Conversations about the religious and spiritual life on the other side of fundamentalism
126: Church Policy Changes and their Legal Contexts: James Ord

126: Church Policy Changes and their Legal Contexts: James Ord

Screen Shot 2015-11-09 at 2.33.21 PMIf you want to understand the legal context behind the recent changes to church policies concerning same-gender marriage and the children of gay and lesbian partnered parents this podcast is a must listen. Salt Lake City based lawyer James Ord joins me to discuss the legal imperatives for the policy change, the reasons behind the guns drawn on gay and lesbian people and their families, and why all of this makes perfect sense in the small world of Temple Square.

We chat about the balance between protections the church places on itself from liability and weigh that against the personal cost to families and the broader LDS community.



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    1. these people are so lucky that there out of the false church of joseph satan boggs should of killed all the crooks..thank you lord I am free of there cult,,,all you gay people are so locky,now go enjoy life…

  3. Meredith LeSueur

    I am always delighted when James is on. I appreciate his ability to take a balanced perspective and his objective speculation in this case was especially generous and something I find myself doing around other ex-mormons who usually share my point of view. Its just impossible for me to not be satisfied by simplistic answers whether or not they feel good and so this discussion was definitely very satisfying. Thank you for lending your talents and legal mind James.

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    1. Terri Lorz

      How could Salt Lake be there, given its well-known social conservatism? It seems to be a kind of regional capital of gay life, attracting people from other parts of Utah and the Mormon West.

      This is not about genetics – it is that SLC is extremely liberal and draws LGBT people from Idaho, Utah, Arizona – other western areas where there are a lot of Mormons.

  5. Spencer

    Not sure who the host is on this one, but this is about the 3rd or 4th podcast I’ve listened to where she has hosted. Perhaps I don’t know her background well enough, but she seems very cynical and somewhat off-putting. As an active Mormon, I really appreciate the James’s “outsider” take. I even accept his self-admitted cynicism because he does a great job of tempering it with giving others the benefit of the doubt from time to time. The host, on the other hand, in the few episodes I’ve listened to with her, I always feel my guard/walls going up each time she speaks and I’m left with a poor taste in my mouth by her tone (and I genuinely don’t want that). I think in any discussion, particularly one involving religion, you have to resist your own cynicism because so many people want to listen, but, like myself, are leary of your bent. And nothing puts people’s walls up faster than cynicism. Just a suggestion.

      1. Liffey Banks

        “I’m left with a poor taste in my mouth by her tone.” God forbid you have a poor taste in your mouth from the way someone talks, Spencer. We shall move heaven and earth to make sure all podcast hosts only leave pleasant sugary tastes in your mouth from now on.

      2. Brad Heitmann

        Gina: I agree with the previous comment. I don’t know if you’ve left the Church but even a heterodox Mormon like me can see an agenda behind your words, your tone of voice, and the direction in which you try to guide the conversation. You may not be aware of this deep background to your own thought processes, but I’d encourage you to listen to yourself speak as it may become more apparent to you. The reason I object to this is it lacks balance and becomes uninteresting very quickly. In contrast, your guest was delightfully thoughtful, aware of his own cognitive biases, and stepped up to rebalance the conversation in a truthful way. If your agenda is to attack the Church, why not just do it openly? Why hide behind the guise of “A Thoughtful Faith” when you of yourself are not being terribly thoughtful. I write this not to disparage you but to basically say you can do better. I’m actually a fan of a good critique (I do it all the time as a moral imperative), but you seem to attack intentions without evidence, eschew rational thought for sentimentality and preconceived notions, and ultimately damage your own credibility while attempting to damage the credibility of others. You start with a context that is not neutral but is anchored in your perception (be it right or wrong) of what is rather than what could be. This collapsing of possibility reeks of pessimism. If that is the tone you are looking for, then by all means please continue thus. If not then please lighten up, get some ice cream, maybe do some yoga, and be the delightfully interesting (and balanced) host we all know you can be.

        Yours Truly,

        Brad Heitmann

          1. Brad Heitmann

            Again, this is a perfect example of what I’m talking about. Rather than engage in thoughtful dialogue you’re employing the very demagoguery you claim to reject. Here I am extending feedback as a thoughtful interlocutor and instead of receiving it you hurl it back at me and basically tell me to get lost. It’s as if there isn’t room for thoughtful dialogue here on the Thoughtful Faith. It almost seems like if we disagree with you you prefer to show us the door rather than to engage. It’s this dismissive, pessimistic arrogance to which I refer. It’s a cloud that hangs over you in the background of your every word. Dispel it! And prove me wrong. Otherwise you’ll become the very thing you profess to hate — someone who doesn’t listen.

