Citation 36 Cal. 4th 824, 115 P.3d 1212, 31 Cal. Rptr. 3d 565
Koebke v. Bernardo Heights etc.
Filed 8/1/05
IN THE SUPREME COURT OF CALIFORNIA
B. BIRGIT KOEBKE et al.,
Plaintiffs and Appellants,
S124179
v.
Ct.App. 4/1 D041058
BERNARDO HEIGHTS COUNTRY CLUB, )
San Diego County
Defendant and Respondent.
Super. Ct. No. GIC767256
Plaintiffs, a lesbian couple who are registered domestic partners, sued
defendant country club, to which one of them belongs, alleging that the club’s
refusal to extend to them certain benefits it extends to married members of the
club constitutes marital status discrimination under Civil Code section 51,
familiarly known as the Unruh Civil Rights Act (the Unruh Act or Act ). The club
obtained summary judgment on plaintiffs’ marital status discrimination claim and
the Court of Appeal affirmed. We granted review to determine whether the Unruh
Act prohibits discrimination based on marital status. We conclude that marital
status claims are cognizable under the Unruh Act, but, for purposes of such claims,
a distinction exists between registered domestic partners (see Fam. Code, § 297 et.
seq.) and other unmarried couples and individuals. Domestic partners registered
under the California Domestic Partner Rights and Responsibilities Act of 2003
(the Domestic Partner Act), the current version of the domestic partnership law,
are the equivalent of spouses for the purposes of the Unruh Act and a business that
extends benefits to spouses it denies to registered domestic partners engages in
1
impermissible marital status discrimination. Therefore, we reverse summary
judgment in favor of defendant to the extent plaintiffs’ claim implicates the
Domestic Partner Act.
While the Act may also protect the rights of other unmarried couples and
unmarried individuals to equal access to public accommodations under some
circumstances, distinctions drawn by businesses between married couples and
such unmarried couples and individuals that are supported by legitimate business
reasons do not constitute impermissible marital status discrimination under the
Act. Applying this principle, we reject plaintiffs’ claim that the country club’s
spousal benefit policy constituted impermissible marital status discrimination on
its face prior to the effective date of the Domestic Partner Act. As explained
below, during this period of time, the country club’s policy was supported by
legitimate business interests. In this connection, we also reject plaintiffs’
alternative claim that the policy facially violated the Unruh Act’s proscription
against sexual orientation discrimination. However, we agree with the Court of
Appeal that under the facts disclosed by the record plaintiffs may have a viable
Unruh Act claim for discriminatory application of the club’s policy.
I. FACTS
Plaintiffs B. Birgit Koebke and Kendall E. French sued defendant Bernardo
Heights County Club (BHCC) alleging, among other causes of action, that BHCC
discriminated against them on the basis of sex, sexual orientation, and marital
status in violation of the Unruh Act. BHCC obtained summary judgment and,
with respect to most of the claims, the Court of Appeal affirmed. We granted
plaintiffs’ petition for review. “Because plaintiff[s] appeal[] from an order
granting summary judgment, we must independently examine the record to
determine whether triable issues of material fact exist. [Citations.]” (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In conducting de novo review
2
“we must view the evidence in a light favorable to plaintiff[s] as the losing party
[citation], liberally construing [their] evidentiary submission while strictly
scrutinizing defendant[’s] own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff[s’] favor.” (Id. at p. 768.) We apply this standard to the
evidence submitted in connection with the motion below.
Plaintiffs are lesbians who have been in a relationship since 1993. They are
also avid golfers. Koebke is a member of BHCC, having purchased a membership
in 1987 for $18,000. BHCC’s facilities include a golf course, club house and
dining room. The purpose of BHCC is “to promote golf and recreational activities,
social activities, and maintain a country club with facilities for the entertainment
and amusement of its members and their guests.” BHCC has seven membership
categories, including “Regular” or equity members who collectively own the
club.1 Each of the 350 Regular members has an equal ownership interest in all of
the real property and other assets of BHCC, and is liable to it for capital and
operational assessments as well as dues and other charges. BHCC’s Regular
members are entitled to play golf at BHCC as often as they wish without paying
any additional fees. Plaintiff Koebke is a Regular member.
Pursuant to its bylaws, BHCC’s membership benefits in each of the seven
membership categories are also extended “to member’s [sic] legal spouse and
unmarried sons and daughters under the age of twenty-two (22) residing with
them.” Thus, Regular members may golf with their spouses and any qualifying
child on an unlimited basis and without paying additional membership or usage
fees. By contrast, other individuals with whom members wish to play are
designated as “guests” under BHCC’s Rules and Regulations. Guests are not
1 All members except Social members are entitled to all of BHCC’s privileges
and activities; Social members may participate in BHCC’s social activities but not
its golfing activities.
3
permitted to play more than six times in any one year, and no more than once
every month, and must pay a green fee each time they play at BHCC. Guests are
required to register each time they play golf and are not allowed to sign charge
slips for food at the club. The registration requirement does not apply to spouses
of members and, unlike guests, they may sign charge slips for food.
In addition to the spousal benefits granted its married members, BHCC’s
bylaws also permit a membership to be transferred upon a member’s death to his
or her surviving spouse or son or daughter without any transfer fee, provided that
the survivor is accepted for membership. By contrast, an unmarried member’s
membership, and all his or her property rights in BHCC, terminate upon that
member’s death.
According to Koebke, in 1995, after she began her relationship with
French, she asked BHCC’s Board of Directors (the Board) to permit her to
designate French as her “significant other” to enable them to golf together on the
same basis as married couples. The Board rejected the request and “decided to
continue its present policy that non-married significant others would have no
privileges at the Club.”
In August, 1998, plaintiffs executed a written “Statement of Domestic
Partnership,” in which each stated that she considered the other to be “her primary
life companion and spouse, sharing with one another the joys and difficulties
encountered during their life together.” At some point, plaintiffs also registered as
domestic partners with the state and with the city of San Diego.2
2 In a letter to BHCC’s Board of Directors in November 2000, plaintiffs stated
they had “filed domestic partnership” with the state and attached a copy of the
filing. The filing itself is not in the record. There is no information in the record
about when plaintiffs registered as domestic partners with the city of San Diego or
about the scope of the city’s domestic partner ordinance.
4
According to her deposition, in 1998, Koebke again appeared before the
Board and asked that it adopt a “significant other” policy. The matter was referred
to the Membership Committee. Koebke was informed by letter that the
“committee [was] absolutely opposed to the recognition of a ‘significant other’
and recommend[ed] against modification of the rules to provide for a ‘special
guest.’ ” The Board adopted the committee’s recommendation and rejected
Koebke’s request.
In November 2000, Koebke and French wrote a joint letter to BHCC’s
Board in which they asked the Board to extend BHCC’s spousal benefit rights to
French. In the letter, the women explained: “Our dilemma is that we cannot
legally marry to satisfy the current criteria to play as a couple at Bernardo Heights
. . . giving the true benefits of [Koebke’s] family membership. We feel that our
case is unique and isolated, in that other ‘single’ members of the club do have the
option to marry.” They stated that they considered themselves married and set
forth the various legal steps they had taken to formalize their relationship,
including “[f]il[ing] domestic partnership in the state of California that recognizes
each other as legal spouses,” and attached a copy of the filing. The Board rejected
the request in a letter to Koebke from the Board’s president, H. Gregory Meeks.
Meeks wrote: “There is no provision in the Bylaws for a non-spousal partner to
have any of the benefits of membership and the Board of Directors may not
unilaterally change the Bylaws. Mr. Monson [BHCC’s attorney] stated the
procedure for amending the Bylaws by petition and vote of the membership,
which you are free to pursue although you indicated that you do not wish to pursue
this path.” He suggested that French apply for her own membership.
In the trial court, Koebke cited instances in which, while rejecting her
requests to extend its family benefits to include French, BHCC allegedly granted
those benefits to the partners or friends of some of its heterosexual members. For
5
example, even before Michael Wexler married his wife, Joni, they were extended
family benefits. Joni Wexler told Koebke that BHCC knew she and Michael
Wexler were not married at that time. The non-golfing female partner of another
member, Jeff O’Conner, was allowed full social privileges at BHCC, and her
daughter golfed with O’Conner even though she was not O’Conner’s daughter.
O’Conner made no secret of the fact he was not married to his partner and was not
the father of her daughter. Koebke also claimed that Elizabeth Burkholder, a
professional golfer, was allowed to play with her “coach/manager/friend” without
assessing her green fees for him, an arrangement confirmed by BHCC’s minutes.
According to Koebke, another member, Larry Simon, played golf with a
nonmember neighbor who he apparently represented was his son, although BHCC
members knew they were not related. Additionally, the minor grandchildren of
members were allowed to play with members on an unlimited basis and without
fees, despite the absence of any provision in BHCC’s bylaws allowing for this.
Furthermore, BHCC allowed the adult children and grandchildren of members to
play up to 14 times a year, instead of the six specified in the bylaws, and at
reduced green fees. BHCC also allowed the Rancho Bernardo High School boys
golf team to play free of charge. Finally, according to Jeff O’Conner’s
declaration, after Koebke commenced her litigation against BHCC, BHCC’s
General Manager, Buzz Colton, told O’Conner that there were other unmarried
heterosexual couples who were allowed to play at BHCC and that Koebke had not
yet “found that out.”
In 2001, Koebke received a letter from Thomas Monson, BHCC’s attorney
and a BHCC member, that stated: “The board of directors recognizes the State of
California’s strong public policy favoring marriage and believes that BHCC
supports that policy as a family oriented organization.” Koebke claimed that this
was the first time she had ever heard BHCC express endorsement of the public
6
policy favoring marriage or assert that it was a “family-oriented organization”
defined in a way that excluded her and French. Jeff O’Conner also stated that at
no time during the interview process in which he became a member of BHCC was
he told that BHCC recognized a strong public policy favoring marriage because it
was a “family-oriented organization.” O’Conner, who was not married to his
female partner, would not have become a member of BHCC had this been
disclosed to him. In her deposition, Koebke stated that the Board’s denial of
spousal benefits to French was motivated by its fear that if it did so “it would open
the flood gates [sic]” to homosexuals and BHCC would become known as “gay
friendly,” which a member of the board communicated to her was not “a desire or
direction of the Club.”
Koebke stated that she also encountered hostility both before and after she
filed suit against BHCC from BHCC members as a result of her attempts to have
spousal benefits extended to her partner. Her sexual orientation became a subject
of speculation and discussion among BHCC members. One BHCC member, Judy
Stillman, overheard another member say that perhaps the men in his group “should
get [the plaintiffs] to put on a skit to show us how they do it with toys, and charge
an admission price, to help pay for the lawsuit.” A similar comment was
overheard by BHCC member O’Conner. Koebke said she was also told that the
only way she could utilize BHCC’s spousal benefit was to marry a man. BHCC
also required her to register French whenever she played at BHCC in a registration
book that did not exist until shortly after Koebke and French filed their lawsuit.
Additionally, Koebke became the target of what she believed were baseless
complaints at BHCC over alleged infractions of club rules, like the club’s dress
code.
