In Oregon, a judge is fighting for his very freedom along with his livelihood, while defending his First Amendment right to practice his religion. Judge Vance Day is an evangelical Christian, former chairman of the state GOP, and a presiding judge in the 3rd Circuit Court in Salem. He has been unanimously recommended for dismissal as a judge by the state Judicial Fitness Commission and was charged with two felonies by the Marion County district attorney and many are saying this is all the result of his refusal to perform same-sex marriage ceremonies. The legal challenges appear to be driven by a political agenda to silence those who would refuse to fall in line and actively participate in same-sex marriage.
Judge Day has so far spent almost $700,000 on his legal defense, between the Judicial Fitness hearings and the felony charges. The case originally began when Day instructed his staff to refer any applicants for his services as a wedding officiant to a different judge if the couple was of the same sex. Day’s faith informs him that homosexuality is a sin. The report by the Judicial Fitness Commission includes eight counts, only one of which is related to the same-sex marriage issue. The 48-page report contains a lot of information, including a spurious charge that the married Day was somehow thought to be using FarmersOnly.com, an online dating service. Further investigation revealed that to be a false charge.
Day is being represented in his Judicial Fitness case by attorney Jim Bopp, Jr., who successfully tried the Citizens United case at the United States Supreme Court on constitutional grounds. Bopp strongly believes that Day has a constitutional case in his defense based on his First Amendment protections to freely practice his religion.
In an interview, Bopp described the constitutional challenges he is making to the Judicial Fitness charges:
There’s quite a few counts that relate to constitutional defenses, and I’m helping him with all of them. The main one is the religious freedom issue. We’re defending some of the charges based on the fact that the effort by the state amounts to disciplining him for not doing something that is his religious faith prohibits him from doing. They’re trying to punish him for following his religious faith. It’s a First Amendment issue.
When asked if the charges are being pushed because of a political agenda, Bopp was adamant:
I don’t think there’s any doubt about that. It came to their attention because he declined to perform same sex marriages, even though he’s never been asked to do one. As a general matter of principle, he would not perform them. As a result of that, they seem to have thrown everything but the kitchen sink at him. Many of the things are very trivial, so it seems like they’re trying to hit him with as many things as they can.
According to Bopp, Day had a spotless record as a judge prior to the legalization of same-sex marriage in Oregon and his subsequent refusal to perform the ceremonies:
Before this matter began with the same sex marriage issue, there was no issue at all. There were no problems of any kind. It’s not like he was involved in a series of issues. His record was unblemished. What brought him to their attention was the same sex marriage issue, not anything else. I don’t see how you could come to the conclusion that he was causing trouble or that he had it coming when there were no prior issues.
Perhaps the most important issue of all, according to Bopp, is that judges are not required to perform marriages at all in Oregon and can refuse to do so for any reason:
Judges in Oregon are not required to do marriages. This is purely optional. Some don’t do marriages at all. Most judges who do marriages restrict them in some way. Maybe they’ll marry people only from their own church, or their own county, or only on a Saturday but not a Sunday. It’s a purely optional activity. There are plenty of judges who will perform marriages, including same sex marriages. There was nobody harmed by Judge Day’s decision. He did very few marriages in the past anyway. He decided to forego them completely once it became clear that the government was going to force him to do same sex marriages unless he stopped doing marriages completely.
The bottom line, says Bopp, is conformity instead of diversity:
They’re not satisfied with tolerance, and they’re certainly not satisfied with diversity. What they want is conformity, and for everyone actually to participate in activities that their religious faith informs them is inappropriate. This is the opposite of tolerance or respect for diversity. This is government coerced conformity to a particular agenda.
The felony charges — two charges of facilitating use of a gun by a felon — were the result of information gathered in the Judicial Fitness Commission report. The Marion County district attorney referred the case to the Oregon attorney general’s office for review. The attorney general’s office then applied for and was granted a grand jury trial. The indictment was handed down by the grand jury the day before the statute of limitations was set to run out. Day denies the charges, saying that, without his knowledge, his son handled firearms with a veteran charged with a felony in Day’s court.
Oregon Attorney General Ellen Rosenblum (D-Portland) is a strong supporter of gay rights — and vice versa. Public records show that she has received more than $10,000 in campaign contributions from various LGBT organizations, and much more from LGBT individuals. In turn, she has donated almost $6,000 to various LGBT causes since 2011. Some observers in Oregon believe the felony criminal charges against Day are a gift to the LGBT community from the (activist Democrat) AG’s office. Rosenblum is no stranger to questionable political arrangements, being married to Mark Zusman, the publisher of the far-left weekly newspaper Willamette Week. Rosenblum originally ran for attorney general on a platform of stopping sexual trafficking of minors in Oregon while Willamette Week continued to publish classified ads from Backpage, a website that allows digital ads from escorts.
Day was appointed to the 3rd Circuit Court in Salem, Oregon, in 2011. In 2013, he began serving on the Veterans Treatment Court, which routes veterans charged with non-violent crimes into specific programs for substance abuse or mental health treatment. He also occasionally performed marriage ceremonies. In 2014, Judge Michael McShane overturned Oregon’s voter-passed constitutional definition of marriage as being solely between one man and one woman in his ruling in the case Geiger v. Kitzhaber. Soon after that ruling, which legalized same-sex marriage in Oregon, Judge Day instructed his staff that if they should receive a request to perform a same-sex marriage ceremony, they were to refer the inquiry to another judge.
The Judicial Fitness Report includes a charge that Day instructed his staff to lie about his availability on the judicial calendar. Under oath in a hearing of the Judicial Fitness Commission, those staff members rescinded that testimony.
A hearing was held on April 14 to dismiss the felony charges against Day on the grounds that Marion County District Attorney Walter Beglau improperly sought an indictment and improperly referred the case to the attorney general’s office. A ruling has not yet been made. If the case is not dismissed, trial begins July 10. The Judicial Fitness Commission report is currently being appealed to the Oregon Supreme Court. Day has said that if the commission ruling stands, he’s ready to appeal to the United States Supreme Court. With the confirmation of Neil Gorsuch restoring the 5-4 conservative majority on the court, both Day and Bopp have expressed optimism that they can secure a favorable ruling.
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