No Photo of Gay Pair, No Memory Book, Judge Says; Publisher Cries ‘Censorship’

Rejecting claims of censorship, a judge Monday ordered a publisher not to print an Irvine high school reunion memory book unless it contains the picture of two homosexual lovers.

The winner in the case--for the moment--was David Engel, who went to court to force publication of the picture of himself and fellow Broadway actor Eric Underwood.

Orange County Superior Court Judge Tully H. Seymour signed a preliminary injunction ordering Dan L. Worthington, head of Worthington Reunion Photographers, not to print a 10th-year reunion book for University High School alumni without the photograph of the two men. Worthington produces books under contract for 135 high school reunions.

Seymour’s decision, issued in Santa Ana on Monday, means Engel cannot be excluded from the book before a full trial is scheduled on the actor’s claim that Worthington violated the Unruh Civil Rights Act, California’s main civil rights statute.

Engel’s attorney, Gloria Allred, called the case a “significant, pioneering” one. “It’s important because David and Eric have chosen to fight back. So many people who are gay choose to stay in the closet because they fear the very real discrimination that still exists in the world.”

Not Surprised

Reacting to the judge’s decision, Worthington said he is “never surprised by what happens in court anymore,” adding, “It was a difficult decision for (the judge). We’re dealing with areas that have never been brought to court’s attention before.”

Worthington, whose attorney had argued that Engel was trying to censor the reunion publication, said he will pursue the case as far as it takes to win.

“It’s pretty frightening if someone gives some thought to it,” Worthington said of the judge’s restraining order. “I can’t imagine that (a newspaper) would operate one minute if everything that’s going to be in it would be predetermined by somebody else.”

His attorney, David L. Llewellyn Jr., suggested that his client might decide not to publish the memory book at all to avoid including the picture of Engel and Underwood. Worthington noted that the book has not yet been ordered by the reunion committee.

Engel, meanwhile, celebrated both the courtroom victory and his 28th birthday Monday. The actor said he will continue to refuse to be told “what to think, how to feel, and who to love.”

Civil Rights Law

Seymour, in his one-line decision, appeared to accept arguments by Allred, a noted civil rights lawyer, that state civil rights law prohibiting discrimination on the basis of sexual preference means that the picture must be included.

During arguments for an injunction, Allred called Worthington’s policy against printing same-sex portrait photos bigoted.

But Llewellyn argued that the injunction would be tantamount to censorship, saying, “The court has no authority to intervene in the editorial judgment of Mr. Worthington.”

While advertising may be subject to state civil rights laws, he said, the reunion books contain no ads. The books therefore are similar to the purely editorial content of newspapers, and publication may not be banned in advance, he said.

“Censorship is not public policy of the state of California,” Llewellyn argued.

Allred countered that the neutral content and “ugly profit motive” of Worthington’s enterprise made it unworthy of constitutional protection.

“The profit motive is not a permissible reason to create a glaring exception to (Engel’s) rights under the state civil rights act,” Allred argued.

Reunion books are much more like business directories than newspapers, Allred said, pointing out that such directories have been subjected to civil rights restraints.

“(Worthington) is entitled to those beliefs; he’s entitled to be wrong about it,” Allred told Judge Seymour. “But that’s not what this lawsuit is about. If he wants to believe the Earth is flat, he can do that. But what he cannot do is translate those beliefs into a discriminatory act.”

Worthington said he has advertised in several local newspapers for funds for his legal defense and has collected $500.

An elated Engel pledged Monday to continue the court fight.

“Is my relationship of four years with Eric less serious than that of a man who takes a woman to a reunion on the second date?” Engel asked. “Our relationship is real, and it’s taken very seriously by ourselves, our friends and our families.”