by Douglas Warner*


This Comment will survey the popular and largely unsupportable beliefs about homosexuality, which result in the societal oppression of gay people. The law’s reflection of this cultural homophobia has been instrumental in that oppression. In light of the homophobia in society and its consequences in the law, the GLSA court’s approach was necessary, its results consistent with contemporary knowledge and with fundamental principles of a just society. The purpose of this Comment is to demonstrate why that is so and to speculate on the decision’s implications for the gay rights movement, for gay people, and not least of all, for the society.

Recommended Citation:

Douglas Warner, Homophobia, “Manifest Homosexuals” and Political Activity:
A New Approach to Gay Rights and the “Issue” of Homosexuality, 11 Golden Gate
U. L. Rev. (1981). http://digitalcommons.law.ggu.edu/ggulrev/vol11/iss2/6

*Second Year Student, University of California, Berkeley (Boalt Hall). The author wishes to thank Professor Herma Hill Kay for criticism and advice, and John A. Martin for research assistance in the social sciences and for his invaluable insight, encouragement, and support.

This is a digitized version of the pdf available here. Part of the Civil Rights and Discrimination Commons. Golden Gate University Law Review, Volume 11, Issue 2, Article 6.


In Gay Law Students Association v. Pacific Telephone & Telegraph, Inc. 24 Cal. 3d 458, 595 P.2d 592, 156 Cal. Rptr. 14 (1979). the California Supreme Court held that homosexual employees of a privately-owned public utility could sue to challenge the company’s policy of arbitrary employment discrimination against homosexual ld. at 466-67, 595 P.2d at 597, 156 Cal. Rptr. at 19. The decision has broader implications and is of greater significance than may appear from its subject matter and its procedural The case was before the court on an appeal from a judgment of dismissal, sustaining defendant P T & T’s demurrer and denying plaintiffs’ request for mandate and ‘ declaratory relief against defendant Fair Employment Practices Commission (FEPC). Id. Thus the court was not presented with disputed factual issues or questions of proof. The decision was based solely on the allegations contained in the pleadings.

The court in GLSA explicitly recognized the legitimacy of the gay rights movement’s challenges to the social and legal oppression of homosexuality. The conclusion that “manifest homosexuals” who “make an issue of their homosexuality” are engaged in political activity and are protected from arbitrary employment discrimination is a provocative reversal of the traditional judicial approach to the issues raised by the gay rights movement. The court not only agreed that gay people deserve the same treatment in the law and in society as other citizens, but forthrightly extended legal protection to gay people’s efforts to achieve that result.

This Comment will survey the popular and largely unsupportable beliefs about homosexuality, which result in the societal oppression of gay people. The law’s reflection of this cultural homophobia has been instrumental in that oppression. In light of the homophobia in society and its consequences in the law, the GLSA court’s approach was necessary, its results consistent with contemporary knowledge and with fundamental principles of a just society. The purpose of this Comment is to demonstrate why that is so and to speculate on the decision’s implications for the gay rights movement, for gay people, and not least of all, for the society.


This Comment takes the position that “homosexual” is descriptive only of sexual orientation, preference, or behavior, and that it is inappropriate to categorize or define individuals or a class solely on the basis of sexuality. Consequently, “homosexual” is as an adjective-homosexual teachers, homosexual persons, homosexual acts-to refer to the sexual component of those persons and their See Katchadourin & Martin, Analysis of Human Sexual Behavior, in HUMAN SEXUALITY 38-39 (H. Katchadourin ed. 1979) [hereinafter cited as HUMAN SEXUALITY] (citing A. KINSEY, W. POMEROY, & C. MARTIN, SEXUAL BEHAVIOR IN THE HUMAN MALE (1948) [hereinafter cited as KINSEY, MALE]).

Furthermore, the word “homosexual” is laden with largely negative historical connotations. Thus “homosexual” is used chiefly where quoted sources use it, and in discussion of the historical and more abstract legal, moral, and social issues raised by homosexuality.

The term “manifest homosexual” appears in the GLSA opinion without a precise textual 24 Cal. 3d at 488, 595 P.2d at 610-11, 156 Cal. Rptr. at 32-33. See text accompanying note 26 infra. This Comment uses “manifest homosexual” as a term of art to refer to its context in the GLSA opinion. A pervasive theme in what follows will be to suggest a meaning for the term, and so to appreciate both the vagueness and the potential of its use in GLSA. Initially, the presumption is that “manifest homosexual” is properly interchangeable with “gay person.”

