing. I wonder whether, if same-sex couples names were on church family history records (which are pretty widely available online), but somehow marked as “don’t do the temple work for them” that might be defamatory? In a similar way to how excommunication without wrongdoing was considered defamatory? If so, it might be better for the church legally to simply not create a record for them.

  32. IDIAT, I don’t understand the question. SSM was not finally declared constitutionally protected in the United States until earlier this year. As for other countries, we’ve ignored them until now.

  33. Eve, not defamatory, and no possible legal action. And our policy with respect to Holocaust victims was done out of respect and public outcry, not because of legal arguments.

  34. I guess my point is it was legal in plenty of other countries where the church has a population of members, and legal in states where the church has members. Sure, Obergefell reaches those states where it was not already legal, but a lot of water has passed in terms of baptized children and same gender parents. Why would the church have ignored what was occurring in other countries and states, and then wake up in early November of 2016 and decide to formally change the handbooks?

  35. Eve – currently, it’s not possible to enter a marriage of two people of the same gender into either the Church or FamilySearch systems. The only way the work could be done would be to enter the person is as a different gender (which wouldn’t be valid), which has likely been done accidently for many years now.

    I don’t see FamilySearch changing the rules to accommodate marriages for people of the same gender, or even of ambiguous gender, ever.

  36. “Why would the church have ignored what was occurring in other countries and states, and then wake up in early November of 2016 and decide to formally change the handbooks?”

    With the US hosting the largest number of members in one country, and nearly half at that, it is not surprising. Also, SCOTUS might have theoretically ruled in a way to overturn the legalization in many of the states where it was legal pre-decision, as the majority of them were decided by the courts, too.

    Do you really think that they’ve been “sleeping” on this until now? Surely, the prospect of the mass legalization of same-sex marriage has been accumulating for years. Doesn’t it make sense to wait for the bulk of the legal rulings affecting the populations of members to be made before finalizing policy?

  37. I believe that the policy with respect to children is mere “cut and paste” from the policy with respect to children of polygamist families. The children are collateral damage in the war against gays (in general, and gay marriage in particular). The policy with respect to adults is a mere consequence of outsourcing the chastity covenant in the temple liturgy to its present “legally and lawfully married” language sometime after the Second Manifesto. The prospect of two legally and lawfully married men asking their bishop for a sealing recommend may have given the Brethren pause. And, yes, this is further evidence of our ignoring events outside the US when establishing policies.

  38. “…….in order for a Free Exercise defense to be effective, a religion must in fact teach principles against same-sex marriage, and advocate with sincere conviction that SSM should not be condoned.”

    Elder Oaks’ crusade for “religious freedom” and the birth of this policy indicate that Elder Oaks (maybe other Q12 attorneys) believe that over time, courts will force the Mormon Church to accept and bless same sex marriage – unless the church’s doctrine and policy against ONE definition of marriage is absolutely crystal clear. Since the Mormon church has already changed the definition of marriage once, without a series of absolute and draconian policies now, Oaks (and others) fear that courts may rely on the church’s polygamist past to question or dismiss the church’s current teaching on marriage – as between one man and one woman.

    Only the Mormon church has to worry about what would otherwise be kind of a crazy long shot 1st amendment challenge, because only the Mormon church has already changed it’s doctrine/policy on marriage in the not too distant past.

    An easier way to establish the same bulwark of “core doctrine-hood” would be for the Mormon church to issue a revelation completely disavowing polygamy. Wish they would just do that instead.

  39. Sorry; I think the comment is almost frivolous. I have represented the Church, other churches, and organizations derided as “cults” around the United States in various courtrooms. I am involved in one now in New York for an organization accused by former members as a “cult.” I have become familiar with custody fights involving religion.

    Given that there is practically and virtually no risk of a First Amendment organization being named in a custody dispute, I’m pretty sure that such legal concerns had zero to do with the Church’s analysis.

    Yes, custody disputes concern do religion (one, where one parent contends a religion is a cult, or two, where one parent breaks a pre-birth agreement to raise kids in a particular religion) but the churches themselves just don’t get named in the disputes. Yeah, sure, a minister may be dragged in as a witness, but that’s it.

    Perhaps those who suspect that the Church’s policy (which basically mirrors the decades-old policy for polygamists) is based on legal fears might point to a single reported decision in the United States where a Church has been named as a co-respondent in a custody battle. One?

