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Monday, May 27, 2024 | Back issues
Courthouse News Service Courthouse News Service

Hearing for Judge Who Hung Hitler Portrait

SALEM, Ore. (CN) - Oregon Judge Vance Day, accused of refusing to officiate at same-sex marriages and displaying a portrait of Adolf Hitler in his courtroom, strode into Hearing Room 50 at the State Capitol on Monday and greeted his supporters with a big smile.

The Commission on Judicial Fitness and Disability also accused Day of soliciting and collecting money from attorneys, letting a former Navy SEAL who was a convicted felon handle a handgun, calling veterans in his court "raggedy asses," and using his stature as a judge to try to strong-arm a referee at his son's soccer game.

In an answer to the allegations, Day acknowledged that he had an assistant screen applicants for marriage ceremonies, but said that did not violate any ethical rules on judicial conduct because it is within his constitutional right to refuse to perform the ceremony. Day says his Christian beliefs prohibit him from marrying gay and lesbian couples.

Day sits on the Marion County Circuit Court in Salem, the state capital.

He claimed in his answer that he did not know that the Navy SEAL was a felon, though the man was a defendant in Day's court, in whom Day took personal interest, and hired to do odd jobs.

In opening statements Monday, Day's lawyer, Ralph Spooner, and commission lawyer Victoria Blatchley laid out the roadmap for the two-week hearing.

In a basement room in the State Capitol building, Spooner dismissed the allegations as courthouse rumors spread by people who disagreed with Day's politics.

Spooner said the commission began an investigation into the incident with the gun, which Day had self-reported, then caught wind of his alleged anti-gay bias. From there, the allegations multiplied in what Day called a "shotgun approach."

Spooner called Day an innocent champion of veterans' rights, who did not use his religious beliefs as a reason to discriminate. He said, for example, that Day had been a good friend to openly lesbian Marion County Circuit Court Judge Susan Tripp.

Spooner said Day had asked his judicial assistant to funnel gay couples to other judges because he wanted to make sure they had a good wedding day.

"Judge Day loves his brothers and sisters in the gay and lesbian community," Spooner said. "He respects their right to marry. He will also tell you that he has deeply held religious beliefs that prevent him from marrying same-sex couples. He believes that marriage is between a man and a woman, but that doesn't mean we discriminate against gays and lesbians."

Spooner said that Day tried to make sure that same-sex couples were able to be married by other judges.

"He said, 'I want you to take steps to make sure they're accommodated,'" Spooner said. "'You can find out ahead of time; it's even easier. If you can find out using their names that they're same sex, refer them to the clerk's office.' He didn't tell them to discriminate against anyone in the same-sex community. There's no victim here. There's no one who said, 'I want Judge Day to marry me and I'm hurt that he won't do that.'"

Spooner called Day's choice an ethical decision.


"Our evidence will show that judges' beliefs are accommodated all the time. Judges are required under state law to recuse themselves," Spooner said. "The classic issue is the death penalty. There are those that have firmly held religious beliefs against the death penalty. The law is on their side. It requires them to recuse themselves. Just as if their best friend appears in court and they have knowledge of the events, the judge is required to recuse themselves. That is the ethical thing to do.

"So Judge Day did the ethical thing. He didn't create this storm of controversy about same-sex marriage. He simply told his staff, who then told others. And then the commission decided, we'll make you our guinea pig in our test case to determine whether this violates any judicial cannon."

Spooner said the furor over the picture of Hitler had been blown out of proportion.

Every Friday, Day runs the Marion County Veterans Treatment Court, a collaborative court in which Day and a team of psychologists and caseworkers work with veteran defendants in a less formal setting than a normal courtroom and connect them with social services.

Spooner said Day hung a series of framed photos and other war memorabilia on the fourth floor, where his courtroom and chambers are, to make the veterans feel comfortable and to highlight people who had suffered while serving in a war, but still came home and found success.

Day called it the "Heroes Hall."

Blatchley showed a video documenting the walls on the fourth floor. Several dozen framed displays held photos, newspaper clippings, military uniforms and medals.

Spooner said the image of Hitler was part of a display celebrating the life of Dr. Ken Vollmer, a military surgeon during World War II. At the end of the war, Vollmer used his knife to slice the oil painting of Hitler out of its frame.

"Vollmer defaced the painting of Hitler," Spooner said. "That was a big thing for a guy who fought against the Third Reich."

Spooner said the display also held Vollmer's medals, awards and pictures.

There are three other courtrooms on the fourth floor of the Marion County Courthouse.

Judge Tripp testified that she asked Day to remove the displays out of concern that they might rub some people the wrong way.

"I talked to him about the fact that I thought he should take them down," Tripp said. "I thought they would make people who were not comfortable with war or the depiction of war uncomfortable. It's important for people to feel like they have a level playing field when they come into court. I talked to him about the fact that my spouse's family doesn't believe in war. They're Mennonite. My partner's father is a conscientious objector, and I thought he would not be comfortable with this."

Day refused to remove the displays, so Tripp put up some art of her own, launching what another judge called the "hall wars."

Tripp said she hung a framed photo of a march on Washington for gay rights, and a display explaining the historical significance of the pink triangle, which was the symbol the Nazis used on armbands to identify gays and lesbians and send them to concentration camps, as yellow stars of David were used to identify Jews.

"He wanted to display all this stuff about World War II, and I wanted him to understand how people have different perspectives on the war," Tripp said.

Nonetheless, Spooner said, Day had come through for Tripp when she had cancer and was struggling through chemo. One hot day he came over and installed an air-conditioner in her room. Tripp confirmed the story.

But Blatchley said Day's actions had harmed the public's confidence in him as a neutral magistrate.

"Let us remember the key words of the code of judicial conduct: integrity, public confidence, indeed, acting at all times in a manner that promotes high levels of public confidence and doing so fairly, impartially and without bias," Blatchley said.

"Judges must refrain from soliciting funds or accepting gifts. Judicial code can be distilled down to one powerful word: integrity. Judge Day will claim that we can't know what's in his mind, but the commission will have to determine whether his actions live up to the code of conduct."

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