Oregon judge now under investigation for not performing same sex weddings

You will be made to care.

The currently incarcerated Kentucky clerk who won’t issue same sex wedding licenses has some company in the news this weekend. A judge in Oregon (who we’ve discussed here before) is drawing more than just media attention for not performing same sex – or any – wedding ceremonies. He’s now under investigation. (KGW News)

A Marion County judge has refused to perform same-sex marriages and has asked his clerks to refer couples seeking same-sex marriages to other county judges.

Judge Vance Day, a circuit court judge and former chairman of the Oregon Republican Party, is now facing an ethics investigation over that decision, according to the judge’s spokesman.

Spokesman Patrick Korten said Day instructed his staff to tell couples that the judge will not perform same-sex marriages. The staffers were instructed to refer same-sex couples to other Marion County judges willing to issue them a marriage license.

When this topic has come up in the past, one of the chief differences we noted between the Kim Davis situation and this one is that Judge Day and the rest of the judges in the state are not required to perform any wedding ceremonies. They are legally entitled to do so, but it’s an optional service they can perform above and beyond their normal duties on the bench. But this “ethics investigation” probably never could have taken place had he not made a point of telling his staff to forward the gay marriage requests to other judges. What’s left out of the local coverage above, though, is the timeline. The judge is no longer officiating any weddings at all, but an AP report seems to indicate that his decision was rolled out in stages. (Yahoo News)

When a federal court ruling in May 2014 made same-sex marriage legal in Oregon, Day instructed his staff to refer same-sex couples looking to marry to other judges, spokesman Patrick Korten said Friday.

Last fall, he decided to stop performing weddings altogether, aside from one in March that had long been scheduled, Korten said.

“He made a decision nearly a year ago to stop doing weddings altogether, and the principal factor that he weighed was the pressure that one would face to perform a same-sex wedding, which he had a conflict with his religious beliefs,” Korten said.

On one level, handling the matter this way has tossed Judge Day into the conscientious objector bucket… but only to a certain degree. There was apparently a period of time last year when Day was willing to perform traditional marriage ceremonies, but was turning away same sex couples. That sounds like a problem legally, but I’m not entirely sure that it is. Unlike the clerk who is charged with issuing licenses, the judge wasn’t cutting off anyone’s access to services. The state is full of judges, justices of the peace and any number of other folks who can do the job. Over in Clackamas County, for example, they helpfully provide a list of of all the folks who will marry you for a small fee, though they have some restrictions as well. (What’s up with Judge Zyranoff only performing weddings on Tuesdays? That’s got to be discriminating against somebody.)

The point here is that Vance Day could have avoided all of this and remained true to his beliefs by simply announcing last March that he would no longer be officiating at weddings. By choosing to make a public statement the way he did he has presented himself as a target of opportunity for the Social Justice Warriors and as such must be made to pay. I suppose an ethics investigation is the best they could muster up on short notice.

In closing, I would just note that this is yet another example of why the government shouldn’t be in the wedding business in the first place. Where does the government derive the power to pick and choose who can or can’t perform a wedding? What harm to society is threatened if an “unauthorized” person is chosen by two consenting adults to officiate their nuptials? And for that matter, where do they get off charging you $35 for a permission slip to have the service performed? All of this could have been avoided by striking the word “marriage” almost entirely from the tax code and the rest of our laws. (With exceptions for establishing minimum ages and settling competency for consent questions at the state level, of course.)

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