Plaintiffs’ second amended complaint, which is the basis of the current
proceeding, was filed on October 12, 2001. The first cause of action alleged that
7
BHCC had discriminated against plaintiffs on the basis of sex, sexual orientation
and marital status in violation of the Unruh Act. Additional causes of action
alleged violation of the San Diego Municipal Code’s ban on sexual orientation
discrimination, discriminatory restrictions on ownership or use of real property
instruments in violation of Civil Code section 53, fraud and misrepresentation.
Plaintiffs sought damages, punitive damages and injunctive and declaratory relief.
Defendant answered and filed a motion for summary judgment or,
alternatively, summary adjudication. Defendant’s motion was granted. Without
specifically addressing plaintiffs’ claims of discrimination under either the Unruh
Act or the San Diego Municipal Code, the trial court found that “Defendant did
not provide different privileges to plaintiffs than to other unmarried couples.”
Judgment was entered in defendant’s favor.
The Court of Appeal found that plaintiffs had failed to establish an Unruh
Act violation on the basis of marital status discrimination, gender discrimination,
or sexual orientation discrimination. However, the Court of Appeal also
concluded that there was a triable issue of material fact as to whether BHCC had
discriminatorily enforced its spousal benefit policy. Therefore, the Court of
Appeal reversed the summary judgment to the extent that it rejected plaintiffs’
claim that BHCC’s bylaws were applied in a discriminatory manner but, in all
other respects, affirmed the judgment.
We granted plaintiffs’ petition for review.
II. DISCUSSION
A. Introduction
Plaintiffs contend that the Unruh Act prohibits a business from treating
married and unmarried couples unequally and, therefore, defendant is engaging in
a continuing violation of the Act by extending certain benefits to married couples
that it denies to unmarried couples. Plaintiffs seek both statutory damages and
8
injunctive relief. (Civ. Code, § 52 [setting forth damages for violation of the Act];
Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28, fn. 5 [recognizing the
availability of injunctive relief for a violation of the Act].)
For at least some of the period in which plaintiffs allege this violation has
occurred, they have been registered with the state as domestic partners. Although
plaintiffs maintain that their claim of marital status discrimination under the Unruh
Act is not dependent on their domestic partner status, their claim for injunctive
relief requires us to examine the law currently in effect. (White v. Davis (1975) 13
Cal.3d 757, 773, fn. 8.) As we explain, in the current version of the domestic
partnership law, the Legislature has made clear its intention to substantially
equalize the status of registered domestic partners and spouses. Therefore, we first
examine whether, in light of the current version of the domestic partnership law,
the Unruh Act requires businesses to treat registered domestic partners the same as
spouses. We conclude that under current law, plaintiffs must be treated the same
as spouses for purposes of the Unruh Act.
Plaintiffs maintain they are also entitled to damages, including damages for
the period prior to the effective date of the current domestic partnership law.
Therefore, it becomes necessary to determine whether BHCC’s denial of the
spousal benefit to plaintiffs constituted impermissible marital status discrimination
during this earlier period of time. We conclude that BHCC’s policy did not, on its
face, constitute either impermissible marital discrimination or sexual orientation
discrimination under the Act. But we agree with the Court of Appeal that
plaintiffs presented sufficient evidence of discriminatory application of that policy
to proceed to trial on a discriminatory application theory.
9
B. Under Unruh, Treating a Domestic Partner Registered Under the
Domestic Partner Act Differently Than a Spouse Constitutes Impermissible
Marital Status Discrimination.
Plaintiffs’ claim for injunctive relief requires us to apply the law currently
in effect. (White v. Davis, supra, 13 Cal.3d at p. 773, fn. 8 [“ ‘Relief by injunction
operates in futuro, and the right to it must be determined as of the date of decision
by an appellate court’ ”], quoting American Fruit Growers v. Parker (1943) 22
Cal.2d 513, 515.) We must determine, therefore, whether BHCC currently
violates the Unruh Act by denying plaintiffs, who are registered as domestic
partners, the same benefits it extends to married couples.
1. The Domestic Partner Act
The current version of the domestic partnership statutes, denominated by
the Legislature the California Domestic Partner Rights and Responsibilities Act of
2003 became effective January 1, 2005. (Stats. 2003, ch. 421, § 2.)3 The
Domestic Partner Act permits same-sex couples and some opposite-sex couples in
which one or both individuals are over the age of 62, who share a common
residence, to file a Declaration of Domestic Partnership with the Secretary of
State. (§ 297.)
Section 297.5 grants domestic partners “the same rights, protections, and
benefits” and imposes upon them “the same responsibilities, obligations and duties
under law, whether they derive from statutes, administrative regulations, court
rules, government policies, common law, or any other provisions or sources of
law, as are granted to and imposed upon spouses.” (§ 297.5, subd. (a).) These
rights and responsibilities are extended to current domestic partners, former
domestic partners and surviving domestic partners. (§ 297.5, subds. (a)-(c).)
3 All further statutory references, unless otherwise specified, are to the Family
Code.
10
The purpose of the Domestic Partner Act is set forth in uncodified portions
of section 297.5, in which the Legislature declares: “This act is intended to help
California move closer to fulfilling the promises of inalienable rights, liberty, and
equality contained in Sections 1 and 7 of Article 1 of the California Constitution
by providing all caring and committed couples, regardless of their gender or
sexual orientation, the opportunity to obtain essential rights, protections, and
benefits and to assume corresponding responsibilities, obligations, and duties and
to further the state’s interests in promoting stable and lasting family relationships,
and protecting Californians from the economic and social consequences of
abandonment, separation, the death of loved ones, and other life crises.” (Stats.
203, ch. 421, § 1, subd. (a).) The Legislature has found “that despite longstanding
social and economic discrimination, many lesbian, gay, and bisexual Californians
have formed lasting, committed, and caring relationships with persons of the same
sex,” and that “[e]xpanding the rights and creating responsibilities of registered
domestic partners would further California’s interests in promoting family
relationships and protecting family members during life crises, and would reduce
discrimination on the bases of sex and sexual orientation in a manner consistent
with the requirements of the California Constitution.” (Stats. 2003, ch. 421, § 1,
subd. (b).)
Section 15 of the Domestic Partner Act, furthermore, requires that the act
be “construed liberally in order to secure to eligible couples who register as
domestic partners the full range of legal rights, protections and benefits, as well as
all of the responsibilities, obligations, and duties to each other, to their children, to
third parties and to the state, as the laws of California extend to and impose upon
spouses.” (Stats. 2003, ch. 421, § 15.)
Section 297.5 effectuates the legislative intent by using the broadest terms
possible to grant to, and impose upon, registered domestic partners the same rights
11
and responsibilities as spouses in specified areas of laws whether they are current,
former or surviving domestic partners. For example, pursuant to section 297.5,
subdivision (c), a “surviving registered domestic partner, [upon] the death of the
other partner,” is granted all the same rights and is subject to all the same
responsibilities, from whatever source in the law, as those “granted to and imposed
upon a widow or a widower.” Similarly, section 297.5, subdivision (d) states:
“The rights and obligations of registered domestic partners with respect to a child
of either of them shall be the same as those of spouses. The rights and obligations
of former or surviving registered domestic partners with respect to a child of either
of them shall be the same as those of former or surviving spouses.” Subdivision
(e) requires that, “[t]o the extent that provisions of California law adopt, refer to,
or rely upon . . . federal law,” and this reliance on federal law would require
domestic partners to be treated differently than spouses, “registered domestic
partners shall be treated by California law as if federal law recognized a domestic
partnership in the same manner as California law.” (§ 297.5, subd. (e).)
With respect to discrimination, subdivision (f) provides: “Registered
domestic partners shall have the same rights regarding nondiscrimination as those
provided to spouses.” (§ 297.5, subd. (f).) Moreover, with one exception
pertaining to eligibility for long-term care plans, subdivision (h) prohibits any
public agency in California from discriminating against “any person or couple on
the ground that the person is a registered domestic partner rather than a spouse or
that the couple [consists of] registered domestic partners rather than spouses.”
(§ 297.5, subd. (h).)
It is clear from both the language of section 297.5 and the Legislature’s
explicit statements of intent that a chief goal of the Domestic Partner Act is to
equalize the status of registered domestic partners and married couples. It is in
light of this intent that we must determine whether the Unruh Act precludes
12
BHCC from granting married couples benefits it denies to persons registered as
domestic partners under the Domestic Partner Act. We conclude that the Unruh
Act does.
2. The Unruh Act
Civil Code section 51, subdivision (b) states: “All persons within the
jurisdiction of this state are free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, disability, or medical condition are
entitled to the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever.” Enacted in
1959, the Unruh Act amended an 1897 version of Civil Code section 51 that was
declarative of a common law doctrine requiring places of public accommodation
“to serve all customers on reasonable terms without discrimination and . . . to
provide the kind of product or service reasonably to be expected from their
economic role.” (In re Cox (1970) 3 Cal.3d 205, 212 (Cox).)
Seminal decisions of this court construing the scope of the Act concluded
that its protections were not confined to the enumerated categories in the statute
but that these categories were “illustrative rather than restrictive.” (Cox, supra, 3
Cal.3d at p. 216 [the Act prohibits a business from excluding a customer because
of his association with another person of unconventional appearance]; Marina
Point Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735 [the Act prohibits an apartment
owner from refusing to rent an apartment to a family with a minor child];
O’Conner v. Village Green Owners Assn. (1983) 33 Cal.3d 790 [the Act prohibits
a condominium development from restricting residence to persons over 18].) We
also concluded that in enacting the Unruh Act, the Legislature intended to ban all
forms of arbitrary discrimination in public accommodations. (Ibister v. Boys’
Club of Santa Cruz (1985) 40 Cal.3d 72, 75 [“The Act is this state’s bulwark
against arbitrary discrimination in places of public accommodation”].)
13
We revisited these conclusions in Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142 (Harris.) In the process of doing so, we created a three-
part analytic framework for determining whether a future claim of discrimination,
involving a category not enumerated in the statute or added by prior judicial
construction, should be cognizable under the Act.
Harris involved a claim by women receiving public assistance that a
landlord’s policy requiring prospective tenants to have gross monthly incomes
equal to or greater than three times the rent charged for an apartment (the
minimum income policy) constituted economic status discrimination and was
barred by the Unruh Act. The plaintiffs argued that the defendant’s policy
excluded persons who could pay the rent, but were unable to meet the minimum
income policy. They maintained they were entitled to a trial to determine whether
the policy constituted arbitrary discrimination under the Act. (Harris, supra, 52
Cal.3d at p. 1154.) We held that the Unruh Act did not include within its ambit
claims of economic status discrimination because economic status is
fundamentally different than the categories either enumerated in the Act or added
by judicial construction.
In reaching this conclusion, we affirmed the principle articulated in our
earlier decisions that the Act’s enumerated categories are illustrative, rather than
restrictive. “Beginning with Cox in 1970, the Unruh Act has been construed to
apply to several classifications not expressed in the statute. [Citations.] [¶] We
generally presume the Legislature is aware of appellate court decisions.
