Oregon Judge Vance Day has filed an appeal to the U.S. Supreme Court after being found unfit to serve as a judge, a ruling upheld by the Oregon Supreme Court. Day and his legal team claim that he was denied his constitutional right to free expression of religion. Another constitutional right was denied, they claim, when his due process rights were denied at trial. Day hopes to have Oregon’s judicial fitness ruling, along with felony criminal convictions, overturned at the nation’s highest court.
The U.S. Supreme Court will hear the certiorari claim on October 5. Four aye votes are required to advance to hearing. The Vance Day case has sparked keen interest in observers concerned with First Amendment protections for the free exercise of religion. The Oregon Commission on Judicial Fitness and Disability began investigating Day after he declined to perform same-sex marriages in accordance with his faith.
As previously reported by PJ Media,
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.
In an interview with PJ Media, Day’s attorney, Jim Bopp, raised significant constitutional concerns regarding the charges. The first and most prominent constitutional defense concerns Day’s right to free exercise of religion. Bopp says,
Against the same sex marriage bias charge, we asserted his free exercise rights not to participate in something that violated his religious conscience. Of course, performing marriages at all is completely voluntary. It’s not a regular part of the duties of a judge to perform marriages. It is purely voluntary, and they can decide to do them on any basis what they want. Some do, and some don’t.
County prosecutors also charged Day with two felony charges of aiding and abetting a felon in possession of a firearm. Day’s legal team has challenged the charges on the grounds that the state denied him due process when his accuser refused to travel to Oregon to testify. The original court allowed him to testify by phone. Bopp says,
We also make constitutional defenses that he was denied due process. Every proceeding. of course, has to comply with the Constitutional protections of due process which include being able to confront your accuser, knowing the charges ahead of time. He [Day’s accuser in the felony charges] didn’t testify in person, and he wasn’t able to be deposed ahead of time, and all sorts of problems arose. We made some very substantial constitutional defenses.
Bopp said that such an arrangement doesn’t allow for proper cross-examination:
Judge Day’s lawyers were never able to depose this guy because of his intransigence, and ultimately the government didn’t force him, either the commission or the Supreme Court, to to submit to a deposition. Then they took his testimony over the phone, not in person, and then based upon phone testimony decided that he was credible. A critical part of determining the credibility of the witness is their demeanor. You can’t ascertain their demeanor over the phone. The defense was also handicapped because they weren’t able to give him any exhibits. During cross-examination, they couldn’t handle an exhibit and testify about it. They were really grossly handicapped by this. We think it denies due process, your ability to confront your accuser.
The Oregon Supreme Court virtually ignored these constitutional arguments, Bopp says.
Well, we then get a decision at the Oregon Supreme Court and guess what? Two things happen. Number one, they refused to consider the free exercise defense against the same-sex marriage charge and found him guilty anyway. They found him guilty of violating that canon, and then being biased against homosexuals, while refusing to consider his First Amendment claim. That is beyond belief! It really is as if the state court is against that right now. They can’t find somebody guilty when the Constitution protects him against that.
Bopp expressed astonishment at the refusal of the court to even consider Day’s constitutional protections.
This would be like, ok, we found you guilty of burning the flag, and we’re not going to consider your constitutional defenses that provide that it’s a constitutional right for you to burn a flag. We’re going to find you guilty anyway.
All of this makes it appear that the legal system in Oregon had a particular agenda with Judge Day. Bopp summed it up by comparing it to the recent cake baking decision in Colorado — a conviction overturned in large part due to the obvious bias and hostility exhibited by the court in that state.
What we have is the is a rush to judgment where the constitutional protections are substantial and numerous. Constitutional protections of Judge Day are just swept to the side by either refusing to consider them or ignoring them or summarily rejecting it. And, of course, part of our argument is that there was bias and hostility that was exhibited by the commission and by the court against Judge Day because of his religious views. We saw in the recent Masterpiece Cake case that you know that that’s why the Supreme Court reversed the guilty finding there because of the evident hostility exhibited by the state of Colorado and the decision-makers there. That’s the same problem as occurred here and most dramatically when they won’t even consider his constitutional defenses and find him guilty anyway.
Bill Currier, chairman of the Oregon Republican Party, agrees that this is little more than a political hit job.
Justice delayed is justice denied. The politically motivated bureaucracy that has affected his life is unfair to anyone, to be treated in this way by the various Oregon agencies involved.
Currier has a background in law enforcement, serving as a police officer in both California and Oregon. He says that the state failed to prove its case in court, and questions the ruling by the Supreme Court. He tells PJ Media,
The evidence at trial clearly did not establish any violation or culpability on his part for violating any laws or even treatment of the people that might have come before him to get married. In fact, he was doing what many judges in Oregon do, is they recuse themselves as they’re supposed to do according to their code. He did what every other judge actually does routinely… in the course of performing their responsibilities as a judge. He was handled differently than other cases. The fact that it’s even a case at all is surprising.
Currier fears the consequences of this decision. Should Day’s religious expression and due process rights be denied by the U.S. Supreme Court, it would open up a Pandora’s box of protected classes having more rights than the individual.
It would mean that a protected class could assert its values were greater than another protected class, and the question would become which protected classes have the higher position on the totem pole. I don’t know that mob rule might be too strong, but it would mean it would open the way to more tyrannical rule because the rights of the individual would fade, quickly to to be replaced by the interpreted or perceived rights of the other group. Then it becomes group against group because when it’s individual everything everybody’s on an even playing field. When groups are against groups for rights then it becomes the size, the influence, and power of that group. It totally changes the dynamic of the evaluation of of how rights are applied.