Panel recommends removing judge who refused to perform same-sex marriages

SALEM, Ore. — A state judicial fitness panel has recommended the removal of a Marion County judge who came under scrutiny last year for refusing to perform same-sex marriages based on his religious beliefs.

The Commission on Judicial Fitness and Disability filed its recommendation to the state Supreme Court on Monday, accusing Marion County Judge Vance Day of discrimination based on sexual orientation and a myriad of other ethical violations.

“His misconduct is not isolated. It is frequent and extensive,” the commission wrote in its recommendation, which followed an investigation and a weeks-long disciplinary hearing that concluded late last year. “Judge Day’s pattern of behavior includes misconduct for personal gain and misconduct amounting to criminal behavior … His misconduct is of such a nature as to impugn his honesty and integrity.”

Patrick Korten, Day’s spokesman, said he wasn’t immediately able to provide a full response given the recommendation was filed late in the day, but he added that Day and his legal team were disappointed.

“The opinion is especially troubling because it disregards Judge Day’s First Amendment rights to freedom of religion, speech and association,” Korten said in a prepared statement. “He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court.”

The commission is accusing Day of “willfully” violating 10 rules of the Code of Judicial Conduct, from threatening a youth-sports referee to soliciting money from lawyers appearing before him to allowing a convicted felon to handle a gun.

But it was his refusal to perform same-sex marriages after it became legal in Oregon in May 2014 and nationwide a year later that drew the most attention.

The commission said that when a same-sex couple asked Day to perform their marriage, he told his staff to lie about his availability and direct them to another judge.

“Day asserts that this system of discrimination ‘accommodated’ same sex couples … the idea that a discriminatory practice is a positive ‘accommodation’ to those being discriminated against shows a deplorable lack of understanding of the most basic concepts of impartiality,” the commission wrote in its recommendation.

Despite the commission receiving dozens of complaints every year, one rarely results in a formal disciplinary proceeding. Day is now the sixth judge since 2007 to have been referred for sanctions to the Supreme Court, which will have the final say.

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