“Gay” is used with the meanings and implications it has acquired in the context of the “gay rights movement” of recent years. Whatever its It is not altogether clear how the word “gay” came to be synonymous with the word “homosexual.” See Rivera, Our Straight-Laced Judges: ‘The Legal Position of Homosexual Persons in the United States, 30 HASTINGS L.J. 799, 802 n.18 (1979) (quoting a passage from the writings of Gertrude Stein). For a discussion of the connotations of the word “gay”-a “healthy homosexual person’s” acceptance of homosexuality as natural and not requiring a defense-see G. WEINBERG, SOCIETY AND THE HEALTHY HOMOSEXUAL 82-88 (1973). “gay” has come to represent a self-proclaimed and proudly-assumed identity as a “homosexual person.” It connotes not only a self-identity, but a sense of community with others who have accepted and learned to value their homosexuality. In the context of “gay rights” and “gay liberation,” the word further connotes some degree of challenge and opposition to the dominant “heterosexual” or “straight” culture and its oppression of homosexuality.

Homosexual individuals who recognize their homosexual desires, who to some degree accept and act on them, but who do not reveal their sexual orientation publicly are referred to as M. WEINBERG & C. WILLIAMS, MALE HOMOSEXUALS: THEIR PROBLEMS AND ADAPTATIONS 177 (1977). (as heterosexual), and are said to live “in the closet”. The process of fully accepting one’s homosexuality and publicly acknowledging it is “coming out of the Gay Law Students Ass’n v. Pacific Tel. & Tel., 24 Cal. 3d at 488, 595 P.2d at 610, 156 Cal. Rptr. at 32; see also OUT OF THE CLOSETS, INTO THE STREETS: VOICES OF GAY LmERATION 6-34 (K. Jay & A. Young eds. 1972) [hereinafter cited as OUT OF THE CLOSETS]. See text accompanying notes 214-55 infra. Life “outside the closet” has been described as “being known WEINBERG & WILLIAMS, supra note 7, at 177. In general, this Comment uses “gay” to describe individuals who have “come out of the closet,” and “homosexual” to refer to those who either may not recognize or accept their sexual orientation, or who have consciously chosen, for a variety of reasons, to camouflage it.

“Heterosexual” and “straight” are used to connote, respectively, non-homosexual and non-gay. “Homophobia” refers to the characteristics of persons or cultures which reflect the complex inter-weavings of myths, stereotypes, history, fear, guilt, shame and ignorance, and which result in the heterosexual majority’s discomfort with and oppression of the homosexual minority.

“Lesbian” generally refers to a gay Rivera, supra note 6, at 802 n.16. See also D. WOLF, THE LESBIAN COMMUNITY 25 (1979). “lesbians and gay men” is a preferred expression for referring to the community of openly-identified gay people who, with all their diversity, have encountered the variety of inequities and prejudices of an anti-homosexual society, who have in various ways survived and surmounted those obstacles, and who now pose challenges to their oppression and alternatives for a future society.


In June, 1975, four individuals and two gay rights organizations filed a class action suit against Pacific Telephone and Also named as defendants were the State Fair Employment Practice Commission (FEPC) and various of its officials. Plaintiffs sought to compel the FEPC, pursuant to its alleged statutory mandate, to receive and consider claims of employment discrimination against homosexual persons by P T & T and other employers. Gay Law Students Ass’n v. Pacific Tel. & Tel., Inc., 24 Cal. 3d at 464,595 P.2d at 595,156 Cal. Rptr. at 1718. The court held that California’s Fair Employment Practice Act, in CAL. LAB. CODE § 1420(a) (West 1971) did not prohibit discrimination on the basis of sexual orientation. The protected categories included “race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex …” The court held that the plaintiffs’ arguments that the FEPA bars discrimination against homosexual persons, either on the theory that the Act prohibits all forms of arbitrary discrimination or on the theory that discrimination against homosexual persons is “sex discrimination” within the meaning of the Act, were not viable. Id. at 489-90, 595 P.2d at 612-13, 156 Cal. Rptr. at 33-34. Thus the court sustained the trial court’s denial of plaintiffs’ request for a writ of mandate against the FEPC. Id. alleging illegal discriminatory employment practices against homosexual persons. Pacific Telephone had rejected one individual’s application for employment because of his homosexuality, and anti-homosexual harassment had caused another individual to leave his job at PT&T. Members of two organizations active in promoting equal rights for gay people-the Society for Individual Rights (S.I.R.) and the Gay Law Students Association [G.L.S.A.]-had sought and been denied employment with PT&T, or would seek employment in the future and would be adversely affected by PT&T’s policy. The complaint alleged that PT&T’s “articulated policy of excluding homosexuals from employment opportunities” was arbitrary and illegal, and specifically charged PT&T with a policy of discrimination against “manifest” Id. at 464-66, 595 P.2d at 595-97, 156 Cal. Rptr. at 17-19.

