Judge Vance Day is accused of being an anti-gay zealot and of hanging a photo of Hitler in his courthouse. But he may actually be right.
In Oregon, where Judge Day serves as a county circuit court judge, same-sex marriage has been legal since May 2014. At that time, according to a statement filed yesterday by Oregon’s Commission on Judicial Fitness and Disability, Judge Day began “screening, or having his staff screen, wedding applicants to ensure that they were not same-sex applicants, which he refused to marry before he discontinued presiding over weddings.”
That action raised the ire of the ACLU and other organizations fighting nationally against public officials refusing to recognize same-sex marriage—including, most famously, Kim Davis, the Kentucky clerk who has become the poster child for the movement. A spokesman for the ACLU said that Judge Day’s screening of same-sex couples, while legal, raised questions about his impartiality. “It starts to look like state-sanctioned discrimination,” he told local press in Oregon.
Day’s opt-out also attracted the attention of the conservative “religious liberty” crowd, including the Becket Fund for Religious Liberty, best known as the attorneys for Hobby Lobby. Judge Day’s spokesman, Patrick Korten, is a former communications director for The Becket Fund and the Knights of Columbus. (The Knights have been among the leading funders of the anti-gay and “religious liberty” movements, contributing $15.8 million to anti-marriage equality causes.) From their perspective, this county judge is just an ordinary citizen, expressing his First Amendment rights. (Korten did not respond to The Daily Beast’s request for comment.)
Finally, according to Korten, Judge Day’s actions triggered an investigation by the Oregon commission, which now alleges a whole litany of misdeeds, including the Hitler photo, soliciting money from lawyers for a veterans’ display in the courthouse, letting a convicted felon (and veteran) handle a firearm in the courthouse, and more.
Judge Day himself told the Associated Press that “It appears that the commission has thrown everything in but the kitchen sink. The clear issue that they’re after me on is that I had stopped doing weddings because I have a firmly held religious conviction.”
On the surface, Judge Day is not as sympathetic as Kim Davis. Where Davis is a cuddly believing Christian who cried as she was released from jail, Day is a weird judge with a Hitler fetish and a host of ethical challenges. No wonder Mike Huckabee’s nowhere to be found.
But actually, it’s Day who is within the law, and Davis who is beyond it. In fact, as someone who has obsessed over the religious exemptions movement before anyone had heard of it, and as a happily married gay man, I suggest that, in this case, the Left has gone off the rails.
First, it is indeed a striking coincidence that Judge Day’s miscellaneous ethical lapses are suddenly of interest to the Oregon Commission on Judicial Fitness and Disability. The commission’s complaint (PDF) even includes allegations that Judge Day was a bad soccer dad, for heaven’s sake (Day said the other guy pushed first) and improperly raised money for a veterans’ display. It’s hard not to agree with Judge Day that this is a politically motivated hit.
What about that Hitler photo? According to Korten, it was part of a World War II display. “We went to war against Hitler,” Korten told Reuters. “His picture was there. It was not admiringly. It was him as the epitome of the enemy that we went to fight against.”
A photograph of the display has now surfaced, and appears to bear out this story. While Hitler’s image is unusually large, it is surrounded by American veterans’ memorabilia. It is in bad aesthetic taste, perhaps, but is hardly a shrine to Hitler.
Surely the commission acted in bad faith. They had to know the headlines that would result from its accusation of Judge Day “hanging a picture of Hitler in the Marion County Courthouse.” After all, what did you picture when you read the first line of this story? This allegation makes Judge Day into the victim of a progressive-led hit job.
Finally, what Judge Day has done—withdraw from performing all weddings—is probably legal, and definitely more defensible than what Kim Davis has done.
True, his initial screening of wedding applicants may give rise to a perception of impartiality, and may even constitute discrimination. But Judge Day phased out this practice, and withdrew completely from the wedding business—as have at least 16 other Oregon judges.
That is perfectly legal. In Oregon, judges may, but are not required to, perform weddings. They may withdraw simply as a preference, or because they’re too busy, or for any reason at all. That Judge Day has a religious reason to perform a secular task may or may not be legitimate—but he doesn’t need any reason at all. As long as he’s not discriminating, he can just say no.
Which he’s done.
That’s why Judge Day’s conduct is so different Kim Davis’s—and why Davis’s is so much worse.
First, Davis has a job which requires her to register marriages. Judge Day does not. Kim Davis is shirking her duty; Judge Day is not.
Second, Davis’s is a secular job, not a religious one. Her claims of religious exemption are outrageous, because what she is doing has no religious relevance. Couples she registers aren’t looking for her religious approval; they’re looking for her rubber stamp as an agent of the state.
Judge Day’s job is secular too, but a lot closer to something religiously objectionable. Surely there is a distinction between performing a wedding on the one hand, and registering a marriage on the other. Judge Day, unlike Clerk Davis, really is causing two people to be wedded together, and making a choice to do so. While choosing to perform a wedding is still a discharge of his secular role, it is far more active—and thus, far more religiously cognizable—than Davis’s.
This is not to say that Judge Day is right, exactly—only that he’s a lot closer to right than Davis, and other crusading anti-gay public officials like Texas AG Ken Paxton, now the subject of a much more substantial ethics probe of his own.
The ACLU and others are arguing that that withdrawal, even though it is universal, may compromise Judge Day’s impartiality. But that is unfair. If Judge Day had withdrawn and kept his mouth shut, no such inference could be made. But because he has withdrawn and told the truth about the reason, now suddenly he is suspect.
What’s really unfair, though, is going after Judge Day for being a Hitler-loving, soccer-dad-beating hooligan because of his stance on same-sex marriage. To be clear, I think Judge Day is wrong ethically and religiously. But that is none of my business. He is within the law (probably) and so the right remedy is to change the law, not cook up a dozen pretexts to sanction him or remove him from office. A hit job is a hit job, whether it comes from right or left.
Day and Davis are outliers. Every month, more Americans—and more religious Americans—support marriage equality. They see that the sky has not fallen since June 26, they get that some people are gay, and they’re over it.
Progressives don’t need dirty tricks to win this battle. In fact, it’s probably the only way we can lose it.