SALEM — Sincerely held religious beliefs that compelled Marion County Circuit Judge Vance Day not to perform same-sex marriages are not a reason for him to be permanently removed from the bench, his lawyer argued during an hourlong hearing last month before the Oregon Supreme Court.
Nor, according to that attorney, are any of the other reasons to do so claimed by a state panel.
As reported by The Oregonian, the Supreme Court heard arguments from both sides June 14. The state justices did not indicate when they will decide about Day’s professional future. The possible punishment could range from as light as a public reprimand to as severe as removal from office.
A licensed attorney in Oregon since 1991, Day is a devout Christian. He was appointed to the Marion County court post in 2011 and elected to a full six-year term in 2012. Following the May 2014 federal court decision making same-sex marriage legal in Oregon, Day stopped doing any wedding ceremonies.
Day was suspended from the bench last November, when he was arraigned on felony and misdemeanor accusations that he provided a gun to a felon on two occasions and used his position to obtain a benefit in 2013 and 2014. Day faces trial in November and insists he has committed no crimes.
The Oregon Commission on Judicial Fitness and Disability in 2016 found Day’s Christian beliefs regarding marriage to be incompatible with his duties, and that panel recommended he be removed from his job for that and other reasons. The commission had held a nine-day hearing in November 2015 into Day’s conduct and concluded he has undermined public trust in the judiciary.
The panel claimed that Day:
•showed discrimination by telling his staff members that they would have to check his schedule before he could perform a wedding, and also instructed staff to tell any gay couples seeking marriage that he would be unavailable on the requested day and to contact another judge.
•intentionally deceived media and the public by contending that he was being unfairly targeted because of his religious beliefs, when in reality the commission had been investigating him for other concerns before hearing of his refusal to marry same-sex couples.
•engaged in a pattern of dishonesty, much of which aimed to cover up misconduct.
•showed little understanding of the behavioral and ethical boundaries for a judge.
At last month’s hearing, Day’s attorney, Janet Schroer, acknowledged that he has made some mistakes, but that he also has learned from them. However, she refused to say that Day’s controversial decision not to marry same-sex couples was one of his mistakes. Schroer said Day believes his religious beliefs on marriage are protected by the First Amendment.
Schroer acknowledged that Day had asked his staff to tell gay couples seeking a ceremony that his schedule was already full. But she said Day’s plan was never carried out because the one time that a same-sex couple made such a request, he actually was too busy.
Day has decided to perform no future weddings at all. For judges, the choice of whether to perform such ceremonies is optional. Some opt to do so, and others don’t.
The attorney for the state commission, Timothy Volpert, countered that Day’s work as a judge should be ended for a variety of reasons, including that Day was dishonest during the November 2015 hearing. For example, Volpert said Day lied when he said he didn’t remember that the man who handled the gun was a felon. The man was a defendant in the Marion County veterans treatment court program whom Day had enlisted to do odd jobs for his family.
Schroer criticized the commission for considering the veteran’s testimony credible and said Day was the more credible witness. But Volpert said other witnesses support what the veteran said.
In the 2015 hearing, more than 40 witnesses testified for Day, Schroer noted. She said the evidence shows Day to be a man of character and integrity who has acknowledged his errors in judgment and has changed his behavior.