      3. let the gay people start there own church.i will get them a new book of moron from levi nephies brother and I will tell him all the other churchs are wrong..start your own and no straight Mormons can temples of doom either..

    1. Xposit

      “I always feel my guard/walls going up . . .” What a shame Spencer that you require guard walls when listening to an intellectual discussion. Have you ever tried weighing ALL the facts before you make up your mind? It’s really quite refreshing. Maybe you should make the effort to learn more about Dr. Gina Colvin, we all stand to learn a lot from her.

  6. Joy

    A legal question: If the issue of family alienation plays into this decision, why target children of gay parents? That issue would apply if divorced parents had any disparate religious or ideological beliefs. And were there legal considerations in the decision to bar adult children from baptism and missions unless they disavow gay marriage?

    1. Most cases of Parental Alienation cause a liability on the alienating parent.

      Cases involving disparate religious leanings aren’t uncommon.

      Cases involving both disparate religious leanings and parental Alienation are a subset.

      A further subset of those cases is when a third party is sued under a tortuous interference coa / Alienation of affection coa.

      In Utah third parties are mostly shielded from liability in this regard.

      California courts have recently begun to entertain third party liability under special circumstances.

      This arises from the third party having a special relationship to the child. Which then gives rise to the duty to the child. Which is then breached by interference with the parent child relationship. And then creates damages.

      To avoid creating a special relationship with the child, the church remains a legal stranger to the child under the new policy.

      1. Joy

        Thank you for answering. Excuse my legal ignorance, but can’t the Church be sued as a third party interference in cases other than the ones stipulated in this policy? Why is the gay scenario worthy of special mention? Are you saying that it is especially problematic because sexual orientation AND religious differences combine to increase the likelihood of a lawsuit against a third party?

        And are they seeking some kind of legal protection by requiring the adult children of a cohabiting or married gay person, who may have even left the cohabitation or marriage, to not live with that parent? I can’t imagine a risk in that case.

      2. PN


        Has there been any thought to broadening the COA to a parent who believes the religion is teaching hate but not necessarily a target of that hate? In other words, a white heterosexual male who simply doesn’t want his kids raised to discriminate. For purposes of this hypothetical, this individual resides in California.

  7. Jon Grimes

    The guest makes a statement regarding Utah cases vs. California cases dealing differently with liability for interference with parental relationships and alienation, but does not provide the names of any of those cases. Are case cites available?

    1. Anna

      I’d also like to see a source for the statistic about Mormon’s having a higher rate of homosexuality than the general population. These are important assertions made in this podcast and it would be great and useful to have the actual sources to back them up.

      1. Terri Lorz

        I thought he insinuated that Mormon’s have a high rate of LGBT children – but what it appears is happening is that LGBT children from Mormon communities come to SLC. SLC is rated 7th in terms of LGBT – not Utah, not Mormons. Also – because many LGBT marry – SLC has the highest percapita rate of LGBT couples with children. – this is better.

      1. 1. I did not make the claim that 6%-9% of LDS children were gay.
        2. I said that LDS folks breed gay people at a statistically significant higher rate. And that said statistical significance factor is between 6-9 points depending on the study.
        3. See Wikipedia on Statistical Significance.
        4. Use Google to find the studies.

        1. Kristen

          Hi James,
          I really enjoyed this podcast. I learned a lot. I did google to try and find studies talking about, as you say, LDS breeding gay people at significantly higher rate, but I’m coming up with nothing. This is something that I’m very interested in. Would you be able to point me somewhere? Thanks again. This was a great podcast.

    2. 1. Most cases of Parental Alienation cause a liability on the alienating parent.

      2. Cases involving disparate religious leanings aren’t uncommon.

      3. Cases involving both disparate religious leanings and parental Alienation are a subset.

      4. A further subset of those cases is when a third party is sued under a tortuous interference coa / Alienation of affection coa.

      5. In Utah third parties are mostly shielded from liability in this regard.

      6. California courts have recently begun to entertain third party liability under special circumstances.

      7. This arises from the third party having a special relationship to the child. Which then gives rise to the duty to the child. Which is then breached by interference with the parent child relationship. And then creates damages.

      8. To avoid creating a special relationship with the child, the church remains a legal stranger to the child under the new policy.