Plaintiffs sought declaratory and injunctive relief to prohibit PT&T’s discriminatory hiring practices and monetary damages to compensate victims of PT&T’s discrimination. PT&T demurred, claiming that the complaint failed to state a cause of action. The trial court sustained the demurrer; the court of appeal Id.

The California Supreme Court reversed the judgment sustaining the demurrer. Examining the sufficiency of the allegations of plaintiffs’ Id. the court found that plaintiffs had stated three causes of action against PT&T: [1] the California Constitution’s equal protection clause barred PT&T from engaging in arbitrary employment The court’s initial premise was that the state and federal equal protection clauses prohibited employment discrimination by the state or any governmental agency. Homosexual persons as a class were protected by this guarantee equally with other members of the society. Id. at 467, 595 P.2d at 597, 156 Cal. Rptr. at 19. In light of traditional attitudes toward homosexuality, this holding is significant; however, the court had not yet resolved the issue before it, i.e., whether the constitutional equal protection guarantee prohibits PT&T, a privately owned public utility, from arbitrary discrimination. The court concluded that the arbitrary exclusion of a class of qualified individuals from equal employment opportunities by a state-protected and state-regulated public utility did violate equal protection. Id. at 469,595 P.2d at 599,156 Cal. Rptr. at 21. California’s regulatory scheme, as set out in the Public Utilities Code and in the CAL. CaNST. art. XIII, §§ 1-9, makes a public utility “in many respects more akin to a governmental entity than a purely private employer.” Id. The fundamental importance of an individual’s freedom of opportunity to work and earn a living, considerations peculiar to the quasi-monopolistic nature of the utility, as well as the extensive regulation by the state, served to make the discrimination by a state-protected public utility like PT & T untenable. Id. at 469-70, 595 P.2d at 599-600, 156 Cal. Rptr. at 21-22. The court noted that diverse sections of the Public Utilities Code regulated prices, service standards, account and recordkeeping, issuance of stocks and bonds, and, moreover, had endowed public utilities like P T & T with government-like powers such as eminent domain. The court thought that rejection from employment by a public utility like P T & T would leave an individual no option for employment in certain job areas. The quasimonopolistic nature of the utility eliminated the “inherent, if limited, check which the free market system places on employment discrimination,” and the general public is forced by its necessary patronage to support a utility’s discriminatory policies. Id. at 471, 595 P.2d at 600, 156 Cal. Rptr. at 22. Because its quasi-monopolistic authority over employment opportunities is derived directly from a state-granted exclusive franchise, a public utility’s discriminatory employment practices are particularly pernicious. Id. One commentator has sharply criticized the court’s reasoning. Note, Gay Law Students Association v. Pacific Telephone & Telegraph Co.: Constitutional and Statutory Restraints on Employment Discrimination Against Homosexuals by Public Utilities, 68 CALIF. L. REV. 680 (1980) [hereinafter cited as GLSA Note]. Specifically, the court’s suggestion that PT & T’s state-protected monopoly over the telecommunications industry equates with a monopoly over employment opportunities is attacked as simply wrong. Of PT & T’s more than 90,000 employees, the vast majority perform jobs which are available in many other industries besides that which PT & T monopolizes. Id. at 696-97, especially at note 87. The reasoning that P T & T’s monopoly leaves consumers no choice but to support its discriminatory employment policies seems sounder. The court further relied on federal decisions which have found state action by private entities such as labor unions. A private entity may not use state-granted monopoly power over employment opportunities to violate constitutional rights any more than may the state. Gay Law Students Ass’n v. Pacific Tel. & Tel., Inc., 24 Cal. 3d at 472-74,595 P.2d at 600-602, 156 Cal. Rptr. at 22-24. The court reasoned that the equal protection guarantee against “second class citizenship” protects against employment discrimination “by the invidious practice of a state-protected employer no less than when it is implemented by a state-protected union.” Id. at 474, 595 P.2d at 602, 156 Cal. Rptr. at 24. Plaintiff’s allegations of PT & T’s policy of arbitrary discrimination against homosexual employees and applicants had therefore stated a cause of action, and the judgment sustaining P.T. & To’s demurrer was reversed. [2] California Public Utilities Code section 453 subdivision (a) was held to prohibit employment discrimination by a public The court reasoned that a number of considerations-common law restrictions on monopoly power, the nature and scope of the state’s regulation of public utilities, and the state’s grant to the utility of a virtual monopoly in its realm-subjected P T & T to obligations not imposed on other private entities. The court recognized that “a public utility, such as PT & T, undoubtedly constitutes a paradigm example of an enterprise ‘affected with the public interest.’ “ 24 Cal. 3d at 476, 595 P.2d at 603, 156 Cal. Rptr. at 25. Among these obligations is Public Utilities Code section 453(a), drafted by the legislature to prohibit discrimination with respect to rates, charges, service, facilities or in any other respect. The statute has been interpreted to proscribe only unjust or unreasonable differential treatment. The court held, over strong arguments by P T & T and a dissent by Justice Richardson [Id. at 493, 496-500, 595 P.2d at 615-17,156 Cal. Rptr. at 3739], that this prohibition applied not merely to “consumer-directed aspects of public utility operations” but to discriminatory employment practices as well. The court reasoned that the language of section 453(a) prohibiting discrimination “in any other respect” could fairly be interpreted to include employment practices. Examining the legislative history of the statute, the court found further support for its conclusion that section 453(a) was intended to forbid more than rate and service discrimination. The constitutional considerations of the court’s earlier analysis also supported this construction of section 453(a)’s broad language. Finally, the court found support for its holding in the common law doctrines restricting monopolistic power which underlie section 453(a)’s prohibition of discrimination. Relying principally on the California decision in James v. Marinship Corp., 25 Cal. 2d 721, 155 P.2d 329 (1944), and its progeny, the court saw no difficulty in interpreting section 453(a) to prohibit arbitrary employment discrimination. The court left open the question whether the pre-Marinship common law doctrines and their post-Marinship evolution would themselves prohibit a public utility from engaging in employment discrimination. The court read section 453(a) as codifying the common law doctrine prohibiting quasi-public entities, i.e., those “affected with the public interest” from engaging in arbitrary discrimination. 24 Cal. 3d at 483-84, 595 P.2d at 607-08, 156 Cal. Rptr. at 2930. Furthermore, the common law Marinship doctrine restricting discriminatory practices by monopolistic quasi-public entities was broad enough to reach employment discrimination against homosexual persons. Id. As a public utility with a state-protected monopoly, PT & T was unable to claim the common law privilege of private employers to hire and fire at will unless restricted by statute. Under its interpretation of section 453(a), the court held that plaintiffs’ complaint had stated a cause of action. and [3] the complaint established a cause of action under California Labor Code sections 1101 and CAL. LAB. CODE § 1101 (West 1971) provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics … (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Similarly, section 1102 states: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” 24 Cal. 3d at 487,595 P.2d at 610, 156 Cal. Rptr. at 32. The court stated: Although sections 1101 and 1102 refer only to “employees,” identical terminology in the federal Labor Management Relations Act has been held to protect applicants for employment as well as on the job employees. We cannot view the statutes as permitting employers to hire only members of the Republican Party, but forbidding them from firing members of the Democratic Party. Such an anomalous interpretation of these statutes would allow employers to thwart the legislative purpose of protecting citizens by merely advancing their discriminatory practices to an earlier stage in the employee-employer relations. “Employers cannot be permitted to evade the statutory objectives of [a] statute by indirection.” Id. at n.16 (citations omitted) (emphasis in original). which prohibit employment policies that interfere with employees’ “political activity.” While recognizing the existence of three causes of action for gay employees subjected to arbitrary employment discrimination by a public utility, the opinion’s special significance lies in its Labor Code holding.

