THE EQUALITY NINE:
Marriage Equality Activists Go on Trial March 28
interview by MARK GABRISH CONLAN
Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
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PHOTOS, top to bottom:
Sean Bohac and Cecile Veillard
August 19, 2010: S.A.M.E. members sit in at the County Clerk’s office, while sheriff’s deputies bar them from entering. Sean Bohac is center left (seated, with bag); Cecile Veillard (with ponytail, back to camera) and Zakiya Khabir are at the right. (Photo: Courtesy San Diego Alliance for Marriage Equality.)
February 7, 2012: L to R: José Medina (with sign), Lisa Kove (filming), Thomas, Zakiya Khabir (speaking) and Sean Bohac (behind canopy support) at the celebration of the Ninth Circuit ruling against Proposition 8.
Despite the high drama associated with the term “civil disobedience,” it’s actually pretty rare these days for anyone who’s arrested at a demonstration actually to be prosecuted and put on trial. But that’s what’s happening Wednesday, March 28 to at least some of the “Equality Nine” — Michael Anderson, Brian Baumgartner, Sean Bohac, Felicity Bradley, Kelsey Hoffman, Mike Kennedy, Zakiya Khabir, Chuck Stemke and Cecile Veillard — members of the San Diego Alliance for Marriage Equality (S.A.M.E.) who were arrested August 19, 2010 at the San Diego County Administration Center just after Vaughn Walker issued his ruling in the Proposition 8 trial and became the first judge to declare California’s voter-approved ban on same-sex marriage to be a violation of the U.S. Constitution.
Zenger’s interviewed three of the Nine — Sean Bohac, Zakiya Khabir and Cecile Veillard — on February 18. They were reluctant to discuss the specifics of what happened the day they were arrested (their attorneys had warned them the prosecution could use whatever they told the media against them) but were quite eloquent about the sheer length of time both their case and the overall Proposition 8 litigation is taking, the absurdity of the arguments used to deny same-sex couples an equal right to marry, the city’s insistence on spending a lot of money to prosecute them when both the office of city attorney Jan Goldsmith and the San Diego County Superior Court system which will try them are facing massive budget cuts, and the possible precedent their treatment will set for the way the city treats the people who’ve been arrested in the Occupy San Diego protests.
S.A.M.E. and the Equality Nine want people to write to City Attorney Goldsmith, 1200 Third Ave ., Suite 1620. San Diego, CA 92101, phone him at (619) 236-6220 or e-mail firstname.lastname@example.org
to urge him to drop all charges against the Equality Nine before the case goes to trial. They’re also asking people to write letters to the editor of all San Diego’s newspapers urging them to cover the trial, and to come to the trial site — 220 West Broadway downtown — for a rally from 8 to 9 a.m. March 28 before the trial begins, and to attend the trial itself, tentatively set for “District” (courtroom) 51. [Full disclosure: the interviewer is a member of S.A.M.E. and was recently elected to the organization’s five-member steering committee. He is also a legally married Gay man; he and his husband Charles tied the knot in the 4 ½ months between the legal recognition of marriage equality by the California Supreme Court in May 2008, which became effective that June, and the passage of Proposition 8 that November.]
Zenger’s: Just who and what are the Equality Nine?
Cecile Veillard: The nine of us who were arrested on August 19, 2010, which was the day that Judge Vaughn Walker had designated as the first day that a temporary stay [delay] on his decision that Proposition 8 was unconstitutional would be lifted, so that same-sex couples could again begin to apply for marriage licenses in California. Several same-sex couples [including Equality Nine members Michael Anderson and Brian Baumgardner] actually had appointments to be married in San Diego County that morning. They hadn’t been notified that their appointments would not be honored.
We went in to support their right to marry, and because of the new stay that had been imposed by the Ninth Circuit while they were going to hear the appeal by the National Organization for Marriage of Judge Walker’s decision, we didn’t expect that those appointments would be honored. But we also didn’t expect to be arrested by 9 o’clock that morning by 50 sheriff’s deputies in full riot gear. There were a lot more than nine people in the clerk’s office that morning, but it was the nine of us who were sitting by the doors of the clerk’s office who were arrested.
Zenger’s: Why do you think you were singled out?
Zakiya Khabir: I think what happened was not a matter of who was in the hallway, but more that there were people who were trying to get licenses, and we were sitting down in the hallway.
Veillard: What the prosecution is essentially arguing is that we were preventing “equal access,” which is the most ironic of terms. The charge is we prevented “equal access” to opposite-sex couples from entering the clerk’s office, and that’s factually not true.
Zenger’s: So the upshot is you guys were arrested, and what’s happened since? Isn’t it somewhat unusual for a case of this sort to go all the way to a jury trial?
