“Equality Nine” to be Arraigned in Court September 30

Protesters Wanted People to Get Married — Not Arrested

by MARK GABRISH CONLAN

Copyright © 2010 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTOS, top to bottom:

“Equality Nine” members Zakiya Khabir, Kelsey Hoffman, Cecile Veillard and Sean Bohac are confronted by sheriff’s deputies in front of the San Diego County Clerk’s office during the August 19 marriage equality demonstration. (Anonymous photo: courtesy Sean Bohac.)

The San Diego County Sheriff’s Department called in at least 50 deputies in full riot gear to deal with 20 peaceful demonstrators and make nine arrests. (Photo: Eric Isaacson.)

Protesters, security, passers-by and media during the marriage equality demonstration at the San Diego County Clerk’s office August 19. (Photo: Eric Isaacson.)

L to R: Mike Kennedy, Cecile Veillard, José Medina. (Photo: Mark Gabrish Conlan.)

When the members of San Diego Alliance for Marriage Equality (SAME) planned their August 19 action at the San Diego County Administrative Center, 1600 Pacific Highway downtown, they had no way of knowing what the legal status of marriage equality in California would be when the day arrived. “We had planned for 1 1/2 weeks to go to the county clerk’s office and either celebrate or protest,” said Sean Bohac, one of the “Equality Nine” who were arrested during the action and have a court arraignment date September 30 at 220 West Broadway downtown.

During the first two weeks of August, marriage equality supporters in California rode a roller-coaster ride alternating hope and despair. The hope began on August 4, when Judge Vaughn R. Walker released his decision in Perry vs. Schwarzenegger, the case brought by attorneys Ted Olson and David Boies challenging Proposition 8, California’s voter-approved ban on same-sex marriages, as unconstitutional. Judge Walker not only threw out the measure as a violation of Gay and Lesbian Californians’ right to equal protection, he wrote a series of 80 “Findings of Fact” that eviscerated the arguments against marriage equality and documented how the supporters of Proposition 8 had based virtually their whole campaign for the measure on bigoted, prejudicial arguments against Queer people.

Judge Walker agreed to “stay” — legal-speak for “delay” — his ruling for eight days, then issued an order that California stop enforcing Proposition 8 and allow same-sex couples to marry after August 18. SAME members Michael Anderson and Brian Baumgardner, a couple who’ve been together nearly 10 years and who had led a similar protest at the County Administrative Center on May 27, 2009 after the California Supreme Court ruled that Proposition 8 was constitutional, laid plans to go to the county clerk and ask for a marriage license. SAME, of which Anderson and Baumgardner are members, planned a demonstration outside the county building at noon August 19 that would end with their accompanying Anderson and Baumgardner to the clerk’s office — either to celebrate if they got their license or to sit in if they didn’t.

However, on August 16 the Ninth Circuit Court of Appeals extended the stay until they have a chance to hear the case. Their ruling wasn’t entirely a defeat for marriage equality; they set up an unusually quick schedule — demanding an opening brief from Proposition 8’s defenders on September 17, an answering brief from its opponents on October 8, a reply brief from the pro-8 side on November 1 and court hearings December 6-10. What’s more, they asked the defenders of Proposition 8 to address the issue of “standing” Judge Walker had raised in his order — the possibility that, since California Governor Arnold Schwarzenegger and Attorney General Jerry Brown had refused to appeal the decision invalidating Proposition 8, the people who put it on the ballot and defended it before Judge Walker may not be able to appeal because they haven’t shown that they would be harmed personally by its invalidation.

Nonetheless, to same-sex couples wanting to get married and expecting to be able to as soon as August 19, the Appeals Court decision came as a blow. David Butler, San Diego County’s assessor/recorder/county clerk, immediately sent out a press release saying “this office is prohibited from issuing marriage licenses and performing civil marriage ceremonies for same-sex couples until further action by the court.” He also put a similar notice at the top of the home page of his office’s Web site, announcing that all existing appointments for marriage licenses and ceremonies by same-sex couples were canceled and no new ones would be booked.

One couple who didn’t take that lying down were Tony and Tyler Dylan-Hyde, who had actually signed up for a marriage license appointment at 8 a.m. August 19. They had one advantage over other couples who wanted to challenge Butler’s decision: Tyler is an attorney by profession. He wrote up an extensive legal document explaining why he thought Butler should give them their license “We believe that your office is compelled to issue … marriage licenses and to perform civil marriage ceremonies for same-sex couples under California law, and in accordance with your oath and obligations as set forth in the California Constitution,” Tyler Dylan-Hyde wrote.