Labor Code sections 1101 and 1102 were enacted to guard against employers’ use of their economic power to interfere with “the fundamental right of employees in general to engage in political Id. at 487, 595 P.2d at 610, 156 Cal. Rptr. at 32. Section 1101 proscribes employment policies which “control or direct the political activities or affiliations” of employees. Section 1102 bars employers. from interfering with employees’ rights to “follow or refrain from … following any particular course or line of political action or political activity.” Little case law or critical commentary on these statutes Note, California’s Controls on Employer Abuse of Employee Political Rights, 22 STAN. L. REV. 1015, 1020 (1970) [hereinafter cited as California’s Controls]. The earliest and fullest interpretation of these provisions appeared in Lockheed Aircraft Corp. v Superior 28 Cal. 2d 481, 171 P.2d 21 (1948). where the court stated that the words “politics” and “political” implied “orderly conduct of government, not Id. at 485, 171 P.2d at 25. In intervening years, the Supreme Court has recognized the political character of activities such as participation in NAACP v. Button, 371 U.S. 415, 429 (1963). the wearing of symbolic Tinker v. Des Moines School Dist., 393 U.S. 503 (1969). and the association with others for the advancement of beliefs and NAACP v. Alabama, 357 U.S. 449 (1958). In light of these precedents, the GLSA court thought that the statutes could not be “narrowly confined to partisan Id. at 485, 171 P.2d at 25.S The court continued:

Measured by these standards, the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity. Indeed the subject of the rights of homosexuals incites heated political debate today, and the “gay liberation movement” encourages its homosexual members to attempt to convince other members of society that homosexuals should be accorded the same fundamental rights as heterosexuals. The aims of the struggle for homosexual rights, and the tactics employed, bear a ·close analogy to the continuing struggle for civil rights waged by blacks, women, and other minorities.

