Lambda Legal filed a friend-of-the-court brief Tuesday with the Oregon Supreme Court arguing that it was unlawful for Judge Vance D. Day to devise a scheme to avoid marrying same-sex couples. Judge Day directed court staff to use the court record system to investigate whether couples wishing to marry were of the same sex and, if so, to represent that he was unavailable, rather than unwilling, to marry them.
“A judge puts on a robe—not a clerical collar—and has a duty to administer the law impartially,” said Peter Renn, Senior Attorney for Lambda Legal. “No public servant, whether a judge or county clerk, has the right to ‘screen out’ same-sex couples seeking to marry from access to government services on the basis of personal religious beliefs. Everyone who comes before a judge is entitled to receive fair and impartial treatment.”
“As public servants, judges are required to serve all people, including same-sex couples, without bias or prejudice. When they break that promise, the public loses trust in the courts,” said Eric Lesh, Director of Lambda Legal’s Fair Courts Project. “LGBT people and other marginalized communities depend on the courts for justice when they encounter discrimination. But how can they believe they’ll get a fair shake when judges go rogue and themselves engage in discrimination—and defend their right to do so?”
The case arises from proceedings before Oregon’s Commission on Judicial Fitness and Disability, which investigated Judge Day and unanimously recommended that he be removed from the bench based on a variety of alleged misconduct. To date, all disciplinary tribunals to have considered the issue have found that a judge’s refusal to perform marriages for same-sex couples on equal terms as for different-sex couples violates judicial conduct rules, including those prohibiting bias or prejudice. Although judges are not required to perform marriages, they must refrain from bias or prejudice when they choose to do so.
Lambda Legal’s Fair Courts Project works to preserve judicial independence and improve access to justice for all people. The success of Lambda Legal’s work in the courts depends on the assurance that LGBT individuals and everyone living with HIV will receive fair and impartial treatment.
The brief can be found here: lambdalegal.org/in-court/legal-docs/day_or_20170502_amicus-brief.
The brief was filed by Lambda Legal Senior Attorney Peter Renn, Fair Courts Project Director Eric D. Lesh, Fair Courts Project Attorney Ethan D. Rice, and Senior Legal Help Desk Attorney Stefan C. Johnson.