Persecution For the Fun of It

This piece originally appeared at The Washington Times Sunday, 26 March 2017 under the title "In Oregon, the left targets an evangelical GOP judge " and the byline Ralph Z. Hallow

Ralph Z HallowVance Day has come to think he stands for all the things America’s intolerant elites can’t stand. He may be right.

The Oregon circuit court judge served two terms as the state’s Republican Party chairman. That's strike one against him in the minds of those elites. Strikes two and three are that he has an evangelical religious bent that leads him to see homosexuality as sinful.

This is why the elites are trying to force him off the bench, he says. So far they have succeeded in putting him in hock for $650,000 in personal legal expenses. That debt will only soar as his case claws its way up the appeals cliff. Not incidentally, Oregon pays Judge Day and each of the state’s 172 other circuit court judges $124,468 a year.

Judge Vance Day

Vance Day probably was not on the mind of President Trump’s Supreme Court nominee, Neil Gorsuch, when Judge Gorsuch creatively — and appropriately — dodged Senate Democrats’ questions during the Judiciary Committee’s confirmation hearing last week.

Instead of divulging how he might rule on a certain issue once on the high court, Judge Gorsuch went on a mellifluous riff about how the court system works in a democracy.

It’s wonderful, he said, because anybody — rich or poor — can sue anybody else, and an impartial judge will hear the case.

True, but that glorious freedom and egalitarianism has its sometimes colossally damaging downside to a citizen forced to hire expert — and, therefore, expensive — counsel to defend against frivolous, politically motivated lawsuits.

So, yes, in a democracy, people have the right to freely exercise their bigotry and sue to besmirch other people's reputation and destroy their livelihood.

And so, yes, Judge Day's case now is headed to the Oregon Supreme Court, where he and his legal counsel face some heavy lifting given the deep blueness of both the state and of the members of its highest court. After that, the next stop will be the U.S. Supreme Court, which, by that time, may have on its bench a justice by the name of Gorsuch.

Judge Day says he harbors no ill will toward homosexuals and lesbians and in fact has befriended them. But his religious faith prohibits his personally performing a marriage ceremony for same-sex couples. He has no problems with other judges on his bench performing such ceremonies. He instructed court employees to refer same-sex marriage requests to his colleagues and not to him.

"Oregon authorizes but doesn't require its judges to preside over weddings," Judge Day said. "It's not part of the job."

Day friend Pat Korten, who served in the Reagan administration's Justice Department, said that when Democratic Gov. John Kitzhaber named Judge Day to the judiciary in 2011, "the state's liberal Democratic establishment reacted the way the human body's immune system reacts to an infection, not least because he had been Oregon GOP chairman for the prior four years."

That establishment, as represented by the state's judicial ethics commission, moved against Judge Day when it learned he had instructed his assistant to refer same-sex marriage requests to other judges, Mr. Korten said.

Apparently intent on making it seem something other than an issue of religion and marriage, the state's judicial ethics commission added other charges. One was that Judge Day hung in his jury room pictures of U.S. presidents, including — pause for dramatic effect — Republican ex-presidents. And until the chief judge of the circuit court asked him to remove it, there also hung a portrait of Adolph Hitler. It was, according to Judge Day, "part of a montage of pictures and symbols designed to pay homage to the sacrifices of World War II veterans in their country's war against the evils of national socialism and fascism."

The pictures were there because, said Judge Day, he and his son are part of a volunteer program to help U.S. military veterans who had gotten themselves in trouble with the law and badly need help in believing they can get over war trauma and be productive, successful citizens.

But the old saw about no good deed ever going unpunished won renewed and unwelcome appearance on the day the judge and his son were helping fix a stove in a cabin belonging to such a veteran — an ex-Navy SEAL Team Six member named Brian Shehan. Judge Day's son showed off his new, unloaded handgun to the veteran "as a gesture of friendship and admiration for the military hero."

On another day, Judge Day's son, unbeknownst to his father and unaware that Mr. Shehan's legal status barred him from handling firearms, spent an afternoon of target shooting with the ex-SEAL. The younger Mr. Day knew Mr. Shehan was in Judge Day's Veterans Treatment Court program, but the vets in that program were convicted of misdemeanors. Mr. Shehan was the only one in Judge Day's program who was a convicted felon (an automatic status for anyone who, like Mr. Shehan, had a third drunken driving conviction).

The judicial ethics commission gleefully added those alleged firearms violations to the list of charges leveled against the judge.

Judge Neil GorsuchBy the time the Day case reaches the U.S. Supreme Court, Judge Gorsuch, the proposed replacement for the late Justice Antonin Scalia, may well have joined the eight other justices. What the nine then decide about possible punishment for Judge Day's life of good deeds will, in his view, tell much about whether today's liberal elites will continue to control the commanding heights in the life of this country.

He may be right about that, too.

• Ralph Z. Hallow, chief political writer at The Washington Times, has covered Washington since 1982. He has served on the Chicago Tribune, Pittsburgh Post-Gazette, and Washington Times editorial boards; was Ford Foundation Fellow in Urban Journalism at Northwestern University; resident at Columbia University Editorial-Page Editors Seminar; and has filed from Berlin, Bonn, London, Paris, Geneva, Vienna, Amman, Beirut, Cairo, Damascus, Jerusalem, Tel Aviv, Belgrade, Bucharest, Panama and Guatemala.


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