A principal barrier to homosexual equality is the common feeling that homosexuality is an affliction which the homosexual worker must conceal from his employer and his fellow workers. Consequently one important aspect of the struggle for equal rights is to induce individuals to “come out of the closet,” acknowledge their sexual preferences, and to associate with others in working for equal rights.

In light of this factor in the movement for homosexual rights, the allegations of plaintiffs’ complaint assume a special significance. Plaintiffs allege that PT&T discriminates against “manifest” homosexuals and against persons who make “an issue of their homosexuality.” The complaint asserts also that PT&T will not hire anyone referred to them by plaintiff Society for Individual Rights, an organization active in promoting the rights of homosexuals to equal employment opportunities. These allegations can reasonably be construed as charging that PT&T discriminates in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations. So construed, the allegations charge that PT&T has adopted a “policy . . . tending to control or direct the political activities or affiliations of employees” in violation of section 1101, and has “attempt[ed] to coerce or influence … employees … to … refrain from adopting [a] particular course or line of political. . . activity” in violation of section Id. at 488, 595 P.2d at 610-11, 156 Cal. Rptr. at 32-33.

The Labor Code holding is provocative and potentially far reaching for numerous reasons. Plaintiffs had not briefed or argued the Labor Code cause of Id. at 500-01, 595 P.2d at 618, 156 Cal. Rptr. at 40 (Richardson, J., dissenting). Whatever his motives, whatever his appreciation of its consequences, Justice Tobriner’s analysis represents another example of judicial initiative in using the law to address controversial and evolving issues in contemporary For a discussion of Justice Tobriner’s role in recognizing and shaping other areas of contemporary social change, see Willemsen, Justice Tobriner and the Tolerance of Evolving Lifestyles: Adapting the Law to Social Change, 29 HASTINGS L.J. 73 (1977).

As recognized by commentators and observers in the gay rights movement, the Labor Code holding has practical consequences beyond its prohibition of a public utility’s discriminatory employment See, e.g., 5 SEX. L. REP. 41 (1979). It is not difficult to perceive the importance of the statutory prohibition of arbitrary discrimination against manifest homosexuals in private Sections 1101 and 1102 of the Labor Code apply to all private employers in the state. Section 1100, enacted as part of the codification in 1937, was derived from the original enactment, 1915 Cal. Stats., ch. 38, § 1, and restricted application of these sections to entities who regularly employed 20 or more employees. Section 1100 was repealed by 1945 Cal. Stats. ch. 1141, § 1. See California’s Controls, supra note 19, at 1028. After years of unsuccessful struggle for effective, large-scale statutory protection from majoritarian anti-gay prejudice and discrimination, the gay rights movement was justified in receiving the GLBA decision with a sense of appreciation and accomplishment.

Justice Tobriner’s opinion represents one of the first signs of judicial awareness of the gay rights Earlier cases that at least implicitly recognize the social and political controversy surrounding gay rights include Acanfora v. Montgomery County Bd. of Educ., 491 F.2d 498 (4th Cir.), cert. denied, 419 U.S. 836 (1974) [discussed at notes 330-337 infra], Gay Students Organization of Univ. of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974), and Aumiller v. University of Delaware, 434 F. Supp. 1273 (D. Del. 1977) [discussed at notes 338-344 infra]. It may be the first published opinion acknowledging the legitimacy, the history, and the social impact of the gay rights movement. By comparing the gay rights movement to the black civil rights and women’s liberation movements, the court recognized that the struggles for equal protection in the law and for an end to oppression in the society are intimately and inseparably See text accompanying note 26 supra. Implicit is the recognition that the social prejudices toward homosexuality and the legal oppression of gay people feed on and reinforce each other.

The traditional societal attitudes toward homosexuality have reflected beliefs based on myths, erroneous stereotypes, and See text accompanying notes 57-145 infra. that homosexuality is immoral; that it is evidence of psychological deviancy and emotional instability; and that homosexuality is somehow dangerous and abhorrent to a well-ordered society. In a society holding such views, the plight of gay people has been predictably precarious. All too often, the societal oppression of homosexuality has been legally sanctioned and the punishment legally inflicted. Too often, and with questionable legal, moral, and rational R. DWORKIN, TAKING RIGHTS SERIOUSLY 240 (1977); see also Richards, Sexual Autonomy and the Constitutional Right of Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979); Comment, An Analysis of Rationales in Homosexual Public Employment Cases, 23 S.D.L. REV. 338 (1978) [hereinafter cited as Analysis of Rationales]. courts have reflected the biases and prejudices of the society and viewed gay people as deserving their social and legal For example, Boutilier v. Immigration and Naturalization Serv., 387 U.S. 118 (1967) (deportation of homosexual alien upheld because homosexuality was “psychopathic personality”; see note 115 infra); Schlegel v. United States, 416 F.2d 1372 (Ct. CI. 1969) (dismissal from civilian position with the U.S. Army because of the immorality of employee’s homosexual acts); Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff’d mem., 425 U.S. 901, rehearing denied, 425 U.S. 985 (1976) (upholding Virginia’s criminal sodomy law as not violative of equal protection, due process, or the right of privacy; see note 153 infra); see generally Rivera, note 6 supra.

