Sunday, August 23, 2015

The Fight For the White House: The Gortz Haus Controversy


Have a look at this:

The couple Ted Cruz is talking to in this video are Betty and Richard Odgaard. The Odgaards are (or perhaps I should say: were) proprietors of Görtz Haus.

Görtz Haus was a bistro, art gallery and event venue in a suburb of Des Moines, Iowa. When it came to events, it mainly "hosted weddings", an activity it was well suited to, given that the building had been (and still retained a lot of the characteristics of) a church.   

In 2013, the Odgaards were approached by Lee Stafford and Jared Ellers, who wanted to hire the venue. The Odgaards, however, turned them down on the grounds that Stafford and Ellers were a same-sex couple and that, given their Mennonite faith, they had objections to gay marriages.

Stafford and Ellers promptly filed a complaint with the Iowa Civil Rights Commission. Not to be outdone, the Odgaards in turn filed a petition with a district court in Iowa, requesting the court to declare that they had not violated the Iowan Civil Rights Act and had not discriminated against Stafford and Ellers on the basis of sexual orientation.

The court dismissed their petition, stating that the Commission would have to give its ruling before the court could be involved. The Odgaards appealed against this with the Iowa Supreme Court, but before that court could rule on the matter the case was settled out of court. The settlement effectively meant that the Odgaards paid out $ 5,000 to Stafford and Ellers; in turn, the complaint lodged with the Civil Rights Commission was withdrawn.

In 2007, the Iowa Civil Rights Act was passed, which meant that from that moment on discrimination on the grounds of sexual orientation was prohibited. In 2009, same-sex marriages became legal in Iowa.

Back to the video.

In it, Cruz refers to Görtz Haus as a "church". He also refers to the Odgaards actions as "refusing to allow to host a gay wedding" at this church.

The first claim is certainly false. Görtz Haus was not a church. It used to be, but when the Odgaards bought the property, it had lost its religious function. It was a privately owned but publicly accessible property that the Odgaards used for their own commercial endeavours; these endeavours were, however, to a certain extent shaped by their personal religious beliefs. 

The second claim is misleading at the least. After all, what does "hosting a wedding" actually mean? Well, in this case, we know what it didn't mean. We know, more specifically, that Stafford and Ellers did not wish to be married at Görtz Haus. They had, in fact, already wed elsewhere before they contacted the Odgaards. In other words, their desire was merely to host a party or ceremony to celebrate that fact.

This immediately makes the case very different to what Cruz is insinuating in the video. If, after all, Görtz had still been a church (a Mennonite church, say), it could of course have refused to conduct a gay wedding based on the principles of that church's faith. I do not believe that anyone would wish to dispute that.

If, alternatively, Görtz was simply a commercial enterprise open to the public (which indeed it  was), but had been requested to host the actual wedding (a wedding that would therefore be conducted on the premises), the question that arises is whether the Odgaards could be required to facilitate or accommodate that wedding in spite of the fact that it was contrary to their religious beliefs.

That question is, frankly, not an easy one to answer, since there are clearly two strong principles involved which clash. Furthermore it's basically an issue which would have to be decided on the basis of Iowan law, so that even if a clear answer could be given, its impact would be limited to that state.

Nonetheless, a few comments can be made. Firstly, the fact that same-sex marriages are legal in Iowa (and have been since 2009) obviously means that the Odgaards could not have refused to host a gay wedding simply on the grounds that such weddings were prohibited under the law.

More complicated are the provisions of the Civil Rights Act, as amended in 2007. The Act states that it is a discriminatory practice "for any proprietor (...) of any public accommodation (...) [t]o refuse or deny to any person because of (...) sexual orientation, the accommodations, advantages, facilities, services or privileges thereof". That seems reasonably clear, but it should be understood that, at the same time as this clause was added (2007) the Act also  stated that nothing in it could be construed as allowing same-sex marriage. (Remember: at that time same-sex marriages were not yet allowed; that only changed in 2009.)

So the argument could be made (and was in fact made by the Odgaards' lawyers) that the Act's intent must be that the refusal to participate in or accommodate a same-sex marriage cannot on its own constitute a sexual orientation discrimination.

Such an argument (and there are others) might be plausible. I am not at all certain the Odgaards would have prevailed, but it seems to me that they would, at the least, have had a reasonable case. And even if it's still rather iffy from a legal standpoint, it seems morally acceptable to me.

The thing is, though, we'll never know. As I said, the Odgaards weren't asked to actually facilitate in or accommodate a same-sex marriage; they were only asked to rent their property to a gay couple who had already gotten married and now wanted to hold a party (or ceremony) for friends and family. And in any case, the Odgaards withdrew their lawsuit and settled the matter before the courts could give a substantive ruling on the issues.  

So, what are we left with here? Well, fairly little, really. We are left with a fledgling lawsuit that never hatched and a very modest settlement that couldn't really have hurt anyone, including the Odgaards. We are hardly left with, as Cruz states portentously, "an incredible journey fighting to defend religious liberty".


A few final words. In the video, the Odgaards are clearly depicted as victims. They stood up for their religious beliefs, and now, the video suggests, they have had to close down their business.

One wonders, however, whether the Odgaards are perhaps playing the victim card too vigorously.

Firstly, it seems they view themselves a little too optimistically. "I would never discriminate in any area", Betty Odgaard at one point told a local TV station, "that's not who I am". But clearly they had done just that against Stafford and Ellers. The question is not whether their actions were discriminatory, the question is whether such discriminatory action should in some instances be accepted on the grounds of religious conviction. Either the Odgaards do not quite understand this, or they are being purposefully abstruse.

Secondly, their decision to close down the "hosting of weddings" was a decision they made themselves, and it was one they made surprisingly readily. As I understand it, they had had just this one single complaint lodged against them in the period from 2009 through 2013, and no more. And that complaint never reached fruition, since neither the Civil Rights Commission nor the courts gave final substantive rulings. Nevertheless, they still decided to stop hosting all weddings and then decided to close Görtz Haus altogether. 

It is, of course, possible that public opinion had turned against them to such an extent that they simply didn't have enough costumers left; if that, however, was the case, then it clearly shows that it was time they started doing something else anyway; their "incredible journey" is nothing more than evidence of a failing business model. 

If, alternatively, that were not the case, their course of action seems to be a rather odd rush to victimhood.

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