      9. Yes, there are case cites available. One can do a Google search, or search on Justia, Find Law, Westlaw, LexisNexis, or other sites to find the case law. No I do not provide them here.

  8. Andrew T

    Thank you. Thank you. Everyone is pinging me and saying this new policy is insane. I kept saying, “No, there’s a reason for it. Just not sure what it is.” This podcast really helped.

    A couple of quick observations.

    The parallel James drew between gays and Israel was probably more insightful than he realized – and I think, Gina, you interpreted it a bit differently than he originally intended – because you were thinking about how Israel persecutes the Palestinians (??) So, James noted that at first, Israel was simply struggling to get recognition. Then they struggled for recognition (I don’t remember which was the next phase, maybe not recognition?). However, where he stopped, and where Gina I think you were going, was that Israel then became the persecutors. Now, gay people are using the force of law to persecute those who don’t support their lifestyle. Note: I’m making a bunch of assumptions about what may or may not have been happening in James’ and Gina’s noggins. If, I’ve erred, please excuse that.

    OK, now, however, this additional phase (former persecutee becoming the persecutor) comes up again at the end of your conversation. James recommends that the Church take action. OK. I think only the most ardent Church supporter (one with a firm belief of prophetic infallibility) will argue the Church has handled it’s relationship with the gay community perfectly – so, yes, there’s plenty of room for improvement. However, shouldn’t James’ also have noted that there’s plenty of room for the gay community to improve it’s relationship with the Church? How often are they using the state to punish “injustices”? Is it always necessary? or would a little tolerance be in order? There seems to be plenty of polarization happening – on both sides. Peace is probably somewhere closer to the middle.

    Again, Gina, James, thank you. Great discussion.

  9. Dave Sonntag

    Gina and James, I loosely transcribed the most important part of your conversation below.

    The irony of this is that if polygamy, if the social and cultural environment of the church, if the inter-marrying of senior leadership, especially the Q15, as documented by Mike Quinn, have all led to an environment that has over-sampled for selection of homosexuals within the Mormon population, then this whole policy decision takes on the shit-stained patina of eugenics. Certainly Gina has commented on, and is aware of the cultural-flattening, bleaching and whitening and delightsoming of her Maori roots.

    Pull that thread, because I recall having seen something similar, maybe from a University of Utah thesis, or maybe in one of Mike Quinn’s book. Open the kimono, and show us your data!

    James Ord (beginning at 48:18 mark), referring to the likely conversation between church leadership and their legal counsel at Kirton and McKonkey (hereafter K&M or just Kirton), within the context he earlier describes of multiple national and local escheatments and disincorporation that happened to the church, ultimately leading them to abandon polygamy, and why that led to the church’s use of Corporation Sole for its current legal structure. [James also received a text earlier in the recording from one of his legal contacts, asserting that K&M had written the policy.]
    “…and so I think more than likely what has happened in this case is that they talked to the lawyers at Kirton, the lawyers at Kirton sat down and looked at the issues and said “These are the issues, this is how we noodled this out.” What would you do? And then they looked in their case law and their history and said “do we have anything similar?” And they pulled out the trove of polygamy cases and there we go. They come out and said “Why don’t we make this policy?” and it mirrors the polygamy policy, and then everybody is happy because “now we don’t have these individuals who are being caught in a slamming door. And we’re only going to have several years of kids who are caught in the collateral damage of it.” And that’s an acceptable risk because “we can mitigate the number of children that will be involved.”

    Because quite frankly Utah Mormons, and Mormons in general, breed homosexuals at a statistically significantly higher rate than the average population. In fact, I think the deviation is six to twelve points, depending on the study. So what you end up with is, it’s not in the 29% where you could almost assume a causal relationship, but it’s certainly beyond statistically significant. And so as a result of that, the fact is that Mormons just have to know that there are going to be lots of homosexuals in their gene pool. And these kind of issues are going to come up again and again and again, unless policy changes are made in order to protect the church from it. And with the courts shifting against the church’s historic position, it opens up the church for liability it just doesn’t want.

    Gina: OK, now we could speculate on genetically why that’s the case, what’s happening, but we’re not going to do that because we’d be here forever, but it would be interesting though. However, the thing that’s coming up for me is that this is extraordinarily Utah-centric, and it’s also kind of legal-centric, litigiousness, feels like. What I want to know, would they have offset this particular legal move against the social and cultural fallout? Ya know, did they talk to the PR department and say “Hey, if we roll this out, what’s gonna happen do ya think?”