[Citations.] It has not taken specific action to overrule these cases. Moreover, the
Legislature has amended the Act several times in the 20-year period since Cox
[citation] was decided.” (Harris, supra, 52 Cal.3d at pp. 1155-1156.)
However, our examination of the legislative response to our prior decisions
led us to conclude that the Legislature had not acquiesced in the broad proposition
14
set forth in those decisions that the Act was intended to ban all forms of arbitrary
discrimination. “Notwithstanding our language about ‘arbitrary discrimination’
and ‘stereotypes,’ the Legislature has continued to pay close attention to the
specified categories of discrimination in the Unruh Act. . . . Thus, the Legislature’s
continued emphasis on the specified categories of discrimination in the Act
(without adding the words ‘arbitrary,’ ‘unreasonable,’ or similar language to its
provisions) reflects the continued importance of those categories in its proper
interpretation.” (Harris, supra, 52 Cal.3d at pp. 1158-1159.)
Having therefore concluded that the Unruh Act’s ban on arbitrary
discrimination was qualified by the continued importance of the enumerated
categories, we considered whether the Act could, nonetheless, be extended to
claims of economic status discrimination “in light of both the language and history
of the Act and the probable impact on its enforcement of the competing
interpretations urged on us by the parties.” (Harris, supra, 52 Cal.3d at p. 1159.)
We devised a three-part analysis to answer this question. First, in
reviewing the statutory language, we discerned an essential difference between
economic status and both the Act’s enumerated categories and those added by
judicial construction. We found that their common element was that they “involve
personal as opposed to economic characteristics – a person’s geographical origin,
physical attributes, and personal beliefs.” (Harris, supra, 52 Cal.3d at p. 1160.)
Thus, the first prong of the Harris inquiry is whether a new claim of
discrimination under the Act is based on a classification that involves personal
characteristics.
Second, we asked in Harris whether a legitimate business interest justified
the minimum income policy. We found it did. “The minimum income policy is
no different in its purpose or effect from stated price or payment terms. Like those
terms, it seeks to obtain for a business establishment the benefit of its bargain with
15
the consumer: full payment of the price. In pursuit of the object of securing
payment, a landlord has a legitimate and direct economic interest in the income
level of prospective tenants, as opposed to their sex, race, religion, or other
personal beliefs or characteristics.” (Harris, supra, 52 Cal.3d at p. 1163.)
Third, we considered the potential consequences of allowing claims for
economic status discrimination to proceed under the Unruh Act. We perceived
“two significant adverse consequences that would likely follow from plaintiffs’
proposed interpretation of the Act.” (Harris, supra, 52 Cal.3d at p. 1166.) First,
we believed it would involve courts “in a multitude of microeconomic decisions
we are ill equipped to make” regarding the reasonableness of the criteria used by
landlords to screen tenants unable to pay their rent regularly and on time
throughout the tenancy. (Ibid.) Second, permitting prospective tenants to
challenge such criteria on a case-by-case basis might induce landlords to abandon
such neutral criteria as income, applicable to all prospective tenants regardless of
their personal characteristics, and use subjective criteria that might “disguise and
thereby promote the very kinds of invidious discrimination based on race, sex and
other personal traits that the Unruh Act prohibits.” (Id. at p. 1169.) Therefore we
concluded that the minimum income policy did not violate the Act. (Ibid.)
3. Application of the Harris Analysis to Plaintiffs’ Marital Status
Discrimination Claim
Both plaintiffs and BHCC rely on the analytic framework set forth in
Harris to determine whether plaintiffs’ marital status discrimination claim is
cognizable under the Unruh Act.4 We now consider each of Harris’s three prongs
on this issue.
4 BHCC contends that because plaintiffs are domestic partners, they have not
alleged marital status discrimination under the Act. The premise of this argument
is that marital status discrimination refers only to differences in treatment of
married couples vis-à-vis unmarried individuals. We disagree. A business that
(Fn. continued on next page)
16
a. Does Marital Status Involve Personal Characteristics
As to the first prong of the Harris analysis, plaintiffs contend that marital
status involves a personal characteristic like those categories already covered by
the Unruh Act. BHCC, however, contends that marital status is nothing more than
a legal status conferred by the state that does not involve personal characteristics.
We agree with plaintiffs.
We did not define the phrase “personal characteristic” in Harris, but we
indicated that, at minimum, it encompassed both the categories enumerated in the
Act and those categories added to the Act by judicial construction. (Harris, supra,
52 Cal.3d at pp. 1160-1161.) Thus, the list would include “sex, race, color,
religion, ancestry, national origin, disability, or medical condition” (Civ. Code,
§ 51, subds. (b),(c)), and unconventional dress or appearance, family status and
sexual orientation (Harris, supra, at p. 1161) but not “financial status or
capability.” (Ibid.) What those categories have in common is not immutability,
since some are, while others are not, but that they represent traits, conditions,
decisions, or choices fundamental to a person’s identity, beliefs and self-
definition. (See id., at p. 1160 [unlike economic status, enumerated categories
involve personal characteristics like “a person’s geographical origin, physical
attributes and personal beliefs”].)
Under this standard, marital status is more like the existing categories to
which the Act applies than it is to economic status. The kinds of intimate
(fn. continued from previous page)
decides which benefits are to be extended to members of the public based on
whether they are married necessarily discriminates against both unmarried
individuals and unmarried couples. (Cf. Smith v. Fair Employment & Housing
Com. (1992) 12 Cal.4th 1143, 1156 [use of the phrase “marital status” in
prohibition against discrimination in the Fair Employment and Housing Act (Gov.
Code, § 12955, subds. (a), (b)) includes both unmarried individuals and unmarried
couples.].) Domestic partners are a subset of unmarried couples.
17
relationships a person forms, and the decision whether to formalize such
relationships implicate deeply held personal beliefs and core values. Indeed,
marriage itself is defined as “a personal relation arising out of a civil contract
between a man and a woman . . . .” (§ 300.) Similarly, the decision whether to
enter into a domestic partnership is motivated by personal values and beliefs. This
point was recognized by the Legislature in its characterization of these
relationships in the Domestic Partner Act as “lasting, committed, and caring,” and
undertaken by two individuals to “share lives together, participate in their
communities together, and [for] many [to] raise children and care for other
dependent family members together.” (Stats. 2003, ch. 421, § 1, subd. (b).)
Thus, contrary to BHCC’s argument, the decision to marry or to enter into a
domestic partnership is more than a change in the legal status of individuals who
have entered into marriage or domestic partnership. In both cases, the
consequences of the decision is the creation of a new family unit with all of its
implications in terms of personal commitment as well as legal rights and
obligations.
BHCC also relies on the analysis of Harris set forth in Beaty v. Truck Ins.
Exchange (1992) 6 Cal.App.4th 1455 (Beaty). Beaty is the only appellate decision
that has considered whether marital status discrimination is cognizable under the
Unruh Act. On the first prong issue, Beaty found that marital status, like the
economic status involved in Harris, is a category that the Unruh Act was simply
not intended to reach. As noted, in Harris we determined that economic status
was fundamentally different than the categories enumerated in the Act as a reason
to exclude it from coverage under the Act (Harris, supra, 52 Cal.3d at pp. 1161-
1162). Similarly, in Beaty, the Court of Appeal concluded that the strong public
policy favoring marriage categorically precluded recognition of marital status
18
discrimination under the Act. Since Beaty is critical to the parties’ arguments, we
discuss it at some length.
Beaty involved a male couple. The two men had lived together for 18 years
and had taken various legal steps to create a common life, including jointly
owning many of their assets, among them their residence, and naming one another
as each other’s primary beneficiary for estate and life insurance purposes. The
defendant insurer had issued them joint homeowners and automobile insurance
policies, but refused to issue them an umbrella policy for a single premium
because such policies were available only to married couples. (Beaty, supra, 6
Cal.App.4th at p. 1458.) The plaintiffs sued, alleging that the defendant’s refusal
to issue the umbrella policy constituted sexual orientation and marital status
discrimination in violation of the Unruh Act. Their action was dismissed after the
trial court sustained the defendant’s demurrer without leave to amend.
The Court of Appeal cited Harris for the proposition that “future expansion
of prohibited categories should be carefully weighed to ensure a result consistent
with legislative intent. [Citations.]” (Beaty, supra, 6 Cal.App.4th at p. 1462, fn.
omitted.) Accordingly, the court observed: “In light of Harris, we decline
plaintiffs’ invitation . . . to include ‘marital status’ as an additional category of
prohibited discrimination. There is a strong policy in this state in favor of
marriage [citations], and in the context here presented that policy would not be
furthered (and in the case of an unmarried heterosexual couple, would actually be
thwarted) by including marital status among the prohibited categories. It is for the
Legislature, not the courts, to determine whether nonmarital relationships such as
that involved in this case ‘deserve the statutory protection afforded the sanctity of
the marriage union.’ ” (Id. at pp. 1462-1463.)
Unquestionably, there is a strong public policy favoring marriage.
(Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 9.) This policy
19
serves specific interests “not based on anachronistic notions of morality. The
policy favoring marriage ‘is rooted in the necessity of providing an institutional
basis for defining the fundamental relational rights and responsibilities of persons
in organized society.’ (Laws v. Griep (Iowa 1983) 332 N.W.2d 339, 341.)
Formally married couples are granted significant rights and bear important
responsibilities toward one another which are not shared by those who cohabit
without marriage.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 275; Marvin v.
Marvin (1976) 18 Cal.3d 660, 684 [observing that “the structure of society itself
. . . depends upon the institution of marriage”].)5
There are also practical interests served by the policy favoring marriage.
For purposes of determining entitlement to rights and benefits, a marriage license
provides a “readily verifiable method of proof.” (Norman v. Unemployment Ins.
Appeals Bd., supra, 34 Cal.3d at p. 10.) By contrast, a claim for such rights and
benefits made by an unmarried couple presents “numerous problems of standards
and difficulties of proof” regarding the depth and stability of the nonmarital
relationship that create a potential for “intrusions into rights of privacy and
association.” (Ibid.; Elden v. Sheldon, supra, 46 Cal.3d at pp. 275-276.) A related
interest supporting the public policy of promoting marriage is to minimize the risk
of third parties who provide services or benefits from loss or fraud. (Harrod v.
Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 158 [upholding denial of
cause of action for wrongful death to surviving partner of unmarried couple under
former Code of Civil Procedure section 377 because “an action based on a
5 The policy favoring marriage is an affirmative policy that fosters and promotes
the marital relationship and is not incompatible with some degree of legal
recognition and protection for unmarried couples and individuals. (See, e.g.,
Marvin v. Marvin (1976) 18 Cal.3d 660, 683-684; Beaty, supra, 6 Cal.App.4th at
p. 1463 [“There are scores of statutes in which the Legislature has included
‘marital status’ in antidiscrimination legislation”].)
20
meretricious relationship presents greater problems of proof and dangers of
fraudulent claims than an action by a spouse or putative spouse”].)