Many gay people have internalized the societal attitudes, resulting in guilt, self-loathing, and a tendency to conform to the expectations of the See text accompanying notes 195-214 infra. Most have hidden or denied their homosexuality, living their lives in the closet, assuming an external identity which allows them to pass in the straight WEINBERG & WILLIAMS, supra note 7, at 177. Those individuals who have openly acknowledged their homosexuality, or who have refused or been unable to hide it, have encountered the full fury and opprobrium of an outraged See text accompanying notes 258-345 infra. For an account of the hysteria surrounding revelations of homosexual behavior and the complex ingredients of a “public scandal” in a small city in the 1950’s, see J. GERASSI, THE Boys OF BOISE (1966); see generally discussion in C. TRIPP, THE HOMOSEXUAL MATRIX, 202-42 (1975); see especially id. at 202-07 for a brief account of the “Boise Affair.”

The modern gay rights movement has developed in the context of this social oppression of gay people, and challenges the attitudes toward homosexuality underlying that See text accompanying notes 215-257 infra. The gay rights movement seeks to achieve a more realistic understanding of homosexuality and a greater respect for individual diversity and freedom by working on many fronts:

The California Supreme Court set the stage for its Labor Code holding by acknowledging the existence of the gay rights movement, and by recognizing the personal and social implications of gay people coming out of the closet and challenging the societal oppression of homosexuality.

The Labor Code holding recognized that the gay rights struggle has precipitated, and is the subject of, controversial political See text accompanying note 26 supra. See, e.g., Leo, Homosexuality: Tolerance vs. Approval, TIME, Jan. 8, 1979, at 43. Gay rights activists, and other openly-identified gay people who encounter society’s homophobia, who challenge anti-homosexual discrimination, or who otherwise challenge the traditional societal prejudices toward homosexuality, are engaged in a form of political activity. The court was imprecise in its definition of the political aspects of homosexuality. There seems to be no pretense that homosexuality is inherently No one proposes that “sex,” abstractly and inherently, is “political”; however, social and cultural attitudes can give political meaning and consequences to sexuality. See text accompanying notes 116-145, 195-251 infra; Trupp, supra note 38, at 202-42. “When highlighted as an issue of social danger or moral concern” and in several other ways, “homosexuality can come to be politically significant.” ld. at 202. Eschewing its own value judgments on homosexuality (in a decidedly non-traditional judicial Dressler, Judicial Homophobia: Gay Rights Biggest Roadblock, 5 CIV. Lm. REV. 19 (Jan.-Feb. 1979); see text accompanying notes 258-345 infra; see generally Rivera, note 6 supra.), the court recognized that the subject of homosexuality-the behavior, the etiology, the definitions, the passions aroused, the controversy, the evidence-is exceedingly complex. In addition to everything else thought, believed, or feared about homosexuality, one component of its reality in the last third of the twentieth century is inescapably political. Manifest homosexuals who associate with others to work for equal rights and who make an issue of their homosexuality are engaged in political Gay Law Students Ass’n v. Pacific Tel. & Tel., Inc., 24 Cal. 3d at 488, 595 P.2d at 610-11, 156 Cal. Rptr. at 32-33.

This conclusion is consistent with one of the central tenets of the modern gay liberation movement. Coming out as a gay person in a hostile and oppressive straight society is necessary in order to address and to eliminate oppression. In addition to the significant personal consequences, coming out is inherently and inescapably a political See text accompanying notes 215-257 infra.

Finally, and most important, the GLBA court’s extension of legal protection from employment discrimination to out-of-the-closet gay people (manifest homosexuals who make an issue of their homosexuality) represents an abrupt and radical departure from the traditional judicial attitudes toward homosexuality. In effect, the Labor Code holding reverses one of the most common and most pernicious judicial approaches to the subject of homosexuality, and in particular to the claims for equal protection in the law for openly-identified gay people.