Khabir: From what our lawyers tell us, this would be the first time that someone was prosecuted under this particular statute [Penal Code section 602.1 (b)] in California. There’s no previous case law on it. Usually, when the charges are dropped, because presumably they can’t stick. Because the way it’s written, from what our lawyers say, is kind of awkward and weird, and it has this First Amendment clause built into it. [Section 602.1 (c): “Section (b) shall not apply to any person on the premises who is engaging in activities protected by the California Constitution or the Constitution of the United States.”] So in the course of a demonstration, it shouldn’t apply.
Zenger’s: What were you hoping to accomplish by the action, and what are you hoping will be the result of this going to trial?
Sean Bohac: We actually hoped we could get the county clerk to issue same-sex marriage licenses. There was a couple who was cooperating with our organizing, who had written a letter indicating that the county clerk should follow the will of the governor and the attorney general, who are chain-of-command the bosses of the county clerk. [The couple were Tony and Tyler Dylan-Hyde; Tyler, an attorney, had written a legal memo to that effect.] We hoped that the county would do what’s right and issue the marriage licenses to Tony and Tyler, and Michael and Brian.
Veillard: And Claire and Ditchi [a Lesbian couple who were part of the action, and who like Tony and Tyler — but unlike Michael and Brian — also had made appointments].
Bohac: Beyond the possibility of getting marriage licenses, it’s also really important that the average person remembers that Gays and Lesbians are discriminated against. I can’t tell you how many smart people I’ve talked to who say, “Oh, can’t you get married already? I thought that was illegal,” referring to Proposition 8. And I have to say no, discrimination is still going on. So every time we do some sort of an action or event, for me one of the goals is to make sure people know that Gays and Lesbians are still being discriminated against by the state.
Veillard: It’s calling attention to the fact that the injustice continues, that Proposition 8 is still the law of the state, in spite of having been overturned by two federal courts.
Khabir: It’s absurd. When you look at the path of marriage equality in the U.S., it looks like more and more states within a number of years are going to adopt it. It looks like Maryland is going to be the next one, and even though the law that prevents us from getting married had been declared unconstitutional twice, people still can’t get married. The reason isn’t because of any harm to the state. There’s no harm to anyone.
Veillard: It’s just a delay in the delivery of justice.
Bohac: I assume I speak for other people in saying that when we work for marriage equality, we’re working on LGBT [Queer] equality in general. S.A.M.E. was organized right after the passage of Proposition 8, and we did focus on marriage equality for at least a couple months. But then we began working on other issues like “don’t ask, don’t tell” repeal, Transgender acceptance. We have, I think smartly, reached out to other oppressed-people movements, to create solidarity with LGBT and immigrants’ rights, students who are fighting for funding in their schools. Marriage equality is an issue we fight hard for. But it’s a symbol of other forms of discrimination that Gays and Lesbians face.
Zenger’s: I understand at one point you were actually offered a plea bargain. What was the deal you were offered, and why did you decline it?
Khabir: It was a tough decision. I can’t speak directly for those who took the plea bargain, but no one feels like we’re guilty. I think a lot of us have a problem with the fact that in order to erase all this, you have to sort of say something that you really feel isn’t true.
Bohac: Not “sort of.” You explicitly have to say something that’s not true.
Khabir: I think the day would have happened a lot differently if they’d let us into the office where marriages were being performed, or the clerk’s office. We weren’t even allowed into the clerk’s office. No one from our group was allowed in the clerk’s office.
Veillard: Couples who had appointments were not allowed into the clerk’s office.
Zenger’s: So they were not allowed in, not even to be told, “No, there’s a stay that the Appeals Court put on it, you can’t get married today.”
Khabir: Right. There were sheriffs blocking the door, and when a sheriff is blocking a door, keeping you out and letting in a heterosexual couple, it’s really hard to say, “Well, that’s O.K. We’ll just sign on the dotted line and forget all about this,” you know?
Bohac: I believe we were offered a plea bargain where we could plead guilty, accept eight hours of community service.
Khabir: Which shows how minor this really is. What they really wanted us to do was say, “We did bad,” and end it. Because they know we’re all involved in a non-profit organization, right? They all know the eight hours is not a problem. We do 20 to 30 hours a week of non-profit work. But I think the plea is in and of itself an admission of their wrongdoing, not an admission of ours.
Bohac: Right. And I felt like they should be dropping the charges. It wasn’t up to us to drop the charges. The city should have recognized that they were going to spend a lot of money to try to make an example out of the nine of us, and they’re not — it’s uncertain what’s going to come out of the trial, but there’s no guarantee that they’re going to win.
Veillard: And we’re right.
Bohac: They’re the ones who are deciding to spend a bunch of money to try to get us.
Veillard: These are taxpayer dollars, by the way, to put things into context, in a time when, according to the judge who’s going to be overseeing the trial herself, the San Diego County Superior Court is facing millions of dollars of budget cuts in the next year. And here they are pursuing this trial, which is going to take tremendous amounts of resources, because it’s going to take a full week’s trial.