    No, the current policy was merely meant to bring gay-wedded “apostates” in line with plural-marriage “apostates. You want to go on a mission? You must disavow your parent’s marriage choice.

    Bob Crockett
    Los Angeles

  40. Google “entanglement doctrine.” The Establishment Clause, under the Lemon test, prohibits the government from getting involved with religion. Courts cannot adjudicate cases that require interpreting the meaning of religious teachings, deciding between competing religious teachings, or determining the truth value of religious teachings. You can’t sue a church in the United States over its religious beliefs. Period. You think the LDS Church’s attorneys don’t know that? You think Oaks and Christofferson don’t know that? You think the government is going to declare a private church to be a public accommodation? Consider how big this would be. We’re talking supreme court, congress, state legislatures, constitutional referendums, every media outlet, lobbyist and lawyers for every church in the country, etc. The idea of there being a threat from such a lawsuit is asinine.

  41. “But let’s assume, arguendo, that the policy change is driven by legal concerns–does that make it better?”
    Thanks for this, Steve. Just a quick note to offer a slightly different justification for speculating about legal explanations for the policy change. There is a tone among the commenters that suggests that members who are (and to quote DCL) “searching for obscure justifications like this” are somehow in the same camp as, or at least in collusion with, the typical apologist. Quite the contrary–at least in my case.
    When it occurred to me that it may be church lawyers responsible for the policy–lawyers tasked to imagine every possibility that may occur when same-sex marriages are deemed “apostate”–it was terrifying. If this is true, and given the near doctrinal status some (many!) attach to policy, it means that lawyers and not prophets/revelation are “leading and guiding” the church. And that is a sobering thought indeed.

  42. Jon, the thought of more lawyers in charge encourages me!

  43. Eve, that can’t be it

    “I suspect that if records were created with same-sex spouse’s names on them, it wouldn’t be long before people would want ordinances to be done for them “just in case.” ”

    Because right now, the church will accept adult converts notwithstanding the same sex marriage either/both of their parents may be involved in.

    Also because, right now, there are blessed and/or baptized LDS children who have same sex parents

    Also because, right now, there are kids of lgbt couples who are not LDS members, but their grandparents are, and I can’t believe the church computers have been exploding when trying to record the fact that Sister Nice Old Utah Lady has 5 kids and 15 grandkids and 2 of those grandkids have married moms.

  44. What are the Church’s specific religious liberty fears?

    Mormons being required to recognize same-sex marriages as doctrinally valid, or being required to perform the sealing ordinance for same-sex couples? I’m not a First Amendment guru, but I cannot think of any theory that would lead to this result. Or at least, it would require an unprecedented (pun intended) shift in the way this country thinks about religious liberty.

    Mormon clergy being required to perform same-sex civil marriages? I cannot think of any theory that would lead to this result, other than some sort of decision that anyone authorized by the state to solemnize civil marriages must be willing to solemnize a marriage for all comers. If that were the ruling, the Church would stop allowing its clergy to perform civil marriages—which does not seem like a big deal.

    Mormons being required to open their chapels or temples for same-sex civil weddings? I suppose this could come under a “public accommodation” or “common carrier” sort of theory, so that if you are offering weddings at all, you must offer weddings for whatever forms of marriage the state endorses. This seems slightly more likely than the previous possibilities, but would still require a big shift in legal thinking about churches as public accommodations. And if it did happen, the Church would just stop allowing civil marriage ceremonies in its chapels or temples. Members would be required to get a civil marriage first and then go to the temple for the sealing ordinance, as in many places around the world.

    Losing tax-exempt status? This is a big issue and I don’t know enough to give an informed opinion. But if tax-exempt status turns on discriminatory conduct, I agree with Sam Brunson, above, that the recent policy changes would be seen by the IRS as discriminatory, so losing tax-exempt status would be more likely, not less. (I would like to see someone explain the full ramifications of losing tax-exempt status. How bad would it be? I mean that honestly, not rhetorically.)

    Losing access to federal funds at Church educational institutions (like federal student loans, or research grants)? This is another area where I don’t know enough to give an informed opinion, but as before, the new policy would seem to make this more likely rather than less.

    Losing the ability to speak out against what the Church considers to be sin? It would require another momentous change in First Amendment doctrine to make such speaking out legally unprotected. As for practical consequences (boycotts, shunning, etc.), the Church isn’t going to win that battle through policy changes like this one.