    James: No, I don’t think they did. I don’t think President Newsroom is actually a policy-maker. I think they just have to deal with the policy that the church hands down. At least that’s been my experience. I think President Newsroom tends to not be in their councils in terms of making policy, only explaining policy.

  10. Jenny Ord Fitzner

    I probably won’t get a response, but I’m so curious to know if I’m somehow related to James. My great great grandfather and grandmother was Thomas Ord and Eleanor Grant Ord. They are the ones that were first baptized lds. Just curious if there’s any relation. I’m guessing yes. Loved the podcast.

  11. Allan West

    The tacit admission that the environment of the church is harmful for the children of gay parents… on the part of the church…. just lost them the battle.

    We now need to think of the position of children of heterosexual parents growing up in that church environment who are later, as adults finally understanding that they are in fact gay.

    The church, by admitting its culpability in harming children of gay parents, have also admitted that they are harming gay members who were born into the church.

    This is huge… and should gay members to file a class action suit (imagine what would happen should testimony, of the grotesque Mengele-like ‘conversion therapy’ BYU was doing, made it to the courts) it could become quite nasty.

  12. Glen

    James, can you shed some additional light on the subject of how a third-party (the church) can be subjected to a legal duty to protect a child or a parent from alienation claims. It seems to me that if a church simply requires the legal guardians to provide authorization for baptism or any other ordinance, then it has discharged any duty. Are there legal holdings in the United States that impose such a duty?
    If so, then it seems the same theory would support a claim by an individual in a married or non-married heterosexual relationship where the church attending parent and child are subjected to teachings that that his/her other parent is a bad person for not going to church or breaking the word of wisdom etc. If so, then all children should not be allowed to be baptized until they are adults.
    I recall the legal justifications (talking points) that were given for the Proposition 8 issue and, it seems, those fears were unjustified. Seems like the same issue in this case.
    What do you think.

  13. David Macfarlane

    James and Gina, thank you very much for the most enlightening conversation about this issue I’ve heard yet. We may respond emotionally to events, but the legal and economic underpinnings of any decision are what reveal true motivation. Like Gina, James, I was under the impression the activity rate in the church is closer to one-third, not two-thirds. I got that impression from articles like this in the Trib:

    Can you clarify? Is there a disconnect somewhere? Thanks.

    1. Doyle Oakey

      Activity rates quoted by James are VERY high relative to the best data sources available.

      1. Encyclopedia of Mormonism, using 1989 data reports a variety of measures, but no good measure of “inactivity” as defined by the COB or Church.

      .67% pray daily compared to 83% in other populations
      .60% of forty-year-olds attend 3-4 times a month
      .70% of converts stop attending after 3-5 years

      2. Cumorah Project

      .In the USA “Nationwide active membership is estimated at 2.5 million, or 40% of total church membership.” (

      .Mexico . . . Current nationwide active membership is estimated at between 250,000 and 300,000, or 20-25% of total membership. (

      .Colombia . . . “Nationwide active membership is estimated at 33,000 to 35,000, or 20% of total membership.” (

      .Chile . . . “Nationwide active membership is estimated at no more than 70,000, or 12% of total LDS membership.” (

      .Japan . . . “Nationwide active membership is estimated to range between 20,000 and 24,000, or 15-20% of total church membership.”

      James you understanding of LDS demographics globally is in error–deeply. You cited almost the reverse of the real figures.

      Of course, this depends on one’s definition of activity.

      1. Charles

        I have no idea how James is coming up with 60%. Just taking the reported statistics from general conference you can guess the activity rates must be around 30%….30,000 congregations and 15,000,000 at 60% is still 300 active per ward which is way high. We have a pretty large ward and we have 150 active tops.

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  16. Evelyn Coffey

    The clarification, of the policy, that the church issued completely negated any level of protection this new policy might have provided. Now a gay parent with joint custody can make alienation claims. They had it right the first time. Welcoming everyone would have offered greater protection with no collateral damage.

    Thanks to both of you for offering your thoughtful insights. I am going through the five stages of grief over this mess.

  17. Mary

    Mr. Ord seems to have quite a bit of understanding, but I am concerned that he is not familiar with basic details of Church life. As a Utah-raised Mormon, I did not attend Church 5 times a week. I went on Sunday, and again on Wednesday for an hour to participate in social activities.

    On legal matters, I defer to his expertise. But on other matters regarding Mormonism, I would encourage listeners to take those opinions as those of Mr. Ord and not those of Mormons or Mormonism.

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