The Oregon Supreme Court recently held that a judge committed willful misconduct by having his staff screen marriage requests to ensure that he did not perform ceremonies for same-sex couples.  Inquiry Concerning Day, Opinion (Oregon Supreme Court March 15, 2018).

After a federal district court invalidated the state’s constitutional ban on same-sex marriage in May 2014, the judge told his judicial assistant and his clerk to “discreet[ly]” try to determine whether a request to perform a marriage was from a same-sex couple by checking for gender information in the judicial case information network, which they had not done prior to the federal decision.  If the request was from a same-sex couple, he instructed, they should tell the couple that he was not available on the requested date or notify him so that he could decide how to proceed.  The judge’s judicial assistant determined that a requesting couple might be a same-sex couple 1 time, but the judge had an actual scheduling conflict, and she truthfully told the couple that he was not available.  Several weeks later, the judge stopped solemnizing all marriages.  His judicial assistant and others testified that they never had seen or known the judge to discriminate against or speak in a derogatory way about the LGBT community.

Rule 3.3(B) of the Oregon code of judicial conduct provides that:  “A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or others based on attributes including but not limited to, sex, gender identity, race, national origin, ethnicity, religion, sexual orientation, marital status, disability, age, socioeconomic status, or political affiliation and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”  (Rule 3.3(B) is similar but not identical to Rule 2.3(B) of the American Bar Association Model Code of Judicial Conduct.)  Rejecting arguments by the judge and amici curiae, the Court held that solemnizing marriages is a judicial duty, noting that, although judges are not required to perform marriages, “it is by virtue of holding judicial office that a judge is statutorily authorized to do so.”

The Court noted that Webster’s Third New International Dictionary defines “manifest” “in part, as ‘to show plainly:  make palpably evident or certain by showing or displaying.’”  That definition, it concluded, means that a judge’s conduct must be “obvious to others” to constitute a violation of Rule 3.3(B).  The Court noted that the public was not aware of the judge’s screening process, but it stated that he “indisputably communicated to his staff his intention to treat same-sex couples” differently than opposite-sex couples and “directed his staff to participate in that different treatment.”  Therefore, it concluded, his instructions manifested prejudice within the meaning of Rule 3.3(B).

Rejecting the judge’s argument, the Court concluded that it was irrelevant that no same-sex couple was refused the opportunity to marry as a result of his actions.  It acknowledged that most manifestations of bias “involve a judge’s overt and prejudicial treatment of a particular person involved in a proceeding before the court—such as a litigant, juror, witness, or lawyer.”  However, emphasizing that the “fundamental objective” of Rule 3.3(B) was “ensuring the public’s trust in an impartial and fair judiciary,” the Court concluded that the “rule is not limited to a manifestation of prejudice against an identified, particular person” but also includes “an expression of bias against an identifiable group, based on personal characteristics, in the performance of judicial duties.”

The judge argued that he had not intended to discriminate against same-sex couples but was only “trying to maintain the tenets of his faith.”  That Court stated that, regardless of his intent, the judge’s instructions to his staff were “an intentional action” that subjected same-sex couples to discriminatory treatment.  The Court also noted that the judge’s direction that his staff be “discreet” “reflected an understanding” that his conduct may have violated the code.

However, the Court did not sanction the judge for adopting the screening process, despite what some headlines stated or suggested.  See, e.g., Law360.com, “Ore. Judge Suspended For ‘Screen’ Of Gay Marriage Couples;” and OregonLive.com, “Judge Vance Day — who wouldn’t marry same-sex couples — suspended for 3 years.”  In the disciplinary proceedings, the judge argued that sanctioning his actions regarding same-sex marriage request would violate his constitutional rights.  The Court sidestepped those “important and complex issues” by concluding that, even if it rejected the judge’s constitutional challenge, the sanction it was already imposing for the judge’s other “notably serious misconduct” would not change.  Thus, without consideration of the same-sex marriage issue, the Court suspended the judge for 3 months without pay for (1) having out-of-court contacts with a probationer in the veterans treatment court over which he presided; permitting the probationer to twice handle a gun despite the firearms prohibition that was a condition of his probation; and making a false statement to the presiding judge about the gun-handling incidents; and (2) making a false statement to the Commission on Judicial Fitness and Disability during its investigation of the judge’s conduct at a soccer game.