These policy considerations cannot justify denial of Unruh Act protection
to domestic partners, whatever their application to other unmarried individuals and
couples. To couples who meet the requirements of establishing a domestic
partnership under the Domestic Partner Act and who have registered under that
law, the Legislature has granted legal recognition comparable to marriage both
procedurally and in terms of the substantive rights and obligations granted to and
imposed upon the partners, which are supported by policy considerations similar
to those that favor marriage. (§ 297.5, subd. (a).) Thus, under the Domestic
Partner Act, domestic partners, like “[f]ormally married couples,” have been
“granted significant rights and bear important responsibilities toward one another
which are not shared” by couples who cohabit or who have not registered as
domestic partners. (Elden v. Sheldon, supra, 46 Cal.3d at p. 275.)
Furthermore, as explained in the next part, the practical considerations
served by the policy favoring marriage are now also promoted by the Domestic
Partner Act. The Declaration of Domestic Partnership provides a readily
verifiable method of proof for determining eligibility for services and benefits.
Additionally, the mutual obligations undertaken by domestic partners, comparable
to those of spouses, minimizes any economic risk to third parties that extend such
services and benefits to domestic partners. Thus, in creating domestic
partnerships, the Legislature has also created a policy favoring such partnerships
similar to the policy favoring marriage.
Additionally, the Legislature has made it abundantly clear that an important
goal of the Domestic Partner Act is to create substantial legal equality between
domestic partners and spouses. As noted above, subdivision (f) of section 297.5
states: “Registered domestic partners shall have the same rights regarding
21
nondiscrimination as those provided to spouses.” We interpret this language to
mean that there shall be no discrimination in the treatment of registered domestic
partners and spouses. This reading comports with the Legislature’s statement that
the Domestic Partnership Act “shall be construed liberally in order to secure to
eligible couples who register as domestic partners the full range of legal rights,
protections and benefits, as well as all of the responsibilities, obligations, and
duties to each other, to their children, to third parties and as to the state, as the
laws of California extend to and impose upon spouses.” (Stats. 2003, ch. 421,
§ 15, italics added.) Of special relevance to the Unruh Act issue presented here,
the Legislature has found that expanding the rights and obligations of domestic
partners “would reduce discrimination on the bases of sex and sexual orientation
in a manner consistent with the requirements of the California Constitution.” (Id.,
§ 1, subd. (b).)
In light of this legislative action, we conclude that the policy favoring
marriage is not served by denying registered domestic partners protection from
discrimination under the Unruh Act. To the contrary, permitting a business to
discriminate against registered domestic partners by denying them benefits or
services it extends to spouses violates the comparable public policy favoring
domestic partnership. We conclude that, consistent with the first prong of the
Harris analysis, discrimination against registered domestic partners in favor of
married couples is a type of discrimination that falls within the ambit of the Unruh
Act.
b. Legitimate Business Interests
As a further ground for holding that the Unruh Act did not ban marital
status discrimination, Beaty invoked the second prong of the Harris analysis and
found that the insurer’s denial to the plaintiffs of the umbrella coverage it issued to
married couples was justified by legitimate business interests. (See Harris, supra,
22
52 Cal.3d at pp. 1162-1165.) Likewise, BHCC, relying on Beaty, also argues that
its restriction of the spousal benefit to married couples serves legitimate business
interests.
In its discussion of the second prong of Harris, Beaty found that the “legal
unity of interest and the shared responsibilities attendant upon a marriage” both
minimized the economic risk to the insurer in providing such coverage to married
couples and “provide[d] a fair and reasonable means of determining eligibility for
services or benefits.” (Beaty, supra, 6 Cal.App.4th at p. 1464.) By contrast, an
insurer could reasonably conclude that the relationship of an unmarried couple
“lacks the assurance of permanence necessary to assess with confidence the risks
insured against in a joint umbrella policy.” (Ibid.) As discussed, these same
concerns have been echoed in other decisions rejecting claims by unmarried
couples to such benefits and services. (E.g., Elden v. Sheldon, supra, 46 Cal.3d at
pp. 275-276; Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 9;
Harrod v. Pacific Southwest Airlines, supra, 118 Cal.App.3d at p. 158.)
These concerns, however, do not apply to registered domestic partners.
Registered domestic partners occupy a legal status that, like marital status, is
formalized, public and verifiable. (§§ 297, 298, 298.5, 299.) The Declaration of
Domestic Partnership that registered domestic partners are required to file with the
Secretary of State (§ 297, subd. (b)) provides an easily verifiable method of
determining whether a couple is in a registered domestic partnership. Therefore, a
business is no longer required to “undertake a ‘massive intrusion’ [citation] into
[the couples’] private lives [and] inquire into their sexual fidelity and emotional
and economic ties” (Beaty, supra, 6 Cal.App.4th at p. 1465) to determine whether
these unions possess a sufficient assurance of permanence and legal unity of
interests to extend benefits formerly reserved for spouses. Moreover, because the
substantive rights and responsibilities granted to and imposed upon domestic
23
partners are the same as those granted to and imposed upon spouses (§ 297.5), a
business extending such benefits would have the same assurance against loss or
fraud that it would have in the case of spouses.
In light of this analysis, we find unpersuasive the various business interests
BHCC claims are served by its policy of denying family membership benefits to
any but married couples. BHCC claims that extending that benefit to “members’
friends” might lead to overuse of its facilities, create a disincentive for such
friends to apply for membership and would discourage its “legitimate goal of
creating a family-friendly environment by welcoming the immediate family of
married members.” French, however, is not simply Koebke’s friend, but her
registered domestic partner, with rights and responsibilities similar to that of a
spouse. Extending the spousal benefit to her would not create the stampede on the
fairway that BHCC appears to envision.
BHCC also argues that denying French the spousal benefit contributes to
the creation of a “family-friendly environment.” While creating a family-friendly
environment may be a legitimate business interest, that policy is not served when a
business discriminates against the domestic partner of one of its members. Rather,
by so doing, the business violates the policy favoring domestic partnerships which,
like the policy favoring marriage, seeks to promote and protect families as well as
reduce discrimination based on gender and sexual orientation. Accordingly, we
conclude that, while promoting a “family-friendly environment” may be a
legitimate business interest, that interest is not furthered by excluding families
formed through domestic partnership.
c. Consequences of Allowing Plaintiffs’ Claim to Proceed
Lastly, in rejecting marital status as a category for purposes of Unruh Act
protection, Beaty applied the third prong of the Harris test, which inquires about
“the consequences that will flow” from permitting a plaintiff to proceed with a
24
novel Unruh Act claim. (Harris, supra, 52 Cal.3d at p. 1165.) Beaty concluded
that the consequence of allowing plaintiffs to proceed with their marital status
discrimination claim “would be that all de facto couples would be treated as a
married unit” in derogation of “the strong policy in this state favoring marriage.”
(Beaty, supra, 6 Cal.App.4th at p. 1465, italics added.) In this case, however,
allowing plaintiffs to proceed with their claim would not have this adverse
consequence, because our ruling affects only registered domestic partners, not all
unmarried couples. Moreover, the consequence of interpreting the Unruh Act to
prohibit discrimination against domestic partners would have the positive effect of
effectuating the Legislature’s intent expressed in the Domestic Partner Act to
create substantial legal equality between registered domestic partners and spouses.
d. BHCC’s Other Arguments
BHCC argues that section 297.5 has no impact on whether the Unruh Act
bars discrimination against domestic partners.6 It contends that section 297.5
extends to domestic partners only such rights and responsibilities as are granted to
and imposed upon spouses and, because spouses are not protected under the Act,
neither are domestic partners. This argument misses the point. As discussed,
consistent with the first prong of Harris, discrimination against domestic partners
is a type of discrimination that falls within the ambit of the Unruh Act.
Nonetheless, BHCC, following Beaty, argues that special policy and practical
considerations unique to marriage should preclude courts from interpreting the
Unruh Act to prohibit discrimination that favors married couples over unmarried
ones. As we have explained, these rationales do not justify discrimination
6 In connection with these claims, BHCC asks that we take judicial notice of
portions of the legislative history of section 297.5. We grant BHCC’s request.
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1.) Nothing in this material,
however, affects our analysis or alters our conclusions.
25
between married couples and domestic partners registered under the Domestic
Partner Act.
BHCC embraces the view expressed by the Beaty court that the inclusion of
marital status in antidiscrimination statutes other than the Unruh Act shows that
the Legislature’s failure to add that category to the Unruh Act implies a legislative
intent that such discrimination not be included within the Act. (Beaty, supra, 6
Cal.App.4th at p. 1463.) Historically, however, the scope of the Act has been
determined by both legislative amendments to the statute and judicial decisions,
and the Legislature has not seen fit to continuously “update” the Unruh Act to
include new forms of prohibited discrimination. (See Harris, supra, 52 Cal.3d at
pp. 1154-1159.) Moreover, we are not concerned at this point with marital status
discrimination generally but the discrimination against domestic partners outlawed
in the Domestic Partner Act. The Legislature’s failure to amend the Act to
expressly prohibit such discrimination is a particularly weak barometer of
legislative intent. (People v. Anderson (2002) 28 Cal.4th 767, 780.) For the same
reason, we also reject BHCC’s related argument that, because the only specific
antidiscrimination provision in section 297.5 involves discrimination against
domestic partners by public agencies (§ 297.5, subd. (i)), the Legislature did not
intend to ban discrimination against domestic partners in public accommodations.
No specific legislative declaration is required for this court to infer from the
statements of legislative intent accompanying the Domestic Partner Act an intent
that registered domestic partners should not be discriminated against in favor of
married couples in public accommodations.
BHCC also contends that, in order to qualify for protection under the Unruh
Act, a category must involve a protected class under federal equal protection law.
In a related claim, BHCC argues the enumerated categories have in common that
they encompass a group broadly stigmatized by the wider society. But Harris did
26
not hold that only classes protected under federal equal protection law were
worthy of protection under the Unruh Act, nor did we require a history of
stigmatization in order to bring a category within the ambit of the Act.
Moreover, discrimination based on marital status implicates discrimination
against homosexuals who, as the Legislature recognized in the Domestic Partner
Act, have been subject to widespread discrimination. For example, in its findings
with respect to section 297.5, the Legislature notes that gay, lesbian, and bisexual
Californians have established “lasting, committed, and caring relationships”
despite “longstanding social and economic discrimination.” (Stats. 2003, ch. 421,
§ 1, subd. (b).) Additionally, the Legislature declared that one purpose served by
expanding the rights of domestic partners is to combat such discrimination. (Ibid.)
Citing subdivision (c) of Civil Code section 51, BHCC also argues that its
policy passes muster under the Act because it applies equally to all unmarried
couples and individuals across the enumerated categories of the Act, e.g., it applies
equally without regard to race, religion, nationality, gender, etc. Subdivision (c)
provides: “This section shall not be construed to confer any right or privilege on a
person that is conditioned or limited by law or that is applicable alike to persons of
every sex, color, race, religion, ancestry, national origin, disability, or medical
condition.” A similar argument was made in Beaty which found that “the Unruh
Act was not intended to create a right of insurance access so long as the insurer’s
policy is applicable alike to all persons regardless of race, color, sex, religion, etc.
[Citations.]” (Beaty, supra, 6 Cal.App.4th at p. 1463.)7 Because the defendant’s
7 The language currently found in subdivision (c) of Civil Code section 51
appeared in the second sentence of a prior version of section 51. (Stats. 1958, ch.
