Oregon judge admits to mistakes, but not marrying same-sex couples isn't one of them

Oregon judge admits to mistakes, but not marrying same-sex couples isn't one of them
American Bar Association (ABA)
By Stephanie Francis Ward
Posted Jun 16, 2017 02:56 pm CDT

An Oregon judge, who reportedly displayed a portrait of Adolf Hitler at his courthouse and twice provided a felon with a gun, directed his staff to lie about his availability to same-sex couples looking to marry, according to the state’s Commission on Judicial Fitness and Disability.

Vance Day, a state circuit court judge, admits he’s made some mistakes, his attorney Janet Schroer told the Oregon Supreme Court on Wednesday–but refusing to marry same-sex couples is not one of them, because her client opposes such unions based on his "sincerely held" religious beliefs, Oregon Live reports.

In addition, the commission found that Day used his judicial business card to try and intimidate a referee at his son’s college soccer game. Day also was charged with two felony counts of a felon in possession of a firearm for allegedly aiding and abetting the crime, and two misdemeanor counts of official misconduct.

The Oregon Supreme Court has not indicated when it will rule on Day, according to the article. Punishment could range from public reprimand to removal from the bench.

"The commission’s findings have him doing so many bad things that trying not to marry same-sex couples should be the least of it," Douglas Laycock, a University of Virginia School of Law professor, told the ABA Journal.

Federal protections on the issue are limited, Laycock added, and unlikely to apply to Day’s situation. Also, Laycock wrote in an email, Oregon does not have state-law protection for the exercise of religion.

Various officers of the courts have publicly opposed same-sex marriage.

Roy Moore, the former chief judge of the Alabama Supreme Court, was suspended by a special supreme court of retired judges in April, after he issued an order that probate judges there had a "ministerial duty to not give gay couples marriage licenses." Earlier, the Alabama Court of the Judiciary found that Moore’s directive was contrary to both federal orders and Obergefell v. Hodges, the 2015 landmark U.S. Supreme Court case that found same-sex couples have a constitutional right to marry.

And in Wyoming, the state supreme court in March publicly censured a state court magistrate, who had said religious beliefs would prevent her from presiding over a same-sex marriage The court did not adopt a Wyoming Commission on Judicial Conduct and Ethics recommendation that Ruth Neely, who is not a lawyer, be removed from her job.

Some judges marry anyone who asks, and may get paid for doing so, according to Laycock, and others perform the ceremonies on a limited basis–usually for someone they know. In Laycock’s view, both should be viewed as a religious context if that’s part of the judge’s beliefs.

"But that is not how the judicial ethics opinions and the few court decisions have been going," wrote Laycock, who has argued many landmark religious cases in the U.S. Supreme Court. "I don’t think that anyone in authority has been willing to protect judges so far, except in Delaware where, by statute, no one with authority to perform weddings has to do any wedding that he doesn’t want to do."

In Day’s situation, he reportedly told staff to investigate couples who asked that he marry them. If the staff thought the couple was gay, they were told to tell the couple that Day had a full schedule. Schroer told the Oregon Supreme Court that this plan was never carried out, because only one same-sex couple asked Day to perform their marriage ceremony and he was actually too busy to do it on the specific day requested.

Day’s attorney also told the court that this was no longer an issue, because Day–who hasn’t heard cases since November– has decided to stop performing wedding ceremonies if he returns to the bench. His criminal trial is expected to take place in November, Oregon Live reports.

A defense fund has been created on Day’s behalf. According to its website, his policy of not performing same-sex marriages does not alter gay couples’ rights to marry in Marion County, where he is a judge.

In regards to providing a felon with gun, the website states that Day was acting as a "good samaritan and helping a disabled veteran." According to the Judicial Fitness and Disability Commission finding, Day allowed a man in his veteran treatment court program, who pleaded guilty to driving under the influence, handle a gun at Day’s family events, and the man went target shooting with Day’s son.

"The charges are false and independent witnesses have stated that Judge Day did no such thing," states the defense fund website, which claims that his legal fees as of April were more than $650,000. Read more