Courts have traditionally manifested intolerant attitudes toward homosexuality per se, reflecting the myths, prejudices, and fears of the society. In any legal context where homosexuality has become an issue, these attitudes have resulted in the denial of legal rights and legal protection to homosexual See text accompanying notes 146-194 infra. Yet some courts have rejected unsupportable societal attitudes toward homosexuality as insufficient legal justification for oppression. Disclaiming any prejudice toward homosexuality per se, these relatively progressive courts have insisted that an individual’s homosexuality may justify the denial of legal rights only if it is shown that, in the specific context, homosexuality has some rational connection to a harm or detriment claimed to This so-called “rational nexus” standard was first articulated in Norton v. Macy. 417 F.2d 1161 (D.C. Cir. 1969); see text accompanying notes 172-180 infra.

With remarkable consistency, the courts adopting this approach in cases involving manifest or openly-identified gay people have concluded that an individual’s open assertion of homosexuality, or making an issue of homosexuality, does constitute sufficient justification for imposing legal sanctions. This has occurred most noticeably in cases involving the dismissal from public employment of gay activists or publicly-known gay See, e.g., cases discussed at notes 258-345 infra. Homosexuality per se, homosexual status, and even specific homosexual acts were not the bases for dismissal. Rather, media attention, “flaunting behavior,” assertive challenges to homosexual stereotypes and societal oppression, or the mere open acknowledgment that one was gay justified dismissal. The typical rationales are [1] that such behavior is contrary to accepted standards of For example, Gaylord v. Tacoma School Dist. No. 10,88 Wash. 2d 286,559 P.2d 1340 (1977), cert. denied, 434 U.S. 879 (1977). For a discussion of Gaylord, see text accompanying notes 319-329 infra. [2] that proximity to such individuals offends co-workers or the For example, Singer v. United States Civil Servo Comm’n, 530 F.2d 247 (9th Cir. 1976), vacated, 429 U.S. 1034 (1977). For a discussion of Singer, see text accompanying notes 286-297 infra. [3] that an avowed gay person cannot be a proper role For example, Safransky v. State Personnel Bd., 62 Wis, 2d 464, 215 N.W.2d 379 (1979). For a discussion of Safransky, see text accompanying notes 311-318 infra. or, more generally, [4] that while a closeted homosexual person may be tolerable, publicly leading a homosexual life-style will somehow impair an employee’s ability to perform a job and adversely affect the employment For example, McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971). For a discussion of McConnell, see text accompanying notes 276-285 infra.

In GLSA, the court made ‘no mention of these concerns. Also absent is any reference to the immorality, the deviancy, the emotional and psychological instability traditionally associated with homosexuality. Any allusion to the social abhorrence of homosexuality neatly reversed the traditional significance of that factor. Under its holding, being a manifest homosexual, making an issue of homosexuality, associating with other gay people, no longer justifies legal oppression, but requires legal protection.

The propriety of the court’s Labor Code holding has been questioned on the grounds of the “significant complications” it may create for future employment GLSA Note, supra note 15, at 712-13. This criticism is superficially appealing, but is valid only if one discounts or ignores the context in which GLSA arose. Legal commentators have long recognized the impropriety and irrationality of the discrimination traditionally suffered by homosexual employees, and the insufficiency and injustice of the legal rationales upholding such discriminatory For example, Rivera, supra note 6, at 805-74. See also Analysis of Rationales: supra note 34; Comment, Out of the Closet, Out of a Job: Due Process in Teacher Disqualification, 6 HASTINGS CONST. L.Q. 663 (1979) [hereinafter cited as Out of the Closet, Out of a Job]; Kovarsky, Fair Employment for the Homosexual, 1971 WASH. U.L.Q. 527; SiniscaIco, Homosexual Discrimination in Employment, 16 SANTA CLARA L. REV. 495 (1976); Comment, The Homosexual’s Legal Dilemma, 27 ARK. L. REV. 687 (1973); Note, Government Created Employment Disabilities of the Homosexual, 82 HARV. L. REV. 1738 (1969). In recent years, gay rights activists have viewed the achievement of legal protection from employment discrimination as a cornerstone of their struggle against the oppression of gay See text accompanying note 26 supra. The National Gay Task Force (NGTF) is a national gay civil rights organization formed in 1973. In addition to lobbying for legislation protecting gay persons from employment discrimination, groups like the NGTF have negotiated with large private employers to obtain pledges of nondiscrimination. Employers such as AT&T, IBM, CBS, NBC, Gulf & Western, Mobil, Xerox, and many others have stated that they do not discriminate on the basis of sexual orientation. NGTF, Gay Civil Rights Support Statements and Resolutions Packet Volume 1 (mimeographed insert) (unpublished document available from NGTF, Room 506, 80 Fifth Avenue, New York, New York, 10011). In acknowledging the political significance and the social implications of gay people’s decisions to come out-to make an issue of their homosexuality-the court quite properly confronted the reality and the irrationality of the oppression of homosexuality. In extending the Labor Code’s protection against employment discrimination to manifest homosexuals, the court was addressing the significant problems presently existing in employment relations.