1866, § 1, p. 4424.) In Marina Point, we declared its meaning was “obscure.”
(Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at p. 733.) In Harris, however,
we deemed it significant that the Legislature had not altered or repealed that
section, but continued to add categories to it (Harris, supra, 52 Cal.3d at pp. 1158-
1159), and noted that the minimum income policy at issue applied equally to all
(Fn. continued on next page)
27
denial of umbrella policies to unmarried couples was not based on the enumerated
categories in the Act, the Court of Appeal concluded the plaintiffs had not been
“singled out for arbitrary treatment.” (Ibid.)
If Beaty meant to suggest by this observation that only the enumerated
categories in the Act can provide a basis for a claim of unlawful discrimination
under the Act, the observation was inaccurate. As Beaty elsewhere acknowledges,
in Harris we declined to overrule our prior decisions that “extended the Unruh Act
to classifications not expressed in the statute.” (Beaty, supra, 6 Cal.App.4th at
p. 1462.) Thus, in Harris, we cited the statutory language relied on by Beaty for
the limited purpose of showing that the Legislature’s continued emphasis on the
enumerated categories was evidence that it did not intend for the Act to ban all
forms of arbitrary discrimination. (Harris, supra, 52 Cal.3d at p. 1158-1159.) We
did not hold that this legislative activity foreclosed judicial expansion of the Act to
include new categories. We merely cautioned that the addition of new categories
would have to be consistent with legislative intent. (Ibid.) As discussed above,
extending the Act to protect registered domestic partners goes no farther than the
express and implied legislative mandate against discrimination found in the
Domestic Partner Act.
We conclude that the Unruh Act prohibits discrimination against domestic
partners registered under the Domestic Partner Act in favor of married couples.
Therefore, to the extent plaintiffs’ marital status discrimination claim implicates
the Domestic Partner Act, BHCC is not entitled to summary judgment.
(fn. continued from previous page)
members of the enumerated categories. We cited this as further evidence that that
policy was not arbitrary for purposes of the Act. (Id. at p. 1169.)
28
C. Prior to Enactment of the Domestic Partner Act, BHCC’s Spousal
Benefit Policy Did Not Constitute Either Impermissible Marital Status
Discrimination or Sexual Orientation Discrimination on Its Face, but Plaintiffs
May Still Seek to Prove that the Policy Violated the Unruh Act as Applied to
Them.
In addition to seeking injunctive relief, plaintiffs seek damages for
violations of the Unruh Act “for being subject to discriminatory treatment by
[BHCC] for many years prior” to the effective date of the Domestic Partner Act on
January 1, 2005.8 Therefore, we address whether, during this earlier period,
BHCC’s denial of the spousal benefit to plaintiffs constituted impermissible
marital status discrimination under the Unruh Act. We conclude that, on its face,
the policy did not violate the Unruh Act. We also address and reject plaintiffs’
alternative claim that, on its face, BHCC’s policy violated the Act’s prohibition of
sexual orientation discrimination. However, we agree with the Court of Appeal
that, while BHCC’s policy did not on its face constitute either marital status or
sexual orientation discrimination, sufficient evidence of unequal application of the
policy was adduced by plaintiffs to allow them to proceed on their Unruh Act
claim on an unequal application theory.
As noted, Beaty found that the policy favoring marriage precluded
recognition of marital status as a protected category under the Unruh Act. We
need not decide whether that categorical statement is correct because even if we
assume that marital status discrimination, outside the context of the Domestic
Partner Act, is cognizable under the Unruh Act, such discrimination would
nonetheless be permissible if justified by “legitimate business interests.” (Harris,
supra, 52 Cal.3d at p. 1162.) Applying this test to the case before us, we conclude
8 Whether portions of plaintiffs’ claim are barred by the applicable statute of
limitations for Unruh Act actions is not before us and we express no opinion on
that subject.
29
that legitimate business interests facially justified BHCC’s spousal benefit policy
during the period before the effective date of the Domestic Partner Act.9
BHCC argues that its goal in adopting its spousal benefit policy was to
strike a balance between competing concerns. BHCC wanted to attract and
maintain members while preventing overutilization of its facilities. BHCC could
reasonably have concluded that these goals would best be served by extending
certain benefits to families created through marriage but not to unmarried couples
and individuals. BHCC could also have concluded that extending spousal benefits
to unmarried individual members would have led to overutilization of its facility,
created a disincentive for the friends of such members to buy their own
memberships in the club, and created a constant influx of casual users of the
course that may have had an adverse effect on the creation of a family-friendly
environment, to the extent that that may be a legitimate business interest. Prior to
the Domestic Partner Act, a marriage license presented the clearest method by
which BHCC could distinguish among its members in order to extend benefits to
some, but not to others, and achieve its larger goals. In this connection, BHCC
was not obligated to employ other methods, such as requiring or allowing proof of
cohabitation, that were arguably less reliable and more intrusive than a marriage
license to ascertain the nature and stability of its unmarried members’
relationships. Of course, BHCC was free to cut finer distinctions than married and
unmarried, but its failure to do so, even though it may have resulted in some
degree of unfairness to committed couples like plaintiffs, did not on its face
constitute impermissible marital status discrimination.
9 Since we conclude that BHCC’s adoption of its spousal benefit policy was
justified by legitimate business interests, we need not discuss the third Harris
prong, the consequences of allowing plaintiffs’ claim to proceed. (Harris, supra,
52 Cal.3d at pp. 1165-1169.)
30
Accordingly, we conclude that BHCC’s spousal benefit policy for the
period prior to the Domestic Partner Act did not, on its face, constitute
impermissible marital discrimination under the Unruh Act.10
Plaintiffs alternatively contend that BHCC’s policy facially violated the
Unruh Act’s proscription against sexual orientation discrimination (Harris, supra,
52 Cal.3d at p. 1155), because using marriage as a criterion for allocating benefits
10 Although plaintiffs were registered domestic partners under the domestic
partner statutes in effect between January 1, 2000 and January 1, 2005, (see Stats.
1999, ch. 588, Stats. 2001, ch. 893) they do not base their marital status
discrimination claim for this period of time on those statutes. Rather, they assert
that the Unruh Act bars marital status discrimination against unmarried couples
generally. Nor do plaintiffs argue that BHCC could not distinguish, in its pursuit
of the legitimate business interests articulated above, between registration under
those significantly weaker domestic partner statutes and a marriage license.
Justice Werdegar’s concurring and dissenting opinion argues that it is illogical to
reject BHCC’s legitimate business interests as justifications for denying the
spousal benefit to registered domestic partners under the Domestic Partner Act but
not under prior versions of that law. We disagree. The prior versions of the
domestic partner law were not comparable to the Domestic Partner Act in scope,
intent, or procedure. It was, for example, much easier to terminate a domestic
partnership under earlier versions of the law than it is under the Domestic Partner
Act. (Compare former § 299, subd. (a) and current § 299.) Moreover, the prior
versions did not grant to, or impose upon, registered domestic partners the broad
range of substantive rights and responsibilities granted to and imposed upon
registered domestic partners under the Domestic Partner Act. For example, the
only substantive right generally granted to domestic partners registered under the
2000 version of the domestic partner law was hospital visitation rights (Health &
Saf. Code, § 1261.) Nor did the prior versions contain the explicit declaration of
the Legislature’s intent to equalize the status of registered domestic partners and
spouses found in the current version. (Stats. 2003, ch. 421, § 1.) Thus, unlike the
current expansive law, earlier versions of the domestic partner law distinguished
registered domestic partners from other unmarried couples for very limited
purposes and domestic partnership registration was not in itself evidence of mutual
commitment and responsibility comparable to marriage. We therefore reject the
concurring and dissenting opinion’s contention that the existence of these earlier
domestic partner statutes should alter our analysis of plaintiffs’ claim for damages
during this period.
31
necessarily denies such benefits to all of its homosexual members who, like
plaintiffs, are unable to marry. (§ 300 [“Marriage is a personal relation arising out
of a civil contract between a man and a woman . . . .”].)
In Harris, we rejected an analogous claim. The plaintiffs in Harris argued
that, assuming economic status was not protected under the Act, the defendant’s
minimum income policy constituted gender discrimination because of its disparate
impact on women who were more likely to be receiving public assistance and who
generally had lower incomes than men. (Harris, supra, 52 Cal.3d at p. 1170.) We
observed, however, that “the language of the Act suggests that intentional acts of
discrimination, not disparate impact, was the object of the legislation.” (Id. at
p. 1172.) Examining the language of Civil Code section 51 we explained, “The
references to ‘aiding’ and ‘inciting’ denial of access to public accommodations, to
making discriminations and restrictions, and to the commission of an ‘offense’
imply willful, affirmative misconduct on the part of those who violate the Act.
Moreover, the damages provision allowing for an exemplary award of up to treble
the actual damages suffered with a stated minimum amount reveals a desire to
punish intentional and morally offensive conduct. In contrast, title VII of the Civil
Rights Act [which allows a disparate impact analysis] does not allow recovery of
compensatory or punitive damages, but confines the plaintiff to specified forms of
equitable relief. [Citation.]” (Harris, supra, at p. 1172.) We noted further that
the Act “explicitly exempts standards that are ‘applicable alike to persons of every
sex, color, race, religion, ancestry, national origin, or blindness or other physical
disability.’ ([Civ. Code] § 51.) By its nature, an adverse impact claim challenges
a standard that is applicable alike to all such persons based on the premise that,
notwithstanding its universal applicability, its actual impact demands scrutiny. If
the Legislature had intended to include adverse impact claims, it would have
omitted or at least qualified this language in section 51.” (Id. at pp. 1172-1173.)
32
We also observed that the plaintiffs had failed to cite any authority from
any jurisdiction involving statutes comparable to the Unruh Act in which the
disparate impact test had been employed. (Harris, supra, 53 Cal. at p. 1173.)
Furthermore, we noted that the federal laws that applied a disparate impact test
were aimed at specific forms of discrimination in employment and housing while
the Unruh Act “ ‘aims to eliminate arbitrary discrimination in the provision of all
business services to all persons. Adoption of the disparate impact theory to cases
under the Unruh Act would expose businesses to new liability and potential court
regulation of their day-to-day practices in a manner never intended by the
Legislature. This we decline to do.’ ” (Id. at p. 1174.) We held, therefore, “that a
plaintiff seeking to establish a case under the Unruh Act must plead and prove
intentional discrimination in public accommodations in violation of the terms of
the Act. A disparate impact analysis or test does not apply to Unruh Act claims.”
(Id. at p. 1175.) Nonetheless, we acknowledged that evidence of disparate impact
could be admitted in Unruh Act cases because “such evidence may be probative of
intentional discrimination in some cases . . . .” (Ibid.)