They expect an extensive jury selection process, because this is a civil-rights case. They intend to make sure they get rid of any quote-unquote “bias” from anyone who actually believes in LGBT equality, or anyone who already has an opinion about Proposition 8 — which is going to be hard to do, since this is a very polarizing issue. So the jury selection alone is expected to be a drawn-out process, an expensive process.
Bohac: And it’s not just a three- to five-day trial. I happened to run into my lawyer last night, and he talked about how the city is spending time submitting their briefs and doing all kinds of research.
Veillard: A lot of work is going into this.
Khabir: In order to stop people from peacefully chanting, “We Want Equal Rights.” It’s just absurd.
Zenger’s: Do you think one of the reasons they are pushing this is to set a kind of precedent for the people who’ve been arrested during the Occupy demonstrations?
Bohac: I don’t think so, because we preceded it by a year.
Khabir: It seems like we were well on our way to a trial before the police really cracked down on Occupy the way that they did later on. Occupy is definitely going to play a part in whatever decision is made. It’s just that I’m not clear which way it’ll go. But that’s another reason not to take the plea: because of Occupy, because —
Veillard: We have to stand up.
Khabir: We have been down there, and we have seen them [the police] tell people they were going to be arrested for leaving their book bag on the ground.
Bohac: Many of us were excited when Occupy San Diego was forming, drawing crowds and working towards making a statement that represents why people are dissatisfied in these times. I think that kind of expression is really important in society, and so we have to fight this case, partly because if we win, it’s going to encourage other people to stand up and represent themselves when they feel like some kind of injustice is taking place.
Zenger’s: But there are some people who would say, “What’s the big deal? This is a struggle about marriage equality and civil rights, and Occupy is about economic distribution and the 99 percent and tax rates and corporate profits and whatnot. Where is the real connection between the issues?”
Khabir: The connection is everything that’s used to divide the working classes. Homophobia is a way for a group of people to be set apart from another group of people, and not be able to unite and struggle together in order to make their lives better. As someone who supports Occupy, it’s important for me to fight homophobia because homophobia is a tool of the 1 percent. And as a Queer person, Occupy is important to me because I am part of the 99 percent, because I have a job; because a lot of my friends are unemployed; because I am sick of watching very rich people live very easy lives, while people who work really, really hard struggle to make it.
Veillard: Another thing I would add to that, too, is that the way that the Equality Nine are being prosecuted is a counterpoint example to exactly what Occupy is protesting, which is why is it that the 1 percent get away with massive economic crimes without trial, without investigation, without prosecution. Even if you agree with the San Diego city attorney that we were obstructing business that day — which we contest —that’s a petty crime. Why is it so important to prosecute these petty crimes, and yet we can’t get prosecutions against the 1 percent that starve people and make them homeless and jobless? Why aren’t those crimes prosecuted with the same zeal? That’s the big question of the Occupy movement. And I think we’re proud to be a part of that, for that reason.
Also, Occupy has been so supportive, and expressed such strong solidarity with the Equality Nine, since learning about our story, not only because of its demand of civil justice for same-sex couples but also for what I believe they consider to be the bravery of the Equality Nine in standing up to the law and being willing to put our bodies on the line, and even be arrested if necessary, to stand up for what we believe is right. Occupy has that same spirit of militancy, and I think that’s why they appreciate our struggle.
Bohac: There’s a guy who came to our rally on Tuesday [February 7] who was with Occupy, and he mentioned that it wasn’t too long ago that he was homophobic. He said his interaction with Occupy cured him of that idiocy, and he was impressed with the Queer community because he felt like we were like the smallest group, but were making the most noise to achieve justice.
Veillard: There’s a sense of admiration for the LGBT community and the strength and militancy of its movement and its willingness to fight back against injustices toward our community.
Another comment I want to add is that even though we supposedly live on the value of innocent until proven guilty in this country, the fact is that being arrested is a presumption of guilt and comes with its own punishment. All of us missed work that day. All of us had to explain it to our workplaces why we missed work. That put us in danger of losing our jobs. It’s a loss of a day’s wages. There are so many punishments built in just to being arrested, supposedly under the presumption of innocence. It’s a contradiction in itself.
The system is rigged to find the poor guilty. Had we not had nine extremely qualified, skilled and experienced civil-rights attorneys offer to defend us, I think almost all of us would have had to be defended by public defenders. And I don’t think any of those public defenders would have advised us to plead not guilty and to fight these charges. Instead, we probably would have been advised to accept the plea, which is itself punishment.
Khabir: And we probably would have had a much worse plea offer, as well. But I think the reason we have the support we do is there’s a really good feeling that the two issues we’re talking about here, free speech and marriage equality, are really, really important bedrock issues that are worth fighting for.