Tyler wasn’t available to Zenger’s for an interview, but his fiancé Tony was. “We had our appointment with the County to get our marriage license and had every intention of getting our license,” Tony said. “We did expect to get rejected. We had some hope the county clerk would see it our way. … We don’t believe that their hands are as tied as they say they are. … One of the main reasons we kept the appointment was to make the point that we still deserve a license.”

The Dylan-Hydes learned about SAME’s scheduled protest from Facebook, Tony told Zenger’s. Though there were at least two couples in SAME’s circle interested in applying for licenses that day — Anderson and Baumgardner, and Claire Manley and her fiancée Ditchi — the fact that the Dylan-Hydes already had an appointment for 8 a.m. and were going to be inviting the media led SAME to move up their scheduled protest from noon to 8 a.m. “I was excited to be fighting for someone specific,” Bohac said. “We had a couple [Anderson and Baumgardner] in our group, but [the Dylan-Hydes] had a really great angle. They were feeling like the county clerk should pay attention to the chief executive of the state” — Governor Schwarzenegger, whose office had filed a motion at the Court of Appeals asking them not to stay Judge Walker’s decision.

About 30 members and supporters of SAME arrived at 8 a.m. August 19 to support the Dylan-Hydes and stage a protest in case they weren’t given a license. At first the plan was to do two simultaneous actions, a sit-in inside the building and an open-mike rally outside, as SAME had done in May 2009. However, as SAME member José Medina told Zenger’s, “Events kept overtaking us. A lot of people went up to see the action inside. We had at most six to 10 people outside.”

Equal Rights Denied

“Throughout the morning, there was a reasonable chance of success,” Bohac told Zenger’s. “At 8 a.m. we got together and had a discussion with some of the staff in the office. It seemed less likely after we talked with David Butler. There was a point at about 9:30 a.m. or so when the clerk had dismissed Tony’s and Tyler’s request. At that point, it felt like the trigger for invoking the sit-in, and since we weren’t even allowed into the marriage license office we did the sit-in in the hallway.”

“I talked to Tony and Tyler for 15 minutes and gave them the number of the county counsel,” assessor/recorder/county clerk Butler told Zenger’s. “I don’t know if they pursued [a contact with the county’s official attorneys], but I certainly didn’t shut them off. I listened to them and read everything they presented to me.” But, Butler said, his position remained firm. “We couldn’t marry them,” he said, adding that because the appeals court stayed Judge Walker’s decision “it isn’t registered and it has no effect until the stay is lifted.”

One of the frustrations moving the SAME members was that the state and county took a very different tack when Proposition 8 passed on November 4, 2008. San Diego and California’s other 57 counties stopped issuing marriage licenses to same-sex couples on November 5 — not even waiting for the usual week or so it takes for election results to be officially certified. “Now that it’s been declared unconstitutional, they should start [issuing same-sex marriage licenses] again,” said SAME member Drew Searing, who wasn’t at the August 19 action — he had to work that day — but was involved in planning it. “Our point was there’s no reason for them not to issue marriage licenses now.”

The SAME members who spoke to Zenger’s all insisted that, contrary to some other media reports, the August 19 protest was not intended as a civil disobedience action. The participants were not deliberately setting out to be arrested, though they realized that might happen. “My primary hope was to see Tony and Tyler, and Michael and Brian, get their licenses,” said Laura Woodward, who like Medina was supposed to be running the outside rally and who attended the action but was never inside the county building. “The ruling [by Judge Walker] was in our favor, and we were just asking for justice.”

“We hoped the event would attract the attention of the county clerk, and the Governor’s and Tony’s and Tyler’s legal arguments would persuade the county clerk, and by the end of that we would have marriage licenses,” said Kelsey Hoffman, one of the Equality Nine who did get arrested. “We didn’t want to get arrested, but we knew it might be a consequence of demanding marriage equality. I personally really hoped Michael and Brian would leave with a marriage license. Our research indicated there was a very good chance the county clerk would issue marriage licenses.”

“We spent the first 45 minutes talking to David Butler and trying to persuade him to do the right thing, but he ended up telling us he’d get back to us the next day,” said SAME member Cecile Veillard, another one of the Equality Nine. “They wouldn’t let any of us in the door to present Tyler’s letter, and they pulled through the opposite-sex couples [who were there to be married]. There was one sheriff’s deputy standing behind us, and they diverted opposite-sex couples to another wing of the building. Other opposite-sex couples walked over us. David Butler said we had to leave and we had no business there.”