    What am I missing?

  45. Not much.

  46. Steve, If it’s not too late, a question/clarification. You say, “The fact that the gay parent is married or co-habiting bars blessing, baptism, and ordination because of the gay parent without regard to where the child lives.” However, the policy does not specifically limit the gay parent to marriage or cohabitation. The language of the policy is “living in a same-gender relationship”. I don’t read this as requiring marriage of cohabitation; just being in a monogamous dating relationship seems to meet this description. I interpret this language as requiring a gay parent to be celibate if they want their child to be blessed/baptised/ordained.

  47. Kari, it’s never too late.

    My interpretation is that the policy focuses on an ongoing same-sex relationship. Ironically, someone who is notoriously promiscuous would not be covered by this policy. So, either celibacy or promiscuity.

  48. Eve of Destruction says:

    Cchrissyy, the church’s membership records currently don’t allow same-sex households to be recorded. See Frank Pellett’s comment above; he is in more of a position to know than I am. If you go to familysearch.org, you can see that the family trees insist on Father and Mother, there is no same-sex option. I don’t think computers are exploding; I think same-sex households are simply not being recorded right now or for the foreseeable future. My guess is that if a situation with married moms is being recorded at all, it’s either as a single mom with the other mom left off, or as a mom and dad (misgendering one of the moms).

  49. Eve, I agree the records currently are probably entered aby mid-gendering one parent or as if it was a single parent (leaving out one partner)

    But, today, it is acceptable to baptize an adult convert even if that person is the natural or adopted child of same sex parents. So even under this (revolting) new policy, the church is open to convert members with same sex parents. Therefore it doesn’t make sense that the policy change is to prevent member records existing with same sex parents on them.

  50. Eve of Destruction says:

    Cchrissy, adult converts with same-sex parents are required to disavow their parents’ marriage under the new policy. Writing their parents’ same-sex marriage into the records of the church would be incompatible with “disavowing” it, I think.

  51. Clark Goble says:

    Jon: If this is true, and given the near doctrinal status some (many!) attach to policy, it means that lawyers and not prophets/revelation are “leading and guiding” the church. And that is a sobering thought indeed.

    I think the Edmunds Tucker act still looms large in some peoples minds. Especially those of a certain and focus on law. I’m not sure, looking at the 1890’s as the archetype, that law and revelation are as opposed as some think.

    Those of use were were the first part of Gen-X grew up in the transition from a kind of self-perception of Mormons in terms of persecution. By the latter end of Gen-X, those coming of age in the early 90’s, that just wasn’t there. This affects lots of things ranging from how apologetics and politics are viewed to just how we see ourself. Most of the brethren are before Gen-X so that self-perception in terms of persecution is still very strong. That’s doubly true for those in the main group of Baby Boomers who likely had parents still psychologically scarred from outright federal persecution.

    While I’m quite skeptical this policy had anything to do with formal legal concerns, I can see that view of persecution being behind a lot of thinking. Especially for more recent generations that whole line of fear undoubtedly feels so alien. Today “persecution” is seen as someone saying they wouldn’t vote for Mitt Romney for President because he was Mormon. However just a few generations earlier it really was a very different mindset.

  52. I didn’t read the other comments. I think your analysis of alienation of affection is incomplete and/or inaccurate. Courts are more and more recognizing that issue and making custody determinations involving it. It is not typically the parent’s faith –the first amendment protects this — that is the deciding factor, but rather what that faith imposes on the child. Parents who do not remain together often disagree on fundamental issues (including whether or not one or both parents are behaving in ways that are good). That is not the hard part. It is how to order what will be in the best interest of the child.

    So if a parent belongs to a faith that teaches that homosexual behavior is sin, and can consent to the child’s full involvement in that church (yes I know that the lds church requires both but the church is not a party to this custody order) —not just that they attend with that parent on their two Sundays a month and go to scouts on the days the child resides with the parent, but being officially on the records, baptism, and ordination to the priesthood to act in church responsibilities, then the court must look to a decision of whom or what faith must be followed. Courts absolutely will look at the burden created by the sharply different views. But when the parent’s church will not allow any child to become more involved than attendance, the parent cannot fairly be charged with alienation of affection because of their belief. The parent is not boxed into the normal lds age progressions that could otherwise be used against them, since they do involve the child accepting and believing that parental same sex relationships are okay with God.

    That is at least one way the policy protects both children and faithful parents.