Judge Day Defends Himself|on 13 Ethics Charges

     SALEM, Ore. (CN) – Ethics hearing over, Oregon state Judge Vance Day awaits a judicial commission’s ruling on 13 charges against him, including refusing to officiate at same-sex marriages and hanging a portrait of Hitler in the courthouse.
     Day seemed considerably sobered Friday, two weeks after he strode into the basement hearing room at the state capital, smiling broadly at a packed gallery of supporters.
     The 13 charges against the Marion County Circuit Court judge include an allegedly inappropriate relationship with a former Navy SEAL who was a defendant in Day’s Veterans Treatment Court, and using his official position to intimidate a referee at his son’s soccer game.
     Testimony Friday to the Commission on Judicial Fitness and Disability turned to the issue of same-sex marriage, which Day said his religion prevents him from performing.
     Commission attorney Victoria Blatchley asked Marion County Commissioner Kevin Cameron about the position of the Morning Star Community Church on gay marriage.
     Day and his family attend the church, as does Cameron.
     “Does your church hold the position that same-sex marriage should be illegal?” Blatchley asked.
     “I don’t know the church’s position,” Cameron said. “I know what the Scripture says. But you’d have to ask our pastor directly what his stance is on that.”
     Commission Chairwoman Judge Debra Vogt had some follow-up questions for Cameron.
     “Are you telling the commission that you have been part of the Morning Star Church since 1989 and you don’t know the church’s position on same-sex marriage?”
     “I know what the Scripture says,” Cameron said.
     “Do you know the church’s position?” Vogt asked.
     “The church follows the Bible,” Cameron said.
     “Can you tell me what that means?” Vogt asked.
     “In the Bible, marriage is defined as one man and one woman,” Cameron said.
     “So that’s the position of the church?” Vogt asked.
     “Sure,” Cameron said.
     Blatchley played a clip of Day’s September interview with conservative radio host Lars Larson on the show “First Amendment Friday.”
     “I made a decision not to marry same-sex couples,” Day told Larson on the air. “I believe that judges do not give up their First Amendment rights when we go on the bench. I’m not against gay people, but please recognize my rights.”
     Expatiating on the ethics charges against him, Day told Larson: “This was a simple issue relating to a gun that my son brought over to a Navy SEAL’s home when I was trying to fix his furnace, that I self-reported. Then somebody said I would not do same-sex marriages and it spun out from there.
     “This is an attack against people who have faith in public services,” he said. “It’s a statement that people who have faith should not be in public office. And it’s really a frontal attack on judicial independence. We trust our judges not to just be rubber-stamp bureaucrats. We look at a case and ask ourselves, ‘Do I have bias?’ And if we do, then we recuse ourselves. I do that maybe once or twice a month.
     “I think this case really goes to how we are going to run our democratic republic. Are we going to toss judges out of court, off the bench, because they have a world view that includes religious beliefs?”
     Blatchley asked if Day thought the radio interview could have undermined public trust in the judiciary.
     “I don’t have any problem saying what is in my heart when it comes to the Constitution of the United States,” Day said in the Friday hearing. “There is nothing wrong with debate in our society. I have no problem being on a show and speaking my mind and speaking what I believe the Constitution is. And I think that helps the process.”
     Vogt said many of Day’s comments to the media seemed to be derogatory conclusions about the commission.
     “Do you think that promotes public confidence?” she asked.
     “My intention was never to make you, the commissioners, look bad,” Day said. “I am really frustrated with the way this came about. For a judge to defend himself before the commission, you have a choice to make. Am I going to spend hundreds of thousands of dollars to defend myself from something I think is inaccurate? It was really a place where I had to sit down and say, ‘OK. Am I going to resign or am I going to spend hundreds of thousands of dollars to defend myself?'”
     Blatchley asked Day about the screening system he set up with his assistant, Tina Brown.
     “Did you ever instruct Tina Brown to screen calls so you could avoid marrying same-sex couples?” Blatchley asked.
     “I instructed Ms. Brown not to schedule me to perform same-sex marriages and to find another judge who would do so and I did that because it conflicted with my deeply held religious beliefs,” Day said.
     “As a sitting judge, did you feel comfortable instructing Tina Brown to discriminate against same-sex couples?” Blatchley asked.
     “I never felt that I was discriminating against anybody, so I’m not sure how to answer that question,” Day said.
     “In your media contact, why did you only talk about the same-sex issue?” Blatchley asked.
     “I think those were the questions that were asked,” Day said. “And looking at the complaint from my viewpoint, it seems constitutionally the most important from the standpoint of a public dialogue.”
     “But the state is not compelling you to marry same-sex couples, right?” Blatchley asked.
     “No, not presently,” Day said.
     “So if you don’t know whether the litigants in front of you are LGBT, do you disclose this deeply held religious belief that could be perceived as a bias?” Blatchley asked.
     “Before the commission publicly charged me with this, I don’t think anybody had an inkling that I would discriminate against somebody from the outside or say that I had a bias,” Day said.
     Day said part of the reason he asked Brown to screen same-sex couples was concern for their feelings.
     “I certainly wouldn’t want to embarrass anybody,” he said.
     Day’s attorney, Ralph Spooner, asked the question more bluntly.
     “Have you ever discriminated against anyone because of their sexual orientation?” Spooner asked.
     “I have not,” Day said.
     After the last witness was dismissed, Spooner complained that the commission process did not allow for due process rights, such as making motions to dismiss after the parties had presented all evidence.
     Blatchley countered that the commission had the discretion to dismiss the ethics charges at any time.
     Vogt said the process was intended to be looser than traditional civil proceedings, to allow the commission to respond if new allegations came to light.
     “We need to be able to scrap the whole thing and start again if we realize there are new charges,” Vogt said.
     Spooner and Blatchley have three weeks to submit their closing arguments. The commission will then take several days to deliberate before deciding on a recommendation, either to dismiss the charges or to sanction Day.
     The recommendation will go to the Oregon Supreme Court, which almost always approves recommendations from the commission.

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