Plaintiffs cast their claim as one of disparate treatment rather than disparate
impact. Plaintiffs argue that, unlike disparate impact, in which the
disproportionate impact of a facially neutral policy on a protected class is a
substitute for discriminatory intent, their claim is that BHCC’s discriminatory
intent was established by its adoption of marriage as the criterion by which to
extend benefits to some of its members, but not others, because gay and lesbian
couples cannot marry in this state. Thus, according to plaintiffs, BHCC’s adoption
of the spousal benefit policy amounted to intentional sexual orientation
discrimination. Plaintiffs argue that this disparate treatment theory is a recognized
theory of discrimination under the Unruh Act. (See Roth v. Rhodes (1994) 25
Cal.App.4th 530, 538 [“A policy or a classification, in itself permissible, may
33
nevertheless be illegal if it is merely a device employed to accomplish prohibited
discrimination”].) Here, however, plaintiffs do not point to any evidence that
BHCC adopted its spousal benefit policy to accomplish discrimination on the basis
of sexual orientation. Rather, plaintiffs’ argument, like disparate impact analysis,
relies on the effects of a facially neutral policy on a particular group and would
require us to infer solely from such effects a discriminatory intent. Accordingly,
the reasons we gave for rejecting disparate impact in Harris would seem to apply
with equal force to plaintiffs’ theory. We therefore conclude that BHCC’s policy
did not, on its face, discriminate against plaintiffs on the basis of sexual
orientation.
Nonetheless, as the Court of Appeal noted, there was evidence adduced in
the summary judgment proceeding below that BHCC did not apply its facially
neutral policy in an impartial manner. Rather, as the Court of Appeal observed,
there was evidence that unmarried, heterosexual members of BHCC were granted
membership privileges to which they were not entitled, while plaintiffs were
denied such privileges purportedly pursuant to BHCC’s spousal benefit policy.
There was, moreover, significant evidence that BHCC’s directors were motivated
by animus toward plaintiffs because of their sexual orientation, including evidence
of BHCC’s inconsistent application of the spousal benefit policy to its unmarried,
heterosexual members while, at the same time, it repeatedly rebuffed plaintiffs’
efforts to modify the policy to include them . We conclude then that plaintiffs
should be allowed to try to establish that, prior to 2005, BHCC’s spousal benefit
policy was discriminatorily applied in violation of the Unruh Act. (See Everett v.
Superior Court (2002) 104 Cal.App.4th 388 [reversing summary judgment where
the plaintiffs presented evidence sufficient to support an inference that amusement
park’s facially neutral cutting in line policy was discriminatory as applied against
African-Americans].)
34
DISPOSITION
For the foregoing reasons, we reverse the judgment of the Court of Appeal
in part, affirm it in part, and remand the case for further proceedings consistent
with this opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
CHIN,
J.
35
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
I concur in the majority’s conclusion that because the Unruh Civil Rights
Act (Civ. Code, § 51) prohibits discrimination against registered domestic partners
on the basis of their marital status and plaintiffs are registered domestic partners
under the Domestic Partner Rights and Responsibilities Act of 2003 (Stats. 2003,
ch. 421), defendant Bernardo Heights Country Club (BHCC) is not entitled to
summary judgment on plaintiffs’ claim for injunctive relief against marital status
discrimination. (Maj. opn., ante, pt. II.B.) I respectfully disagree, however, with
the majority’s conclusion that “legitimate business interests facially justified
BHCC’s spousal benefit policy” (maj. opn., ante, at p. 29) before January 1, 2005,
the effective date of the current act. As the majority concedes (id. at p. 31, fn. 10),
plaintiffs have presented evidence that they were registered as domestic partners
under the partnership statutes in effect between January 1, 2000, and January 1,
2005. The business interests the majority cites as justifying the earlier
discrimination are the same interests BHCC posits and the majority rejects as
justifying BHCC’s current discrimination. In my view, those business interests
went no further in justifying discrimination against domestic partners registered
under the previous act than they do now.
In its brief on the merits, BHCC posited the following business
justifications for its spousal benefit policy: (1) to restrict access in order to ensure
availability of tee times, avoid slow play, and preserve the golf course’s condition;
(2) to attract new members and discourage “free riding” guests from playing
1
repeatedly without joining; and (3) to help create a “family-friendly environment.”
I agree that restricting access, attracting members, and maintaining a congenial
atmosphere for families are legitimate goals for a country club. But in light of this
court’s holding that those interests do not justify discrimination against domestic
partners registered under the current act, BHCC, in my view, cannot demonstrate,
as a matter of law on the summary judgment record, that these goals justified
discriminating against couples in registered domestic partnerships in the 2000-
2004 period.
First, with regard to access, BHCC reasonably declines to “extend
unlimited golfing privileges to members’ friends.” But to provide club privileges
to registered domestic partners would not have been equivalent to opening the club
to unlimited use by members’ friends: even under California’s first domestic
partnership statute, effective January 1, 2000, partners were far more than
“friends.” Under that law (Stats. 1999, ch. 588), partners were defined as “two
adults who have chosen to share one another’s lives in an intimate and committed
relationship of mutual caring.” (Fam. Code, former § 297, subd. (a).)1 A
partnership could be formed only by jointly filing a notarized declaration and form
with the Secretary of State (former § 298), in which the partners stated they shared
a residence and “agree[d] to be jointly responsible for each other’s basic living
expenses incurred during the domestic partnership” (former § 297, subd. (b)(2)).
The Secretary of State kept a registry of partnerships and provided the partners
with a copy of the registered form. (Former § 298.5, subd. (b).) A person could
not register in a partnership if married, could have only one partner at a time, and
could not register a new partnership for six months after formally dissolving the
old one. (Former §§ 297, 298.5, 299.)
1
All further unspecified statutory references are to the Family Code.
2
A country club member might have dozens of golfing friends, but even
under the law from 2000 through 2004 the member could have had only one
registered domestic partner at a time and was restricted in how often he or she
could change registered partners. As far as the parties’ briefs reveal, plaintiffs
were the only registered partners seeking benefits at BHCC, but even at a club
with several members in registered partnerships, according golfing privileges to
each such member would not have significantly impacted tee times or course
conditions. What the majority observes about plaintiffs’ partnership today was
equally true in 2000 to 2004: extending club benefits to plaintiff French “would
not create the stampede on the fairway that BHCC appears to envision.” (Maj.
opn., ante, at p. 24.)
BHCC’s second asserted concern, that extending privileges would result in
“free riding, i.e. inviting guests who are avid golfers who would use the club
repeatedly, at a fraction of what it would cost to become a member,” is similarly
no more applicable to registered domestic partners under the 2000-2004 laws than
to partners registered under the current act. Providing registered domestic partners
club privileges would not have allowed a club member simply to get his or her
favorite golfing partner onto the course as a domestic partner; rather, the member
would have had to declare to the Secretary of State, on pain of misdemeanor
criminal liability, that the two shared a residence and were financially responsible
for each other’s needs, a responsibility enforceable by creditors. (Former §§ 297,
subd. (e), 298, subd. (c).) That significant numbers of club members would have
falsely so declared, thus subjecting themselves to financial responsibilities and
possible criminal liability and, in many cases, impliedly misrepresenting their
sexual orientation, is highly unlikely.
Denying registered domestic partners club privileges could, in theory, have
encouraged some partners of members to purchase their own memberships. But
3
that is equally true today, under the current version of the domestic partnership
law, yet the majority holds that neither that, nor any other legitimate business
interest, currently justifies denying privileges to domestic partners. For that
matter, the asserted justification would then, as now, apply in vastly higher
numbers to members’ spouses: had BHCC not extended club privileges to
spouses, many husbands and wives of members could have been expected to
purchase their own memberships, thus improving BHCC’s business position.
BHCC presumably did not deny privileges to spouses because to do so
would have impeded the club’s third asserted goal, that of “creating a family-
friendly environment by welcoming the immediate family of married members.”
But that goal, as well, fails to justify denying privileges to registered domestic
partners. By “family-friendly environment,” BHCC, which denies having
intentionally discriminated on the basis of sexual orientation, cannot mean a club
devoid of gay and lesbian members. As the Unruh Civil Rights Act proscribes
discrimination on the basis of sexual orientation (maj. opn., ante, at p. 31; see
Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155), a business
could not defend against liability for marital status discrimination by claiming
such discrimination was warranted as a means to effectuate sexual orientation
discrimination. A prohibited discriminatory goal cannot itself constitute a
legitimate business interest justifying discrimination.
By a “family-friendly” club environment, then, I take BHCC to mean not
an environment excluding gay and lesbian couples, but, rather, an environment
that welcomes members’ immediate families and includes them in club activities,
promoting fuller social relationships within the club membership. This is a
legitimate goal; BHCC reasonably could want club members to get to know each
other better by golfing and socializing with one another’s families, but this goal
would be disserved, not served, by the club’s policy of denying club privileges to
4
registered domestic partners of members. Even under California’s first domestic
partnership law, a couple registered as domestic partners necessarily lived
together, were financially responsible for one another’s needs, and had “chosen to
share one another’s lives in an intimate and committed relationship of mutual
caring.” (Former § 297.) Again, what the majority says of the current day was no
less true in the 2000-2004 period: the interest in “promoting a ‘family-friendly
environment’ . . . is not furthered by excluding families formed through domestic
partnership.” (Maj. opn., ante, at p. 24.)
In finding that legitimate business interests justified BHCC’s marital status
discrimination prior to 2005, the majority repeats BHCC’s claims its policy
avoided overutilization, encouraged new memberships, and helped create a
family-friendly environment. (Maj. opn., ante, at p. 30.) But, as shown above,
these interests no more justified denying club privileges to members’ registered
domestic partners before January 1, 2005, than they did after that date.
The majority also echoes, as an asserted business interest, BHCC’s claim
(in discussing the consequences of holding that the Unruh Civil Rights Act
prohibits marital status discrimination) that it would have to make club facilities
freely available to members’ friends because, absent a marriage requirement, it
would have no way, without intruding on members’ privacy, to distinguish among
nonmarital relationships. BHCC, the majority reasons, was not required to use
criteria or methods of proof that were “arguably less reliable and more intrusive
than a marriage license to ascertain the nature and stability of its unmarried
members’ relationships.” (Maj. opn., ante, at p. 30.) While this reason justifies
rejecting plaintiffs’ claim that BHCC’s policy illegally discriminates against all
unmarried couples, it carries no justificatory power with regard to registered
domestic partners, whose status is readily and nonintrusively verifiable by their
registration. The majority makes precisely this observation in rejecting BHCC’s
5
justification for its current discrimination (id. at p. 23), but unaccountably ignores
it in addressing past discrimination.
The majority’s fundamental illogic lies in virtually ignoring plaintiffs’
previous domestic partner registration in considering their claim of discrimination
before 2005, while relying heavily on the legal effect of their present registration
under the current law. In a footnote, the majority asserts plaintiffs “do not base
their marital status discrimination claim for this period of time on those [earlier
domestic partnership] statutes.” (Maj. opn., ante, at p. 31, fn. 10.) But in their
opening brief, plaintiffs relied expressly on the earlier laws, arguing that BHCC
could have verified couplehood without an intrusive investigation because “since
January 1, 2000, California has allowed non-married couples to register as
domestic partners with the state (see Fam. Code, §§ 297-298.5), providing a
simple ‘bright line’ if one were needed.”
