The U.S. Supreme Court’s Masterpiece Cakeshop decision, along with recognizing a Colorado baker’s religious rights, showed the battles over issues related to same-sex marriage are far from over.
The decision was a setback for gay-rights activists seeking to trump the Constitution’s protections for religious rights.
Now the Supreme Court is being asked to review the case of a judge punished by a state commission for refusing to perform same-sex weddings in violation of his sincerely held religious beliefs.
The Oregon Supreme Court, which ruled against Judge Vance D. Day in the case, refused even to recognize that his defense is grounded in the First Amendment.
And the court’s opinion attacked him personally, slamming him as a “religious zealot.”
His petition to the high court asks where the required judicial neutrality was in his case. Where was the recognition of his constitutional rights? Wasn’t the Oregon action a violation of the Free Speech and Free Exercise protections in the Constitution?
Vance’s petition asks whether only one opinion regarding same-sex marriage now is allowed.
The Family Research Council, on its blog, called out Justice Ruth Bader Ginsburg for opposing religious bigotry against Muslims but accepting it when it’s against Christians. The column pointed out Ginsburg and Justice Sonia Sotomayor condemned “bigotry” in a case involving the president’s effort to limit entry to the United States from terror-fomenting regions.
But they weren’t prepared to give Masterpiece Cakeshop owner Jack Phillips the same rights.
“If they believe religious hostility can serve as a basis for relief, as they state in Trump v. Hawaii, they also have to be prepared for to provide that relief for Jack Phillips. Conversely, if a decision can still be valid despite evidence of religious bias (as they argued in Masterpiece), then they should have supported the president’s reasonable national security regulations in Trump v. Hawaii,” FRC said.
“The justices cannot ignore obvious religious bias when it is politically convenient, and turn around and use the same argument to attack other measures they don’t like,” the organization said.
It wasn’t the first time the integrity of Supreme Court justices has been challenged. During the run-up to the court’s 2015 creation of same-sex marriage, Ginsburg and Justice Elena Kagan both publicly performed same-sex weddings while the case was being decided.
WND also reported at the time that Ginsburg revealed her bias when she said it “would not take a large adjustment” for Americans “should the justices say gay marriage is constitutional.”
“How can Ginsburg possibly think that it’s proper judicial conduct for her to speak out on this issue while the marriage case is pending before the court?” wondered National Review columnist Ed Whelan at the time. “If she had any sense of her duty to maintain both the appearance and the reality of impartiality, she would recognize that she is now obligated to recuse herself from the case.
“But of course she won’t.”
Despite a formal court motion for her to recuse, she didn’t.
The Supreme Court even refused to comment on the request and refusal.
According to members of a legal team representing Day, his punishment was three years suspension, without pay, for “refusing” to perform same-sex weddings.
“The Petition for Certiorari centers on Oregon’s violation of Judge Day’s constitutional rights to Free Exercise of his religion, Free Speech, and Due Process,” the lawyers said.
“This appeal presents a profoundly troubling case where the Oregon Supreme Court found Judge Day, an elected state court judge, guilty of violating several judicial ethics rules, while refusing to consider, or improperly summarily disposing of, his substantial constitutional defenses to those same charges.”
They explained he was found guilty of bias against same-sex couple at a time when “same-sex marriage was banned by the Oregon State Constitution and the law was unsettled on a nationwide basis.”
Day explained that as a Christian, performing same-sex ceremonies violated his sincerely held religious beliefs.
“However, the Oregon Supreme Court refused to consider Judge Day’s Free Exercise of Religion defense to that charge,” the lawyers wrote.
“In so doing, Oregon exhibited hostility throughout the disciplinary process toward Judge Day’s religious beliefs, including calling him a ‘religious zealot’ intent on ‘fomenting disorder within the judicial system.’ This hostility violates the duty of government to be neutral and respectful of all religious beliefs as required by the U.S. Supreme Court in the recent Masterpiece Cakeshop decision,” they said.
“The Oregon Supreme Court was wrong in refusing to consider Judge Day’s substantial constitutional defenses, especially his Free Exercise right not to perform same-sex marriages when it violated his religious conscience,” said James Bopp Jr., lead counsel for Judge Day. “But its systematic refusal to consider, or to explain its reasoning in rejecting, all of Judge Day’s serious constitutional defenses was itself an egregious violation of Judge Day’s constitutional right to due process.”