Mike Kennedy, another arrestee, arrived at the demonstration 10 minutes late — missing the Dylan-Hydes’ approach to Butler but catching their impromptu press conference in the hallway after they were turned down. “There was a blonde woman county official standing in the doorway and a second person behind her,” Kennedy recalled. “I asked what her authority was to bar me entry, and they slammed the door in my face.” Like Searing, Kennedy was upset that both Proposition 8 and the California Supreme Court decision upholding it were enforced immediately, but Judge Walker’s ruling that it’s unconstitutional is being held up in the legal system for months or even years.

David Butler told Zenger’s he checked with the clerk of the San Diego County Board of Supervisors (his immediate superior) before he ordered the SAME protesters arrested. “I made a decision, and the clerk of the board made a decision, not to let them stay in the office,” he said. “They were allowed to stay in the hallway and chant, as long as they didn’t block the door. I told them that if the ruling had gone the other way and a group from the other side had blocked my office to block us [from issuing marriage licenses to same-sex couples], they would have been upset. It was when the sheriff’s office was told they were refusing to move that it went the way it did. I was fine with them being out in the hall.”

50 Deputies in Riot Gear

The first intimation SAME’s protesters got that law enforcement was about to arrest them came from outside the building. With just six to eight people at the outside vigil, José Medina recalled, “we decided to close up shop after a while when we saw the police cars show up. Part of our job was to send texts to the people inside. When we saw the sheriff’s deputies pull up in the buses and our colleagues get arrested, we started chanting, ‘Civil rights heroes! Let them go!’ When they were arrested we stood in front of the buses and chanted some more for about 10 to 15 minutes until one of the deputies said the sooner we got out of the way, the sooner they could process our colleagues and they could be released.”

Mike Kennedy was upstairs participating in the sit-in when word came from Medina and the other outside demonstrators that 50 sheriff’s deputies in full riot gear were coming up to arrest them — and they had two buses waiting outside to take the horde of protesters they apparently expected to jail. “Within an hour, by 10 a.m., we were all being arrested,” Kennedy said. “They warned us people would be coming in riot gear, which I guess was supposed to scare us, and they took us out one by one.”

“The sheriff’s deputies were a bit threatening, but respectful,” said Bohac. “There were people at the county clerk’s office whose politics didn’t seem to line up with ours.” Bohac said he was one of the first people arrested when he wouldn’t move out of the way of a straight couple entering the office to get married, and he and the other arrestees were initially held in the basement of the County Administrative Center until they were taken to county jails.

“There were 50 to 60 sheriff’s deputies, an overwhelming number of them, and one of them had a bullhorn and made a statement declaring this an unlawful assembly and demanding that we leave, or we would be arrested in two mniutes,” said Veillard. “We said we had no reason to leave until Tony and Tyler, and Michael and Brian, were married. We were told we were under arrest, and we complied. They led us downstairs in plastic-tie handcuffs and took us to the basement, where we were processed.”

“On the whole, we were treated nicely,” said Kennedy. “They didn’t treat us like convicts or anything. I’m sure they could have held us much longer.”

May 2009 vs. August 2010

The difference between the way the county authorities handled the SAME demonstrators in May 2009 and the way they acted on August 19 was so striking Zenger’s asked both the SAME protesters and Butler why the two actions were handled in virtually opposite ways. In May 2009, SAME members and other participants in the sit-in at the county clerk’s office were allowed to occupy a room inside the office all day, where they read aloud various articles about Queer history (including one about the Stonewall Inn riots in New York City in June 1969, commonly but erroneously believed to be the start of the Queer rights movement in the U.S.) and chatted about why they were there. At least two SAME members recalled being escorted outside the building in plastic cuffs after closing time and told they were technically under arrest, but all of them were released immediately and no one was criminally charged.

What was different this year? Veillard, who actually entered the building before the Dylan-Hydes got there to present their letter to Butler, said what seemed different was “the clerk seemed determined to carry on their business, which was marrying opposite-sex couples and not same-sex couples. I had got a call from Carlos Marquez [director of political action for the San Diego Lesbian, Gay, Bisexual, Transgender Community Center, who did not respond to a phone message from Zenger’s] who said we were there specifically to be arrested. We weren’t, but the Sheriff’s Department may have got the wrong idea. We knew we were risking arrest, but that wasn’t our intention.”

“I think what was fundamentally different was that in May 2009 we were allowed inside the office as business continued,” said Kennedy. “This time there was a more confrontational tone. That’s what made it seem like we were obstructing their business. We were arrested in 2009, but we were just walked outside the building and then we were released.”