The broad and imprecise language of the Labor Code holding has been criticized for creating uncertainty in subsequent GLSA Note, supra note 15 at 711-14. The novelty of the court’s approach to homosexuality and to the claims of the gay rights movement and the procedural posture of the case demand flexibility for interpretation and application. Justice Tobriner’s opinion should be viewed as a long overdue correction of past judicial insensitivity, intolerance, and unthinking prejudice against homosexuality.

This Comment accepts the propriety, the validity, and the necessity of the Labor Code holding. This Comment does not explore what new scope, if any, the Labor Code holding gives to political activity. The discussion proceeds from the assumption that the court’s recognition of the gay rights movement has not distorted the generally accepted meaning of the word political. Nor does this Comment seek to specify which activities of manifest homosexuals are to be considered making an issue of their homosexuality and therefore political and The Labor Code holding can fairly be read to say that coming out is a process and a phenomenon laden with political implications. See text accompanying notes 40-43 supra. The diversity of gay people and the myriad social contexts in which they live suggest practically limitless ways of coming out and of being out-i.e., being a manifest homosexual who makes an issue of homosexuality. See text accompanying notes 196-257 infra. The cultural, behavioral, and personality characteristics which signify the possibilities and degrees of coming out are also nearly limitless. The most obviously and traditionally political activities include activism in mainstream politics and gay-oriented political associations (viz., seventy-one openly gay delegates and alternates to the 1980 Democratic National Convention, or membership in groups such as San Francisco’s Harvey Milk Gay Democratic Club, Alice B. Toklas Democratic Club, Concerned Republicans for Individual Rights, or the National Gay Task Force; see, e.g., Zemel, Delegates Take to the Floor of Demo Convention, The Sentinel, Aug. 6, 1980, at 7, col. 1 (The Sentinel is a locally distributed biweekly San Francisco paper covering news and concerns of the gay community; its address is 1042 Howard St., San Francisco, Ca. 94103}) as well as wearing a “Gay and Proud” or “Dyke” button (see, e.g., WOLF, supra note 10, at 86) or participating in a Gay Freedom Day Parade or a candlelight march in honor of an assassinated gay political leader such as San Francisco’s Harvey Milk (see, e.g., Hinkle, The Dan White Story, The Sentinel, Nov. 30, 1979, at 1721; Shilts, Cleve Jones Rising, CHRISTOPHER STREET, Oct.I Nov. 1980, at 14-22). But coming out in a straight society need not take the form of traditional political activism to be seen as a political challenge to the irrationality and injustice of homosexual oppression. In the face of “dyke” jokes at the office, to tell one’s co-workers, “I’m a lesbian and offended” is political activity; in the face of rigidly defined gender roles, for a man to wear a diamond earring or bring a male lover to an office party is political activity. Wearing a red kerchief in a hip pocket may be innocuously apolitical for an Iowa farmer, but may connote a distinct sexual preference for a man in a gay bar on Saturday night. To examine the political implications of the myriad indicia of coming out, of being a manifest homosexual, is not the intent and is beyond the scope of this Comment. The proposition is rather that the Labor Code holding gives protection from employment discrimination to out-of-the-closet gay people in a society that irrationally condemns homosexuality and “makes an issue” for those gay people who, by coming out, seek to be judged on their individual merits and to foster a greater tolerance for human diversity and a greater respect for personal autonomy.

The broad outline of the argument is as follows: Human sexuality is little understood, provokes great anxiety, and is simultaneously devalued and over-emphasized in this culture. The dread and oppression of homosexuality is part of this cultural concern with sexuality. The fears and myths and prejudice which constitute the society’s homophobia are in fact unsupportable and unjustifiable. Moreover, the oppression of homosexuality denies to a significant portion of the population the opportunities to express sexual love and emotional intimacy, to achieve self respect, and to participate fully and equally in the society. Thus homophobia is not only irrational, but is at odds with principles of autonomy, liberty, and individual worth which are fundamental to an enlightened and just society. In such a homophobic society, gay people-“manifest homosexuals” who accept, value, and respect their sexuality-necessarily if not explicitly, challenge the society’s ignorance, prejudices, and injustice.

This Comment seeks to show that the California Supreme Court recognized that this is true. Appreciating the irrationality and injustice of homophobia, the significance of gay rights activism, and the impropriety of the traditional judicial approaches to the legal rights of gay people, the court quite properly saw that coming out of the closet makes an issue of homosexuality, or more accurately, that a homophobic society makes an issue of a proud and healthy sexuality. Against this background, the court stated, “manifest homosexuals” who “make an issue” of their homosexuality are engaged in political activity and deserve legal protection.