Law Protects Gays, Van de Kamp Says : Bars Employers From Discriminating, Formal Opinion Declares

A state law that protects workers’ rights to engage in political activity bars private employers from discriminating against homosexuals, Atty. Gen. John Van de Kamp said in a formal opinion Wednesday.

The opinion represented a victory for gay rights activists who lost a hard-fought battle two years ago when Gov. George Deukmejian vetoed a bill that would have prohibited employment discrimination against homosexuals.

While the opinion does not have the force of law, such a statement by the attorney general carries considerable weight as a guideline in courtrooms and law offices.

Although no one would predict in detail its precise effect on the private sector, legal experts said the opinion offered a new line of legal argument for those claiming to be victims of anti-homosexual discrimination.

“It seems to me that it breaks new ground,” said UCLA law professor Kenneth Karst. “The Legislature has been asked by gay rights groups to add laws like this in the past and the laws have not been adopted. This is a way of accomplishing by interpretation of existing law something similar to what what would have been enacted.”

Assemblyman Art Agnos (D-San Francisco), author of the gay rights bill vetoed by Deukmejian, hailed Van de Kamp’s opinion, which came in response to a question Agnos had asked him.

Agnos said that as a result of the opinion homosexuals “now have support for filing a lawsuit and they have a basis for appealing to their local district attorney for criminal prosecution when an employer violates their rights.”

Agnos said he will continue to push for enactment of anti-discrimination legislation, which he said would better protect homosexuals by specifically writing safeguards into the law and avoiding potentially long legal battles.

A spokesman for the California Manufacturers Assn., a major employer group that had initially opposed the Agnos legislation, said the opinion may help clarify “cloudy legal waters.” He said a summary of the document will be sent to members of the association.

Van de Kamp’s opinion was based on a 1979 state Supreme Court ruling that the declaration of one’s homosexuality was a political statement and was therefore protected under the state labor code.

In his opinion, Van de Kamp forecast that the court would extend the protection to all homosexuals on the ground that employers cannot discriminate against workers they believe to be gay. Such discrimination would be illegal because it would force gays into making a political statement by declaring their sexual orientation.

“We conclude that if an employer had a policy of discharging employees because the employer held a belief that the employee’s personal sexual orientation was homosexual, that policy would tend to control or direct the political activities or affiliations of that employee or others as well,” Van de Kamp wrote.

A spokesman for Deukmejian said the governor had not reviewed the opinion and had no comment on it.

Van de Kamp said in an interview that the decision was difficult to make and that there is room for legal experts to disagree on the issue. It took the attorney general more than a year to research and write the opinion.

“It is not without doubt, but we think the labor code covers it,” Van de Kamp said.

The opinion hinged on a case brought by the Gay Law Students Assn. against Pacific Telephone Co., charging that the utility practiced discrimination against homosexuals.

In a majority decision written by then-Justice Matthew Tobriner, the court in 1979 ruled that making a declaration of homosexuality was a political statement, because doing so is part of the movement for gay equality.

Discrimination against employees who engage in political activities has been outlawed under two sections of the labor code first adopted in 1915.

“Since the Legislature has banned discrimination against employees on the basis of their political views, activities and affiliations, and since the Supreme Court has defined self-identification of homosexual orientation as protected political action, the Supreme Court would also rule that a policy of discrimination against employees on the basis of beliefs as to their political orientation is also prohibited by the legislation,” Van de Kamp wrote.

Armed with the opinion, Agnos said he will call on businesses throughout the state to end any practice of discriminating against homosexuals. He also said he will acquaint district attorneys with the opinion and encourage them to give full consideration to anyone who complains of discrimination.