A government commission has recommended that a civil servant be removed from his post because of his thoughts. A scene from George Orwell’s 1984 or the dystopian novel Kallocain? Alas, no. Welcome to present-day Oregon.

On January 25, 2016, Oregon’s Commission on Judicial Fitness and Disability recommended that Judge Vance Day be removed as a Marion County judge for, among other things, declining to officiate same-sex weddings. Central to the opinion is the Commission’s finding that Judge Day is “a Christian whose firmly held religious beliefs include defining marriage as only between a woman and a man.” (The Commission found that Judge Day violated eight counts of the Oregon Code of Judicial Conduct; this article considers only one of them, although there are serious questions about the others.)

In Oregon, as in most states, “performing marriages is not a mandatory judicial duty.” Judges may solemnize weddings, but they are not required to do so. Judge Day opted to participate in marriage ceremonies upon occasion after he was appointed to the bench in August 2011.

On May 19, 2014, a federal judge overturned Oregon’s ban on same-sex marriage. Because of his sincerely held religious objections to same-sex marriage, Judge Day instructed his staff to inform same-sex couples that he was unavailable to solemnize their marriages. In November 2014, he removed himself from the Marion County list of wedding officiants.

The Commission concedes that Judge Day’s plan to be “unavailable” for same-sex wedding ceremonies was not implemented. He never actually refused to officiate a wedding ceremony because of a couple’s sexual orientation.

Even quasi-judicial proceedings usually require that there be a real case and controversy. Advisory opinions are not permitted. Yet the lack of an actual case did not keep the Commission from reaching a conclusion in this matter, one that seems to turn on its findings about Judge Vance’s religious beliefs. The Commission’s opinion violates basic canons of due process, and it impermissibly creates a religious test for office.

The United States Constitution prohibits religious tests for federal offices, and in Torcaso v. Watkins (1961), the U.S. Supreme Court declared the few remaining religious tests for state offices to be unconstitutional. But Oregon did not need to wait for the Supreme Court’s decision. Indeed, its 1857 constitution goes beyond its federal counterpart by stipulating (in Article I, sections 3, 4, and 6) that

  • “No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience”;
  • “No religious test shall be required as a qualification for any office of trust or profit”; and
  • “No person shall be rendered incompetent as a witness, or juror in consequence of his opinions on matters of religeon [sic]; nor be questioned in any Court of Justice touching his religeous [sic] belief to affect the weight of his testimony.”

Judge Day’s religious convictions may be unpopular, but as Justice Kennedy averred in Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide, they are constitutionally protected:

It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Judge Day has a right to his convictions regarding same-sex marriage, and the Oregon Commission on Judicial Fitness and Disability cannot create a religious test for office that excludes persons of faith who hold such views.

This is not to say that Judge Day may discriminate on the basis of sexual orientation when conducting his judicial duties. But there is no reason to believe that he did, and there are good reasons in the record to believe he did not.

Judge Day’s case would have been more difficult if Oregon required judges to solemnize weddings, and if he had, in fact, refused to do so for same-sex couples. My next post will explore this sort of conflict. But this is an easy case. We live in the United States of America, not Oceania or Worldstate. Civil servants should not lose their jobs for committing thought crimes.