Bohac said he thought the county came down harder on them this time than in May 2009 “because we told them we were coming. I think there’s a little bit of personal politics with at least one employee of the county clerk’s office. They had set up at 8 a.m. and were not allowing [same-sex] couples who had appointments to enter. Tony and Tyler showed up for their appointment and the woman stood at the door and said they wouldn’t be issuing licenses to Gays and Lesbians. … Last year, they moved the marriages to another room and allowed us to gather all day while they did business elsewhere. This year I guess they didn’t want to get as creative as that.”

“First of all, they were warned this time by people from different agencies, including Carlos Marquez of the Center, that put us in an unfavorable light,” said Searing. “In May 2009 we notified the police ourselves. My personal opinion is the country administration might have expected more people than last time, and thought we’d be super-angry and do more than a nonviolent sit-in. Maybe they didn’t know what we were going to do.”

Butler said that in 2009 “we’d actually worked with the Center and had made the decision to let it go. Since then we’ve changed the setup of our office and we’re now appointment-only” — suggesting that even if there hadn’t been a stay and San Diego County had started marrying same-sex couples again August 19, the Dylan-Hydes would have got their license but Anderson and Baumgardner wouldn’t have. “We have two marriage rooms now,” Butler added, “and that’s why we ask everybody, other than the couples scheduled to get married, to wait outside.”

According to Butler, the last time the county performed same-sex marriages — during the four and one-half month “window” between June 15, 2008, when the California Supreme Court’s decision upholding the right of same-sex couples to marry came through and November 4, when Proposition 8 passed — “I was getting complaints from couples that they had to wait two hours. There were couples who’d show up at 4:30 p.m. and I’d feel duty-bound to marry them, and that was running into overtime. The other reason was budget. My budget was cut by 12 percent and we have to alleviate overtime.”

The Legal Consequences

The Equality Nine — Michael Anderson, Brian Baumgardner, Sean Bohac, Felicity Bradley, Kelsey Hoffman, Mike Kennedy, Zakiya Khabir, Chuck Stemke, and Cecile Veillard — were first called that by SAME members and supporters who gathered outside the county jail downtown at 5 p.m. August 19 for an impromptu support rally. They were released on their own recognizance and given legal papers saying they were being charged with trespassing and obstructing the operation of a government service or private business — a misdemeanor punishable by up to 90 days in jail and/or a $400 fine.

The nine were meeting with attorneys around the same time four of them were being interviewed for this article, and they were getting a view of the potential legal consequences that sounded like Franz Kafka was alive, well and writing the California penal codes. Though the misdemeanor charge is the one specified on their legal papers — which order them to appear in court September 20 at 12:30 p.m. for arraignment (which puzzled some of their attorneys because the courts are closed for lunch from noon to 1) — the nine were told that the San Diego city attorney, who’ll be responsible for prosecuting them, has a wide range of options, from dropping the charges altogether to making them more severe.

“We won’t know for at least a year whether they’ll file other charges,” Bohac said. “I was arrested 18 years ago in a similar circumstance for an environmental cause. If we end up getting 24 hours of community service and a $100 fine, I will feel like it was a good price to pay for raising consciousness. If it’s overly harsh, that won’t do us good. I hope it will end up something that will be a reasonable price to pay for our success.”

“They have six months to decide what the charges are, which was news to me,” said Kennedy. “Our charges could be dropped, or they could be worse. I haven’t thought that much about the consequences. I’m not pleading guilty at this point.”

“There shouldn’t be any legal consequences,” said Veillard. “We were just there to speak with a clerk and ask for our legal right to marry. We intend to plead not guilty on September 30 and hope all the charges will be dropped. If the city attorney continues charges against us, it’s just a continuing offense against our community’s civil rights.”

Hopes and Accomplishments

Zenger’s asked participants in the August 19 action, including four of the Equality Nine who were arrested, what they hoped to accomplish by being there and whether or not they thought it had been a success. “I believe that historically it was a necessary action,” said Searing. “Someone needed to say we were angry and should have got our marriage licenses that day. We researched it and found that no actions were planned in Los Angeles or San Francisco. Our group tries to be the leaders in such actions. If no other groups in other cities were going to show their anger, we wanted to do it ourselves and be part of that.”

Bohac recalled the optimism with which he and the other SAME members went into the county building at the start of business August 19. “I had read Tony’s and Tyler’s letter, and there was at least a reasonable chance that, following the statement of the Governor, Attorney General and Judge Walker [they would have got their license]. Barring that, the second purpose was to make noise and let people know that Gays and Lesbians are still being discriminated against even though a federal judge has said there was no cause to stay his ruling based on any of the four points” — the legal criteria under which stays are usually issued.