At oral argument, to be sure, plaintiffs’ counsel explained that plaintiffs’
marital status discrimination claim for damages did not depend on the domestic
partnership laws; BHCC’s discrimination, he argued, was and is illegal as to all
unmarried couples, whether or not registered as domestic partners. But this
description of plaintiffs’ broad theory applied as well to plaintiffs’ claim for
injunctive relief, which the majority allows to go forward. Counsel, moreover,
acknowledged that the current law provided him with the strongest case for equal
treatment of domestic partners and married couples. In so doing, counsel did not
concede that the Unruh Civil Rights Act afforded no protection to domestic
partners under prior law; nor did he argue, contrary to plaintiffs’ opening brief,
that plaintiffs’ registration as domestic partners (under either law) should be
6
ignored if the court rejected their broad claim of discrimination against all
unmarried couples.2
Like the majority, I would reject plaintiffs’ broad claim that the Unruh
Civil Rights Act forbids BHCC from discriminating between married and any
unmarried couples. But plaintiffs’ having advanced such a broad claim should not
blind us to the narrower, more meritorious argument they have also made―that
BHCC had no legitimate business interest justifying denial of club privileges to
registered domestic partners, whose registration with the Secretary of State, as
plaintiffs point out, provides “a simple ‘bright line’ if one were needed.” The
majority recognizes this as to plaintiffs’ claim for prospective relief but illogically
denies it as to their claim for damages. For this reason, I respectfully dissent from
part II.C. of the majority opinion insofar as it rejects the claim for damages for
marital status discrimination.
I also differ in one respect with the majority’s analysis of plaintiffs’ claim
of sexual orientation discrimination. The majority holds, and I agree, that the
evidence of discriminatory animus on the part of BHCC’s directors, together with
evidence that BHCC informally extended spousal benefits to unmarried
2
The majority also points to procedural and substantive differences between
current and prior domestic partnership laws. (Maj. opn., ante, at p. 31, fn. 10.) In
my view, however, neither that domestic partnerships prior to 2005 could be
dissolved without a judicial proceeding nor that they accorded partners more
limited substantive rights than current law demonstrates that the legitimate
business interests BHCC posits justified its discriminatory policy. The goals of
limiting access and preventing “free riding” were met by provisions preventing a
partnership from being quickly or informally exchanged for a new partnership.
(Former §§ 298.5, subd. (c), 299, subd. (b).) As to creation of a family-friendly
environment, that the original law defined domestic partners as “shar[ing] one
another’s lives in an intimate and committed relationship of mutual caring”
(former § 297, subd. (a)) and made partners financially responsible for one
another’s needs (id., subd. (b)(2)) amply demonstrates that, even prior to 2005,
partners were, as the Legislature characterized them, one another’s “immediate
family members.” (Stats. 1999, ch. 588, § 1.)
7
heterosexual members while repeatedly refusing to modify its policies so as to
extend such benefits to plaintiffs and other homosexual couples, supports a claim
of discriminatory application. (Maj. opn., ante, at p. 34.) But the same evidence
would also appear to support plaintiffs’ claim that BHCC maintained its spousal
benefit limitation as a “subterfuge” or “device” (Roth v. Rhodes (1994) 25
Cal.App.4th 530, 538) to accomplish prohibited discrimination on the basis of
sexual orientation. Contrary to the majority’s characterization, plaintiffs do not
ask the court to infer such intentional sexual orientation discrimination “solely
from such [differential] effects” on homosexual members (maj. opn., ante, at
p. 34), but, rather, point to what they contend is significant record evidence “that
this was [BHCC’s] specific intent in maintaining this policy.” The evidence that
BHCC used its marital status rule as a subterfuge for intentional sexual orientation
discrimination may not be sufficient to survive summary judgment, but the
majority should at least acknowledge that plaintiffs, in a contention distinct from
what the majority characterizes as a disparate impact claim, do argue for such a
conclusion.
WERDEGAR, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Koebke v. Bernardo Heights Country Club
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 116 Cal.App.4th 791
Rehearing Granted
__________________________________________________________________________________
Opinion No. S124179
Date Filed: August 1, 2005
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Charles R. Hayes
__________________________________________________________________________________
Attorneys for Appellant:
Lambda Legal Defense and Education Fund, John W. Davidson; and H. Paul Kondrick for Plaintiffs and
Appellants.
Christine Sun, Alan Schlosser, Peter Eliasberg, Jordan C. Budd; James D. Esseks, Romana Mancini;
Miranda D. Junowicz, Steven C. Sheinberg, Michelle Deutchman; Geoff Kors; Maxie Rheinheimer
Stephens & Vrevich and Darin L. Wessel for American Civil Liberties Union of Northern California,
American Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego and
Imperial Counties, American Civil Liberties Union Foundation Lesbian and Gay Rights Project, the Anti-
Defamation League, Equality California and Tom Homann Law Association as Amici Curiae on behalf of
Plaintiffs and Appellants.
Nancy Hogshead-Makar; Nancy M. Solomon; Shannon Minter and Courtney Joslin for Women’s Sports
Foundation, California Women’s Law Center and National Center for Lesbian Rights as Amici Curiae on
behalf of Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Tom Greene, Chief
Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, and Antonette Benita Cordero,
Deputy Attorney General as Amici Curie on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Morrison & Foerster, John R. Shiner, Rick Bergstrom, John Sobieski, Michael Katz; Horvitz & Levy,
Frederic D. Cohen, Patricia Lofton and Jeremy B. Rosen for Defendant and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jon W. Davidson
Lambden Legal Defense and Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010-1729
(213) 382-7600
Jeremy B. Rosen
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800
2
Opinion Information
| Date: | Citation: | Docket Number: |
| Mon, 08/01/2005 | 36 Cal. 4th 824, 115 P.3d 1212, 31 Cal. Rptr. 3d 565 | S124179 |
Parties
| 1 | Koebke, B. Birgit (Plaintiff and Appellant) Represented by Jon Warren Davidson Lambda Legal Defense & Education Foundation 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA |
| 2 | Koebke, B. Birgit (Plaintiff and Appellant) Represented by H. Paul Kondrick Attorney at Law 3130 4th Ave San Diego, CA |
| 3 | French, Kendall E. (Plaintiff and Appellant) |
| 4 | Bernardo Heights Country Club (Defendant and Respondent) Represented by John R. Shiner Morrison & Foerster 555 W 5th St #3500 Los Angeles, CA |
| 5 | Bernardo Heights Country Club (Defendant and Respondent) Represented by Jeremy Brooks Rosen Horvitz & Levy LLP 15760 Ventura Blvd 18FL Encino, CA |
| 6 | Lockyer, Bill (Amicus curiae) Represented by Antonette Benita Cordero Office of the Attorney General 300 So. Spring St. Los Angeles, CA |
| 7 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by Christine Patricia Sun ACLU of Northern California 1663 Mission Street Suite 460 San Francisco, CA |
| 8 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by Jordan Charles Budd ACLU of San Diego 110 West C Street, Suite 901 San Diego, CA |
| 9 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by Peter J. Eliasberg ACLU Of Southern Calif 1616 Beverly Blvd Los Angeles, CA |
| 10 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by James Dixon Esseks ACLU Foundation Lesbian & Gay Rights Project 125 Broad St., 18th Fl. New York, NY |
| 11 | Womens Sports Foundation (Amicus curiae) Represented by Nancy Michelle Solomon California Women's Law Ctr 3460 Wilshire Blvd #1102 Los Angeles, CA |
| 12 | Womens Sports Foundation (Amicus curiae) Represented by Nancy Hogshead-Makar Florida Coastal School of Law 7555 Beach Blvd. Jacksonville, FL |
| 13 | Womens Sports Foundation (Amicus curiae) Represented by Courtney Grant Joslin National Center for Lesbian Rights 870 Market Street, Suite 570 San Francisco, CA |
| Opinion Authors | |
| Opinion | Justice Carlos R. Moreno |
| Concur | Justice Kathryn M. Werdegar |
| Dissent | Justice Kathryn M. Werdegar |
| Disposition | |
| Aug 1 2005 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Apr 19 2004 | Petition for review filed by counsel for aplts |
| Apr 22 2004 | Record requested |
| Apr 26 2004 | Request for extension of time filed for resp to file the answer to the petn, to 6-17-04. |
| Apr 26 2004 | Received Court of Appeal record two doghouses |
| Apr 27 2004 | Order filed resp's application for ext of time to file ans. to petn. is denied. |
| May 7 2004 | Request for depublication (petition for review pending) by the Women's Sports Foundation, et al. |
| May 10 2004 | Answer to petition for review filed by resp |
| May 20 2004 | Reply to answer to petition filed by counsel for aplt. (Koebke, et al.,) |
| Jun 9 2004 | Petition for review granted (civil case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Jul 2 2004 | Certification of interested entities or persons filed by deft-resp |
| Jul 2 2004 | Certification of interested entities or persons filed by pltfs-aplts |
| Jul 7 2004 | Request for extension of time filed Appellant ( Koebke) to file the opening brief on the merits. Asking to July 16, 2004. |
| Jul 12 2004 | Extension of time granted to July 16, 2004 for Appellant to serve and file the opening brief on the merits. |
| Jul 15 2004 | Change of contact information filed for: counsel for resp |
| Jul 19 2004 | Opening brief on the merits filed by aplts (40k) |
| Jul 22 2004 | Request for extension of time filed for resp to file the answer brief on the merits, to 9-15-04. **permission granted for extension of time, an order is being prepared. |
| Aug 4 2004 | Extension of time granted for resp to file the answer brief on the merits, to 9-15-04. |
| Aug 27 2004 | Association of attorneys filed for: resp |
| Aug 27 2004 | Request for extension of time filed for resps to file the answer brief on the merits, to 9-27. *permission granted, order being prepared. |
| Sep 1 2004 | Extension of time granted to 9-27-04 for resp to file the answer brief on the merits |
| Sep 28 2004 | Answer brief on the merits filed by resp. with attached appendix of authorities. (40k) |
| Oct 13 2004 | Request for extension of time filed by appellants to file the reply brief on the merits, to Oct 25. **permission granted, order being prepared. |
| Oct 18 2004 | Received: supplemental proof of service from aplts. |
| Oct 18 2004 | Extension of time granted to 10-25-04 for aplts to file the reply brief on the merits. |
| Oct 26 2004 | Reply brief filed (case fully briefed) by aplts (40k) |
| Nov 23 2004 | Request for extension of time filed by A.G., to file an Amicus Curiae brief in support of Appellants. asking to December 8, 2004. |
| Nov 24 2004 | Received application to file Amicus Curiae Brief WOMEN'S SPORTS FOUNDATION, et al., in support of appellants. |
| Nov 24 2004 | Received application to file Amicus Curiae Brief AMERICAN CIVIL LIBERTIES UNION OF NOTHERN CALIFORNIA, et al. in support of appellants. |
| Dec 1 2004 | Extension of time granted to Dec. 8 2004 for ATTORNEY GENERAL OF CA. to file the amicus curiae brief. |
| Dec 1 2004 | Supplemental briefing ordered The court requests the parties to file supplemental briefs directed to the following question: What impact does Family Code section 297.5, operative January 1, 2005, have on plaintiffs' marital status discrimination claim under the Unruh Act? The parties are directed to file simultaneous letter briefs on this question in the Sa Francisco office of the Supreme Court on or before Monday, January 3, 2005. Simultaneous reply briefs may be filed in the San Francisco offic of the Supreme Court on or before Monday, January 10, 2005. |
