Metro Weekly

Oregon Supreme Court rules judge violated judicial ethics by refusing to marry gay couples

Judge Vance Day reportedly directed his staff tell couples he was unavailable if the partners were the same gender

Vance Day – Photo: KOIN 6.

The Oregon Supreme Court has suspended a Marion County judge for violating judicial ethics for refusing to marry same-sex couples, the Statesman Journal reports.

The court affirmed the findings of the Oregon Commission on Judicial Fitness and Disability, which had alleged that Judge Vance Day had devised a scheme to avoid marrying same-gender couples by having his staff investigate their sex and tell couples that he was unavailable if they were of the same gender. The court also affirmed the commission’s recommendation that Day be suspended for three years without pay.

Lambda Legal, which filed an amicus brief in support of the commission’s findings, argued that “a judge’s refusal to perform marriages for same-sex couples on equal terms as for different-sex couples violates the most basic rules governing judicial conduct.” It also noted that the fact that judges may refuse to perform marriages altogether does not mean that they can discriminate against certain types of marriages once they agree to perform others.

“By devising and implementing this scheme to turn away same-sex couples while continuing to perform marriages for different-sex couples, Judge Day manifested bias and prejudice based on sexual orientation,” the group concluded.

“Courts must be open for business to everyone, regardless of one’s sexual orientation. No government employee can refuse to serve a member of the general public based on bias or prejudice, much less a judge entrusted with public office who takes an oath to perform judicial duties fairly and impartially,” Lambda Legal Senior Attorney Peter Renn said in a statement. “Although judges are not required to perform marriages, they must refrain from bias or prejudice when they choose to do so.”

Other courts have reached similar conclusions reached by disciplinary boards and tribunals, finding that judges may recuse themselves from performing marriages altogether, but cannot pick-and-choose whom they wish to marry.

“A judge is a public official, not a priest, and is required to perform the duties of the office without bias or prejudice,” Lambda Fair Courts Project Ethan Rice said in a statement. “We applaud the Oregon Supreme Court for reaffirming that responsibility. Judicial ethics rules that include anti-discrimination provisions on the basis of sexual orientation and gender identity are critical to ensuring fairness in the courts, and to maintaining public confidence in the impartiality of courts.”

Day can file a petition to have the state Supreme Court reconsider its decision. But if he does not file within 14 days, the judgment and resulting penalty will take effect.

“We are saddened that a suspension was imposed,” Day’s attorney, Janet Schroer, told the press. “We are evaluating an appeal to the United States Supreme Court.”

Beyond his suspension for ethical violations, Day still faces criminal charges for allegedly providing a gun to a man, who, at the time, was a convicted felon. That trial is scheduled to begin April 17.

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