Prop 8 Protesters to Stand Trial

The fight over Prop 8 continues in the courts -- and in the streets.

A San Diego Superior Court judge has ruled that misdemeanor charges against same-sex marriage supporters arrested during a sit-down protest at the County Administration Center in 2010 should go to trial.

The defendants' supporters call them "The Equality 9" -- a reference to the San Diego Alliance for Marriage Equality, which was joined by activists from Occupy San Diego in a rally outside the San Diego County Courthouse before Monday's pretrial hearing.

The defendants are charged with refusing to disperse and interfering with the business of a public agency.

They were taken into custody during a lengthy sit-down protest in the hallway outside the County Clerk's office on August 19, 2010.

The clerk would not certify marriages for same-sex couples on grounds that a federal district court ruling overturning Prop. 8, California's same-sex marriage ban, was set aside pending appellate review.

The charges, if upheld, carry to 90 days in jail and $400 fines.

Defense attorneys say their clients were properly exercising their First Amendment rights.

"I don't think this is the case they should be pursuing; this is not one where you've got good facts," said attorney Judy Copeland.

"There's a common legal phrase that 'Bad facts make bad law'. And the city attorney might be very unhappy with the results that he gets out of this case."

Prosecutors say the protesters' conduct, which included blocking the main entrance to the clerk's office, was not Constitutionally protected.

"They had a First Amendment right to protest, but once they started interfering with the business of the county, their rights no longer applied -- the statute applied," said Dep. San Diego City Atty. Andrew Johnson. "They were violating the statute, which in effect trumped their First Amendment rights in this case."

Other defense counsel questioned the statute itself, California Penal Code Section 602, which prohibits interference with lawful business in an establishment open to the public, by way of intimidating or obstructing or refusing to leave the premises at the request of owners, managers, supervisors or peace officers.

"It is vague and it does have language problems," said attorney Gerald Blank in that it fails to notify people of exactly what they can and can't do in exercising their First Amendment rights."

Said attorney Todd Moore: "It doesn't make sense to the defense that you can be engaged in First Amendment activity and that statute applies. It becomes a form of entrapment ... the money that's going to be spent in parsing all this out really isn't worth the effort."

Johnson said that while the statute apparently is a "case of first impression" -- meaning, it has not been fully adjudicated to a legal precedent -- its clarity will be demonstrated by the facts of the defendants' conduct.

As for the prosecutorial expenses that may be involved, said Johnson: "When you break the law, it is our responsibility, ethically, to pursue charges if we have a reasonable expectation of winning at trial. That's our ethical obligation."

Johnson noted that one defendant has pleaded no contest to an infraction, dismissible after 8 hours of community service are performed.

He said say another has agreed to do the same, but hasn't yet signed the plea agreement.

A trial date for the case is pending.

And so are higher-court rulings involving Prop. 8.

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