Let’s pause a moment to savor and celebrate that on Monday morning Kim Davis will be back at work in Rowan County, Ky. She not only survived, she has triumphed, thanks to a special extralegal conscience protection fashioned specifically for her by Judge David Bunning.
Let’s savor it a moment and then ask:
Judge Day is an Oregon county judge who has refused to perform same-sex weddings after they became legal in Oregon in 2014, referring such requests to other Marion County officials willing to perform the ceremonies.
According to Oregon media, Judge Day learned on June 23 that Oregon’s judicial-ethics commission was investigating not only that complaint but a dozen others that suddenly materialized against him, ranging from a dispute over a soccer field to the allegation that he hung a picture of Hitler in the courthouse. The latter is true, sort of: The painting, he says, was a spoil of war from World War II, from a vet who helped fight the good fight against Hitler, and is overlaid with photos of other veterans who helped defeat Hitler. (See the display here.)
We don’t control the media narrative, as Judge Day’s case makes abundantly clear. The mere mention of the allegation has provoked media headlines strongly implying that Judge Day is a Nazi sympathizer, e.g. “Oregon Judge Hung Hitler Portrait in Courthouse, Bullied Vets,” as the New York Daily News put it.
Even a Jewish gay activist, Jay Michaelson, writing in the Daily Beast, recognizes what is going on here: “Surely the commission acted in bad faith. They had to know the headlines that would result from its accusation of Judge Day ‘hanging a picture of Hitler in the Marion County Courthouse.’ After all, what did you picture when you read the first line of this story? This allegation makes Judge Day into the victim of a progressive-led hit job.”
The question in Judge Day’s case is clear: Are we going to treat a refusal to perform gay weddings as a legitimate public position?
And this is not the first time the judicial system has suggested that judges may not decline, without incurring legal penalties, to officiate gay weddings. An Arizona state judicial-ethics advisory committee warned judges that refusing to perform gay weddings probably violated state ethics codes. In July the Nebraska judicial-ethics committee ruled that judges cannot refuse to perform gay weddings (although they may refuse to perform any weddings). In 2013, a Washington state judicial-ethics committee formally rebuked a state judge for refusing to perform gay weddings, and as the price of retaining his job, he stipulated his agreement to the idea that he had committed an ethics violation when he told his staff in chambers that for religious reasons he would not perform gay weddings. The case is particularly troubling because it was his private request to make referrals of such cases to other colleagues that triggered the media firestorm. This is more or less the equivalent of using a request for a religious accommodation to trigger an investigation, something that actually happened to a Salt Lake City cop, according to his account.
Kim Davis kept her conscience clean and she kept her job. Gay couples are getting the licenses to which they are entitled by the courts. This is what victory looks like, feels like, tastes like.Nobody is entitled to have a particular judge perform his or her marriage. So the question in Judge Day’s case is clearer: Are we going to treat a refusal to perform gay weddings as a legitimate public position? Or are we going to redefine it as racist hatred and bigotry unbefitting a judge?
Judge Vance Day is the next Kim Davis in the sense that he is being asked by the complainants to violate his conscience and perform gay weddings or face sanctions that would threaten his job and livelihood.
Let’s hope he is the next Kim Davis in another sense too: that we emerge from this case with another victory for liberty, common sense, and, yes, compassion and tolerance.
May he keep his conscience and his job.
— Maggie Gallagher is a senior fellow at the American Principles Project. She blogs at MaggieGallagher.com.