“It’s extra-painful that Proposition 8 gets to stand when there’s little potential they will win and some potential they won’t even be allowed to appeal,” Bohac added. “A lot of us were concerned that marriage licenses were stopped immediately when Proposition 8 passed, and now it’s being allowed to stand for months or even years while the case is being appealed. The judge found Proposition 8 is discriminatory, and we didn’t want the stay to go into effect silently. A third goal was the responsibility of citizens to stand up when they don’t like what’s happening. It’s upholding the duty to stand up and say what we think.”

“Our biggest hope — and it isn’t that we expected the clerk to do so — was to get Tony and Tyler married, along with Michael and Brian, and Claire and Ditchi,” said Veillard. “Our secondary objective was to force the issue into the news and make the case that there’s no real reason not to marry same-sex couples. It did generate a lot of media attention,and we hope that will help lead to a good decision by the 9th Circuit to stand behind Judge Walker’s decision. Ditchi and Claire were in tears when they watched Tony and Tyler make their case. They went back and forth with [Butler] for several minutes. They’d had a wedding ceremony the weekend before.”

Aftermath

Zenger’s asked the interviewees both where they think the marriage equality movement is going and what they personally intend to do for it in the future. “We’re in a letter-writing campaign with San Diego County,” said Tony Dylan-Hyde. “Tyler shot a letter off to them on August 25. We’re becoming more active in the community and more involved in electoral politics, supporting candidates who support marriage equality. I will be volunteering for candidates. Tyler has a legal background, so that’s where our energies will be spent. We’re trying to show we’re no different from heterosexual couples. We go to work, pay taxes, spend time together and cook. We’re not doing any harm, physically or mentally, to [heterosexual people’s] marriages.”

“I think the movement is growing, in terms of the number of people aware and paying attention to the lack of equality,” said Bohac. “The federal court case probably makes some people feel powerless in terms of what to do about it. I was involved in the Restore Equality 2010 campaign [to put a repeal of Proposition 8 on this year’s California ballot], but while the court case is going on I don’t think anyone is going to be interested in funding people to gather signatures. People into door-to-door canvassing aren’t going to be as motivated. People are unsure what to do right now and that’s one reason we wanted to do a visibility event, because the courts aren’t averse to following public opinion. I can’t think of many other ways people can make sure the federal courts know they care.”

“I think it’s a tidal wave at this point,” said Veillard. “The Massachusetts court decision declaring DoMA [the federal Defense of Marriage Act of 1996, which defines marriage as the union of one man and one woman] unconstitutional in that state is a huge landmark, and I want to see it go all the way and beat the challenges. I fully expect same-sex couples in California to be able to marry soon. I think public opinion has changed [since Proposition 8 passed], and only a small minority still sees an interest in preventing same-sex couples from marrying. I don’t know whether President Obama will keep standing in the way of progress on this issue or get out of the way. I think he’s behind public opinion and progress.”

As for David Butler, he got the job of San Diego County assessor/recorder/county clerk by appointment after his Republican predecessor, Gregory Smith — who held the job during the 2008 “window” when same-sex marriages were allowed in California — retired. This year he’s running for the office as a Democrat against Republican Ernest Dronenburg, and he asked for — and got — the endorsement of the predominantly Queer San Diego Democratic Club after telling them he supported marriage equality.

Asked if his aggressive response to the August 19 sit-in might jeopardize Queer community support for his campaign, Butler said he was confident it wouldn’t. “I’ve talked to several people who approved of the way I handled it,” he explained. “When we were able to do [same-sex] marriages, I was glad to do it and performed several marriages myself. I disagreed with my predecessor’s decision to allow employees who had moral objections to opt out [of issuing marriage licenses to same-sex couples or performing same-sex weddings]. In 2008 we went out to the LGBT [Queer] community and met with several groups to ensure they would be treated with dignity, and they were. I think people realize I’m in a tight situation. I took an oath to uphold the law of the land, and I don’t agree [with Tyler Dylan-Hyde] that I have a right to perform those marriages before the Appeals Court decides the issue.”

Drew Searing noted the irony of his situation because he actually is married. He and his husband Puma were legally wedded during the 2008 “window,” and one way he’s personally fighting for marriage equality is to “constantly refer to my husband as my husband,” and not his “partner” or any of the other common euphemisms for same-sex couples. “It’s still shocking to do that, but the more we do that, the more people will get used to it. I just like to flaunt the fact that I’m married.”