Even though he hasn’t performed any marriages since the Supreme Court declared same-sex marriage a constitutional right, and no same-sex couple has ever asked him to marry them, and judges don’t have to perform any weddings at all, an Oregon judge faces possible removal from the bench for refusing to perform same-sex marriages. Marion County Circuit Judge Vance Day faces the end of his judicial career for not doing what he isn’t legally obligated to do.

Day is charged with 13 counts of ethics violations, which are being heard by the nine-member Commission on Judicial Fitness and Disability in Salem, Oregon. The hearing began last Monday and is expected to wrap up this week. Here is a summary of the charges and Day’s response prepared by his lawyers.

A Witch Hunt?

The major charge against him is that he violated Rule 3.3(B) of the Oregon Code of Judicial Conduct, which states that judges shall not manifest bias or prejudice against anyone. His defense is that the code of conduct is unconstitutional — it is so vaguely written it violates his First Amendment right to free speech and exercise of religion. He explained during an interview with The Statesman-Journal, “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.”

Realizing last summer that their far-reaching witch hunt against Day over same-sex marriage was looking sillier and sillier, the commission decided to dredge up other allegations of misconduct in the hope that something would stick.

Consequently, the hearing has focused on other charges of judicial conduct. The charges are mostly minor and petty, and Day denies them all.

Six of the 12 other charges relate to his relation with former Navy SEAL Brian Shehan, a veteran with post-traumatic stress disorder and substance abuse problems who had appeared before him in the Veterans Treatment Court. Day had taken him under his wing, hiring him to do odd jobs, inviting him over for holiday meals and helping him fix his wood stove.

Two charges, for example, blame him for letting Shehan, a felon, illegally hold a gun on two different occasions, and for falsely claiming the authority to waive the law. It sounds bad. It isn’t. In one case  Shehan briefly held a gun he found in a cabinet he was repairing. In the other, he claims to have held a gun owned by Day’s son. Day denies giving Shehan permission to handle the firearms, and the deputy District Attorney who discussed one of the incidents with Day admitted, “The passing contact with the pistol did not adversely affect” the veteran’s participation in the VTC program.

“If people have concerns about how I handled the veterans court,” Day says, “then they should talk to the veterans.” Strangely, during the opening session of the hearings last Monday, the attorney who conducted the investigation for the Commission, Karen Saul, admitted that she could only interview those on the witness list provided by the Commission. Why wasn’t she allowed discretion to interview everyone she thought was relevant?

Other Charges

Another charge states, “Disregarding the importance of partisan neutrality, Judge Day inappropriately hung pictures of selected past presidents in his jury room.” Day denies doing this.

Two of the three judges sitting on the Commission have their positions and biographies posted on the Oregon Democratic Party’s website. Where is Judge Debra Vogt and Judge Patricia Sullivan’s partisan neutrality? Any first-year law school student can tell you the appearance of impropriety and ethical conflicts here is alarming, especially considering Judge Day is a former chairman of the Oregon State Republican Party. Those two panelists should recuse themselves from this hearing or they are likely violating judicial ethical rules. If Day is violating ethical rules, then they likely are too.

Two charges have to do with Day’s actions at his son’s soccer games. The first claims that Day invoked his judicial status when complaining to the referees at his son’s soccer game. Day says that he only produced his business card at the end of his discussion when the referee asked for identification.

The second claims that he falsely claimed to have been knocked down by a referee at another game. The commission had heard this story a couple of years ago and dismissed it as without merit. Now, it is being brought up again. Day insists the story he told is true. At the hearing last week, it came out that Day had likely been the victim, shoved down by someone else.

Day has already been falsely maligned in the press for one of many veterans’ displays he briefly placed on a courtroom wall, a World War II collage which included a small photo of Hitler — but clearly not in a favorable light. In fact, it was part of a display that was created precisely to honor those who sacrificed their lives to defeat Hitler. Also ignored is the fact that a companion display depicted the horrors of the Holocaust alongside the American liberation of the Nazi death camps. Day testified during the hearing that he wasn’t even the person who put up the display. And even more bizarrely, he was criticized during the hearing for displaying the predominantly WWII materials that had been donated, while not going out of his way to include materials from more recent wars.

Singled out as a Warning

It is pretty clear, as Day’s attorney has observed, that Day is being singled out and held up as an example to warn others not to object to same-sex marriages. Now, it would be one thing if he was still performing marriages for men and women only. But he isn’t even doing that anymore, and the commission still won’t leave him alone. As a former Oregon State Republican Party Chairman, he recognizes that 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.”

When I was practicing law, I appeared in front of numerous judges, where I regularly saw far worse behavior than the 13 petty accusations listed against Day. The threats, arrogance, bad language, overt prejudice and sloppiness of many judges is an all-too-common occurrence in courtrooms.

The left has long used the legal system to push through its agenda when it can’t get the people to pass it democratically. This disciplinary hearing is one of its first major efforts to force all judges to comply with their radical, progressive agenda on marriage, disregarding religious liberty which should protect the freedom of conscience to disagree with performing same-sex marriages.

Supporters of Judge Day are packing the courtroom wearing stickers that say, “I stand with Judge Day.” The outcry has been nationwide, and people in Oregon are getting sick of the bullying, which started with fining Christian bakers $135,000 for refusing to make a wedding cake for a same-sex wedding. These Judge Day supporters are tired of their state being made a laughingstock as it pushes through a militant progressive agenda and tramples on constitutional rights. But will the outcry have any effect on the judicial commission, which some fear is determined to destroy Day at any cost?