Photographer Loses Appeal of Bias Suit Filed by Gay in O.C.

The state Supreme Court on Thursday rejected an appeal by a commercial photographer sued for sex discrimination after he excluded a gay couple’s picture from a 10-year reunion book produced for the Class of 1977 at University High School in Irvine.

However, while leaving an appellate ruling against the photographer intact, the high court withdrew the ruling as a precedent for future cases. The ruling contained criticisms by one appellate justice of the high court’s narrow reading of state civil rights laws.

Justices Stanley Mosk and Joyce L. Kennard cast dissenting votes to leave the appellate ruling on the books.

The ruling “still sends a message that discrimination against gay or lesbian couples will not be tolerated under the law,” said Gloria Allred, lawyer for the Orange County man who filed the suit. The man, David Engel, is entitled to damages and attorney’s fees as a result of the ruling.

The photographer’s lawyer could not be reached for comment.

The case involed a photo company that agreed to take portrait pictures of alumni for a memory book, but refused to include a picture of Engel, a theatrical actor, and his partner, Eric Underwood.

Dan Worthington, owner of the photo company, said he had a policy against taking pictures of same-sex couples because it would violate his beliefs and cost him advertising revenue. When the reunion committee objected, saying all alumni had been promised portrait pictures, Worthington decided not to publish the book.

Engel’s suit was dismissed by Orange County Superior Court Judge David H. Brickner, who said Worthington had shown no intent to discriminate and had stated valid business justifications for his policy. But the 4th District Court of Appeal ruled 2 to 1 last October that Worthington had violated the state’s civil rights law.

The lead opinion by Justice Sheila Prell Sonenshine said the photographer was guilty of sex discrimination because his decision was determined by the sex of Engel’s partner. Although the policy would have applied equally to an all-female couple, Sonenshine said, “equal application of a discriminatory practice makes it no less violative of the law.”

The exclusion was not justified by Worthington’s beliefs or financial concerns, Sonenshine said.