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 . 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.  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  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.
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?
 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.
 The history of the Church’s involvement in Baehr v. Lewin and its aftermath has not yet been written extensively, but it is interesting.
 Among those people are Antonin Scalia and Elder Dallin H. Oaks.