DaytonDailyNews.com

Montgomery County Common Pleas Judge Mary Wiseman, who is openly gay, should excuse herself from cases involving the state constitutional ban on gay marriage and Dayton's new law banning discrimination against gays, her Democratic primary opponent says.

Montgomery County Area Court Judge James D. Piergies cited Wiseman's role in writing an earlier, failed version of the anti-discrimination law when she was a Dayton city commissioner in 1999. He said it would create an ethical problem as well if she were to consider cases involving the Ohio constitutional amendment that passed in 2004.

Wiseman, who was appointed by Gov. Ted Strickland to replace retiring Judge John Kessler, said the fact that she is Ohio's first openly gay judge should be encouraging to other gay people. But she said it will play no role in how she considers cases, including those involving gay rights, because judges must be impartial in applying the law.

Wiseman took issue with Piergies' remarks, which were made during an editorial board meeting at the Dayton Daily News.

"If that were the rule, then Thurgood Marshall would never have presided over a civil rights case," Wiseman said.

Piergies said the situation was different for former U.S. Supreme Court Justice Marshall, who more than a decade prior to being named to the court, argued the civil rights case Brown v. Board of Education. But after acknowledging Marshall's support of civil rights prior to joining the court, Piergies then said perhaps Marshall should have recused himself from such cases.

Asked to elaborate later, Piergies said he hadn't really given the issue a lot of thought prior to answering.

But he said because Wiseman has openly supported gay rights, it would be a violation of the judicial canon of ethics for her to take cases involving those rights.

"I must take strong exception to someone saying that because I'm gay that I shouldn't preside over cases that involve gay or lesbian issues," Wiseman said.

During the first interview Piergies said that is what he was saying, but in a later interview he reversed himself and said it was not what he was saying.

"It's the fact that she has an opinion on the issue that she's expressed and that she's well known," Piergies said. "What I'm saying is if you have a specific issue that violates the canon of ethics, then you should step aside."