Veillard: I want to say, too, that I think the city attorney is going to pay for having prosecuted us in a couple of ways. One, if he didn’t want any additional attention to the marriage equality issue, he’s made a big mistake, because trying us is simply going to force this issue into the news.
And the second thing is that he’s on the wrong side of history. Whether it’s this year, or in 10 years, or in 20 years, he’ll be proven wrong. By prosecuting us and forcing us to fight these charges, and making it a bigger issue than it needed to be, he’s inflating the level of embarrassment he’s going to have to face by pressing these charges when he could have simply dropped the charges and saved the city a lot of money, and us a lot of time.
Zenger’s: I know that’s a phrase that’s used a lot in the discourse on marriage equality, especially from our side, that this is the tide of history. On the other hand, every state in the United States that has had a chance to vote on whether same-sex couples should get married has voted against it. California, generally known as a liberal state, especially on social issues, has voted against it twice.
In both Washington and New Jersey it is likely to come before a vote again — in Washington because, though the governor signed it into law, the opponents have a chance to put a referendum on the ballot to repeal it; and in New Jersey because the governor vetoed it and said, “I want the voters to decide this, not the legislature.” Given that, so far, it has been impossible for the marriage equality movement in this country to get the voters of a state to say, “Yes, same-sex couples should be able to get married,” why do you say, “This is the tide of history”?
Khabir: I think there are a couple of things wrapped up in there. One, we’ve lost at the ballot box. But we also get closer to winning at the ballot box every time around. And we also have some really vicious, really well-funded opposition that tells lies — yeah, let’s call them lies — to voters about what these laws actually mean. We also have a huge abstention rate with voting in this country, and that’s another issue altogether.
So where I say the tide is changing is, one, public opinion is changing. Two, we are seeing more rights, more visibility, etc. But I think you’re right in that there are no guarantees. We’ve gone backwards on women’s rights in a lot of ways. There are some ways in which we’ve advanced, but without struggle, there’s no guarantee that the tide of history will go on our side.
But I think what Cecile is banking on, and what we’re banking on, is that people are not just going to sit around and wait for it to happen, and that we’re — just what we’ve seen in the last couple of years. Last Tuesday [February 7] when we had the rally [to support the Ninth Circuit Court of Appeals for upholding Judge Walker’s decision that Proposition 8 is unconstitutional], it shows that people are willing to come out and make it a big deal to say that they’re going to keep fighting for it, to say that it’s not O.K., it’s not something that they’ll just wait around for. Should we be voting on people’s rights anyway is another question.
Zenger’s: I know that a number of people have pointed out that if the opponents of interracial marriage in 1967 had had a way to put Loving v. Virginia on the ballot, civil rights would have lost then, too.
Khabir: And they’d do it today. Imagine if that were a law today, and imagine that the campaign against interracial marriage were being launched by the National Organization for Marriage and Rick Santorum. I can’t say for sure that people, even today, wouldn’t vote overwhelmingly against interracial marriage.
Bohac: I think I’m a little more optimistic. I’m pretty sure that Maine is going to be the first state to pass a referendum in support of Gay and Lesbian rights to marry. It’s clear to me that you can judge a tide of public opinion based on polling. Because we haven’t got the 50 percent plus one in any of the elections that have taken place, it sounds like it’s all one way. But really it’s been coming our way the whole time.
Veillard: I wanted to say a couple of things to Zakiya’s point about whether civil rights should be voted on. I think that’s a debate that really needs to be had in this country. I think that the principle that most Americans believe this country is founded on is the basic freedom to do whatever it is you want to do so long as you’re not harming anyone else.
Gay marriage doesn’t harm anyone. There’s that clever sign that says, “If my Gay marriage affects your marriage, then your marriage needs therapy.” You could say the same thing about abortion rights. You could say the same thing about the freedom of choice to end your own life with dignity at a time when you feel prepared to do so if you’re suffering from a terminal illness. The right to use medical marijuana. All these things that are under attack, that really ought to be basic civil rights.
And also to Zakiya’s point about sort of the tide going in our direction, there’s Martin Luther King’s quote that the arc of history is long, but it bends towards justice. If you see the arc as a bar of steel, then to Zakiya’s point that nothing is inevitable, that we have to continue to fight for what we want. Our job is to keep the iron hot.
Zenger’s: Because I could imagine myself — thought experiment — interviewing three members of the National Organization for Marriage and ProtectMarriage.com, and they’d be saying, “Well, what do you mean, abortion doesn’t hurt anybody else? It’s killing millions of innocent babies! What do you mean, same-sex marriage doesn’t hurt anybody else? It makes America disfavored in the eyes of God!”
Bohac: But what does that have to do with government?
Veillard: Yes, with the separation of church and state we’re not supposed to decide our laws based on the fear of God.