Vance D. Day, Judge, Circuit Court of Oregon, Third Judicial District v. Oregon Commission on Judicial Fitness and Disability

The Oregon Supreme Court, acting as a court of original jurisdiction, suspended Judge Day from his judicial office for three years without pay. Judge Day was found guilty of violating several judicial ethics rules, including manifesting bias toward same-sex couples by refusing to perform same-sex marriages while the court refused to consider his Free Exercise and Free Speech defenses to that charge. Likewise, the Oregon Supreme Court found Judge Day violated several other rules while it again refused to consider his Free Speech defenses to those alleged violations. Finally, Oregon Supreme Court found that Judge Day had violated these rules while improperly summarily rejecting his Procedural Due Process claims related to those charges. This case presents the following issues:

1. Whether it is a Due Process violation for a court of original jurisdiction to refuse to consider, or to reject without sufficient analysis, substantial constitutional defenses, while nevertheless finding the judge guilty of violating those ethical rules;

2. Whether the Oregon Supreme Court, and certain Oregon ethical rules, violated the Free Exercise and Free Speech clauses of the First Amendment when he declined, on the basis of his sincerely-held religious beliefs, to perform the non-mandatory judicial function of solemnizing same-sex marriages;

3. Whether certain Oregon ethical rules are unconstitutional under the Free Speech clause of the First Amendment for prohibiting protected speech and chilling protected speech by vagueness;