A circuit court judge in Oregon is beginning two weeks of hearings before a state panel as he pushes back against allegations he is unfit to serve on the bench because he will not officiate same-sex weddings.
In 2014, Oregon’s definition of marriage as the union of one man and one woman was thrown out by court order and the state refused to appeal the decision. There is no requirement for judges in the state to perform weddings but some choose to do so. Day informed his staff to politely decline if any same-sex couple requested him to perform their ceremony and refer them to judges who would do the job.
“So nobody was being deprived of the right to have a gay marriage. He was simply asking that he be excused from that task,” said Patrick Korten, media adviser to Judge Day.
Later in 2014, Day decided to stop officiating weddings altogether.
Now, Judge Day faces 13 counts before the Oregon Commission on Judicial Fitness and Disability, but his supporters say there’s really only one.
“Frankly, 12 of the 13 are largely window dressing to cover over the fact the real issue here is the same sex marriage decision,” said Korten.
Other charges include allegations that Day improperly used his office by handing a business card to a high school soccer referee who asked for one after Day complained about the officiating in a game where his son suffered a concussion. Korten says the commission hearing this case already threw out the soccer game-related charges but now they’re back.
As for the big issue in this case, Korten says the facts in this are clear and entirely on Judge Day’s side.
“The fact of the matter is that nobody wound up asking for [Day to perform gay weddings]. Nobody even knew about it until much later, when one of his staff members complained to the commission, ‘Do you know what the judge did?’ and that has become a cause celebre,” said Korten.
If no one was turned away then what’s the problem?
“The objection is that simply declining to perform a same-sex wedding presents evidence of bias,” said Korten.
Judge Day is represented in this process by James Bopp, Jr. of the Madison Center for Free Speech. Koren says the defense strategy relies on basic constitutional protections.
“He and they are contending when you become a circuit court judge in Oregon or anyplace else, you do not give up your first amendment rights to speak, and it’s not as if he spoke loudly,” said Korten, who points out Day said nothing publicly that should have triggered any probe.
“He didn’t make a public fuss about it. He didn’t make a big deal about it. He certainly didn’t say anything about gay couples plus or minus in any way. Simply by declining to conduct such marriages, they decided that was a questioning of his fitness to serve as a judge,” added Korten.
Should the commission rule against Judge Day, Korten says it would be a dark day for American liberty.
“It certainly would have a chilling impact on conscience. This is already a problem all over the country since the Supreme Court decision came down last summer,” said Korten. “You have an awful lot of cases where people are being castigated simply for holding a view that was well nigh universal before the Supreme Court decision came down.”
He says this case and others like it really have nothing to do with fairness but with a determination to force compliance with an agenda.
“In effect, what those who won this legal battle over same-sex marriage are doing is trying to castigate all those, a majority of the people of those states, who had the temerity to express a public policy view that was at variance with theirs,” said Korten.
The Oregon Commission on Judicial Fitness and Disability is comprised of volunteers, but the case is being prosecuted by the commission’s executive director, Susan Isaacs, and other staff members.
Nonetheless, Korten says Judge Day believes the commission will ultimately rule in his favor.
“He feels confident that if there is a fair hearing given to the charges and his response to it, that they will simply do what they did in the case of those soccer business card accounts a couple of years ago, they’ll simply dismiss it,” said Korten.
Hearings will go on for two more weeks. It could be months after that before a verdict is rendered and that ruling could then be appealed to the courts.
“If there’s fairness anywhere in the world, these charges will be dismissed,” said Korten.
