Judge refusing to marry same-sex couples would go to Supreme Court

Attention has been focused like a laser in recent days on Marion County Circuit Judge Vance Day following revelations that an investigation has been launched into his judicial conduct over refusing to perform same-sex marriages.

Initial reports about the investigation by the Commission on Judicial Fitness and Disability snowballed into mentions of Adolf Hitler, Navy SEAL Team Six, firearms, constitutional freedoms and the Supreme Court of the United States.

Day is mounting a legal defense, contending that Oregon's rules of conduct for judges are so vague that they violate his First Amendment rights to freedom of religion and speech.

"I don't believe that by taking the oath as a judge, that I somehow set aside my First Amendment civil liberties and that as a judge I’m a lesser species of protection," he said Thursday in a telephone interview.

Where it began

When the media first began reporting on the investigation of Day last week, it was unclear who filed the first ethics complaint against him.

"I sent the notice," Day said. "I self reported."

Day said he sent a letter to the judicial fitness commission in 2014 to self report an incident in which a veteran who is also a felon handled an unloaded firearm in the judge's presence.

In June, Day received another, unrelated complaint notice from the judicial fitness commission. Day isn't sure who at the Marion County Courthouse submitted that complaint, but he said he believes it coincides with his decision in the spring not to perform same-sex marriages.

"I think that was the catalyst for this kitchen sink approach to filing these ethics complaints," he said.

Day, a former head of the Oregon Republican Party, said his former political affiliations have made him a potential "punching bag" for "elements of society who view Republican ideas as not being worthy of recognition in the public square."

Patrick Korten, Day's spokesman, said the judge learned of the complaint on June 23. At that time, the information wasn't public; those kinds of complaints are usually confidential until 14 days before the public hearing.

But because Day requested to create a legal defense fund from the Oregon Government Ethics Commission in a public meeting on Sept. 3, the media got wind of the investigation.

Reports then came out that Day had stopped performing all marriages and instructed his staff to divert same-sex marriage requests to other Marion County officials. Day is not required to perform marriages.

Then news broke of the judicial fitness commission's specific claims against Day. As the Statesman Journal reported, there were 13 total counts saying Day violated the state constitution and judicial conduct rules. Day denied all the allegations.

The allegations

Allegations against Day include that he gave false statements to the commission; knowingly violated the law when he allowed a convicted felon to handle a firearm; and collected money from lawyers for a wall decorations project.

A count also claims Day hung a portrait of Adolf Hitler in the courthouse. Day and Korten said a wall decoration did include a portrait of Hitler, though the portrait was taken from Germany during World War II as a war trophy by an American combat doctor treating wounded soldiers.

There are eight counts stemming from Day's interactions with a veteran identified only as "BAS" who is said to be a decorated former member of Navy SEAL Team Six. The SEAL was enrolled in the Veteran's Treatment Court, which Day oversees, for felony DUII. The counts say Day allowed BAS to handle firearms, even though felons are not to handle guns in Oregon.

Another count said Day required BAS to read a book as part of the veteran's court, "even though BAS expressed that reading the book exacerbated his post traumatic stress disorder, or PTSD, symptoms and threatened his sobriety."

"On another occasion, Judge Day forced other veterans appearing in the VTC (Veteran's Treatment Court) to remain in the room and watch a video that exacerbated PTSD symptoms in some of them," the complaint said.

Day denied those allegations and said he was proud of his treatment of veterans in the courtroom.

"If people have concerns about how I handled the veterans court, then they should talk to the veterans," Day said.

Another charge said that when Day decided to not perform same-sex marriages, he violated Oregon's judicial conduct rules that judges may not manifest bias based on sexual orientation.

Where it could go

This case has potential to be a test case with national implications showing just how far courts intend to go in making public officials comply with same-sex marriage laws.

"This case is unique because so far it's the only one I'm aware of where a sitting judge has been taken to task for same-sex marriage in the context of a responsibility that he does not have," Korten said.

Day claims in his defense that the United States Constitution protects his decision to not marry same-sex couples because the decision is "core political and religious speech." Day said in his response to the judicial fitness commission that First Amendment and Fourteenth Amendment protections apply to some of his conduct.

If the commission rules against Day and the Oregon Supreme Court enforces a punishment based on what Day and his legal staff consider to be unconstitutional grounds, they could appeal directly to the Supreme Court of the United States.

Is it likely the case could go that far?

"That will depend entirely on which counts the commission and the Oregon Supreme Court decide to give weight to," Korten said.

Day had stronger words on whether he'd appeal to the Supreme Court.

"I think I would be doing a disservice to the Constitution if I did not," he said. "As a citizen of this great republic, I don't deserve lesser protection of my First Amendment rights just because I’m a judge."

This case could take months to resolve. In the meantime, Day said he will continue working and is glad for the support he's received.

"My family takes solace in the great number of kind emails, text messages, faxes, and notes that I’ve received from people we know and people we don’t," he said.

A public hearing is scheduled for Nov. 9 during which Day will have a chance to defend himself.

"I will bring forth evidence, and I believe that the evidence says I didn’t do anything wrong," Day said.

gfriedman2@statesmanjournal.com, (503) 399-6653 or on Twitter @gordonrfriedman