| Dec 8 2004 | Permission to file amicus curiae brief granted by ACLU of No. Calif., et al in support of aplts. Answers may be filed by 1-3-05. |
| Dec 8 2004 | Amicus curiae brief filed by ACLU of No. Calif., et al., in support of aplts |
| Dec 8 2004 | Permission to file amicus curiae brief granted by the Women's Sports Foundation, et al., in support of aplts. Answers may be filed by 1-3-05. |
| Dec 8 2004 | Amicus curiae brief filed by the Women's Sports Foundation, et al., in support of aplts. |
| Dec 8 2004 | Amicus curiae brief filed Bill Lockyer, California Attorney General |
| Dec 16 2004 | Request for extension of time filed by resp to answer all amicus curiae briefs, to 1-10-05. |
| Dec 29 2004 | Received: letter from respondent ( Bernardo Heights) re: answers to amicus curiae briefs. |
| Jan 3 2005 | Supplemental brief filed by resp |
| Jan 3 2005 | Request for judicial notice filed (granted case) by resp |
| Jan 4 2005 | Supplemental brief filed by aplts (CRC 40.1b) |
| Jan 10 2005 | Supplemental brief filed Resp's reply. |
| Jan 11 2005 | Supplemental brief filed Aplts reply. (CRC 40.1b) |
| Jan 11 2005 | Response to amicus curiae brief filed by resp to the A/C brief of the Cal. A.G. (CRC 40.1b) |
| Jan 11 2005 | Response to amicus curiae brief filed by resp to the A/C briefs of Women's Sports Foundation, Cal Women's Law Center, National Center for Lesbian Rights, ACLU, Anti-Defamation League, Equality Calif. and Tom Homann Law Assn. (40.1b) |
| May 3 2005 | Case ordered on calendar 5/26/05, 9am, S.F. |
| May 5 2005 | Request for judicial notice granted Respondent's request for judicial notice, filed January 3, 2005, is granted. Respondent's further request pursuant to California Rules of Court, rule 29(b)(2), and to introduce additional evidence is denied. |
| May 16 2005 | Supplemental brief filed Respondent ( Bernardo Heights Country Club.) |
| May 19 2005 | Received: Aplts' application for permission to file a response to resp's newly cited authorities. Brief submitted w/application. |
| May 19 2005 | Filed: Appellants' response to respondent's newly cited authorities. (filed w/permission) |
| May 23 2005 | Request for judicial notice granted Plaintiffs' request for judicial notice, filed on May 19, 2005 as part of their reply to respondent's newly cited authority, is granted |
| May 26 2005 | Cause argued and submitted |
| Aug 1 2005 | Opinion filed: Affirmed in part, reversed in part and remanded for further proceedings Majority opinion by Moreno, J. -----------------------joined by George, C.J., Kennard, Chin, Baxter, JJ. concurring & dissenting opinion by Werdegar, J. |
| Sep 7 2005 | Remittitur issued (civil case) |
| Briefs | |
| Jul 19 2004 | Opening brief on the merits filed |
| Sep 28 2004 | Answer brief on the merits filed |
| Oct 26 2004 | Reply brief filed (case fully briefed) |
| Dec 8 2004 | Amicus curiae brief filed |
| Dec 8 2004 | Amicus curiae brief filed |
| Dec 8 2004 | Amicus curiae brief filed |
| Jan 11 2005 | Response to amicus curiae brief filed |
| Jan 11 2005 | Response to amicus curiae brief filed |
| Brief Downloads | |
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| |
| May 19, 2011 Annotated by Ashley Bowman | General Rule: Facts: In 1995 Koebke asked BHCC’s board of directors to designate French as her “significant other” to allow them the same golf privileges as married couples, but the board refused. It refused to modify its spousal benefit policy again in 1998, even though the plaintiffs had by then executed a written Statement of Domestic Partnership and registered as domestic partners in the State of California and the City of San Diego. Although the plaintiffs presented documentation of their partnership and explained that their case differed from other unmarried couples’ because they could not legally marry, the board refused the plaintiffs’ request that BHCC extend full spousal benefits to French again in 2000. Although BHCC repeatedly rejected the plaintiffs’ request for spousal benefits, it allowed other members’ friends, unmarried significant others, and minor grandchildren to golf on an unlimited basis without fees. In 2001, Koebke received a letter from BHCC’s attorney informing her that “[the] board of directors recognizes the State of California’s strong public policy favoring marriage and believes that BHCC supports that policy as a family oriented organization.” Later that year the plaintiffs filed a discrimination suit against BHCC seeking damages, punitive damages, and injunctive and declaratory relief. Procedural History: On appeal, the Court of Appeal found that although Plaintiffs failed to establish a violation of the Act on the basis of marital status discrimination, gender discrimination, or sexual orientation discrimination, there was a triable issue of fact as to whether BHCC enforced its spousal benefit policy in a discriminatory manner. The Court of Appeal therefore reversed the summary judgment’s rejection of plaintiffs’ discriminatory application claim while affirming the judgment in all other respects. The court now considers the plaintiffs’ claims of marital status and sexual orientation discrimination, as well as their discriminatory application claim. Issue: Holding: (2) Prior to enactment of the Domestic Partner Act, BHCC’s spousal benefit policy did not constitute either impermissible marital status discrimination or sexual orientation discrimination on its face because it furthered BHCC’s legitimate business interests; however, the plaintiffs may still prove that the policy violated the Unruh Act as applied to them. Reasoning: Because the plaintiffs’ claim for injunctive relief requires the court to apply the law that is currently in effect, the court must determine whether BHCC currently violates the Act by denying the plaintiffs, who are registered domestic partners, the same benefits that it extends to married couples. The Domestic Partner Act, which became effective January 1, 2005, is intended to extend to domestic partners “the same rights, protections, and benefits” as well as “the same responsibilities, obligations, and duties under law… as are granted to and imposed upon spouses.” Domestic Partner Act § 297.5, subd. (a). Therefore, registered domestic partners have the same nondiscrimination rights provided to spouses. The Unruh Civil Rights Act prescribes the nondiscrimination rights that apply in public accommodations like BHCC. In creating the Act, the Legislature intended to ban all forms of arbitrary discrimination. Noting that Unruh does not provide an exhaustive list of arbitrary discrimination claims, in Harris v. Capital Growth Investors, the Supreme Court considered whether plaintiffs receiving public assistance could challenge a landlord’s refusal to rent to them on the basis a new Unruh claim of economic status discrimination. 52 Cal.3d 1142 (1991). The Harris court determined that an economic status discrimination claim was not cognizable under the Act by applying a three-part test. Applying the same three-part test to analyze Koebke and French’s martial discrimination claim, the Supreme Court considers (a) whether the claim is based on a classification that involves personal characteristics; (b) whether a legitimate business interest justifies the defendant’s discriminatory policy; and (c) the potential consequences of allowing the plaintiffs’ claim under the Act. It finds the following: (a) Marital status does involve personal characteristics because the decision to enter into a domestic partnership is motivated by personal values and beliefs. Therefore, marital status is more similar to the existing categories to which Unruh applies than to the economic status. Although the court in Beaty v. Truck Ins., Cal.App.4th 1455 (1992), expressly concluded that the strong public policy favoring marriage precluded recognition of marital status discrimination under the Act, Beaty was decided before the enactment of the Domestic Partner Act. While policy concerns and practical interests still favor marriage, under the Domestic Partner Act, the legislature has created a similar policy favoring substantial equity between domestic partnership and marriage. Therefore public policy concerns do not preclude prohibition of marital status under the Act. (b) BHCC’s business interests do not justify its policy treating domestic partners and married couples differently. While BHCC’s business interests in avoiding “overuse” of its facilities through fraud and creating a family-friendly environment are legitimate, denying domestic partners spousal benefits does not further these interests. Because domestic partnership—like marriage—is formalized, public, and verifiable, BHCC can address easily its fraud and overuse concerns by distinguishing between domestic partners and other unmarried couples with regard to spousal benefits. Excluding families formed through domestic partnership also fails to further BHCC’s interest in promoting a family-friendly environment—it violates a policy that seeks to promote and protect families as well as reduce sexual orientation discrimination. (c) The consequence of permitting the plaintiffs in this case to proceed with a marital status discrimination claim under the Act would be the positive effect of furthering the Domestic Partner Act’s intent to create substantial legal equality between registered domestic partners. Although BHCC presents other arguments against the Plaintiffs’ discrimination claim, its arguments are unpersuasive given the strong public policy against treating married couples and domestic partners differently and first prong of the Harris test’s finding that discrimination against couples registered under the Domestic Partner falls within the Act. Therefore, BHCC is not entitled to summary judgment to the extent that plaintiffs’ marital status claim implicates the Domestic Partner Act. (2) BHCC’s Spousal Benefit Policy did not constitute impermissible marital status discrimination or sexual orientation discrimination on its face prior to the enactment of the Domestic Partner Act; however Plaintiffs may prove that the policy violated the Act as applied to them. Marital Discrimination under the Act: Applying the Harris three-part test to the instant case before the enactment of the Domestic Partner Act, the court finds the following: (a) As noted in Beaty, the policy favoring marriage precluded recognizing marital status as a protected category under the Act prior to the enactment of the Domestic Partner Act. (b) Even if marital status discrimination were cognizable under the Act, BHCC’s legitimate business interests facially justified its spousal benefit policy before the effective date of the Domestic Partner Act. BHCC’s interest in preventing overutilization of its facilities is valid, and before the Domestic Partner Act, distinguishing between married and unmarried people was the clearest way to determine eligibility for benefits and meet BHCC’s business goals. Since a legitimate business interest justifies BHCC’s spousal benefit policy, the court need not consider the third part of the Harris test. Therefore prior to the Domestic Partner Act, BHCC’s spousal benefit policy did not on its face constitute impermissible martial discrimination under the Act. Sex Discrimination under the Act: The plaintiffs alternatively claim that prior to the Domestic Partner Act, BHCC’s policy facially violated the Act’s prohibition against sexual orientation discrimination because of its disparate impact on gays and lesbians. By using marriage as a criterion to determine eligibility for benefits, BHCC necessarily denies those benefits to same-sex members who cannot legally marry. In Harris the court rejected an analogous claim that a landlord’s minimum income policy disparately impacted women, who were more likely to receive public interest and generally had lower incomes than men. 52 Cal. 3rd at 1170. It determined that the Act intended to proscribe intentional acts of discrimination, not disparate impact. Here, as in Harris, the plaintiff must plead and prove intentional discrimination in public accommodations to establish a violation of the Act. While the plaintiffs may use evidence of disparate impact to support an intentional discrimination claim under the Act, they must still demonstrate that BHCC adopted its spousal benefit policy with the intent to discriminate on the basis of sexual orientation. Because the plaintiffs only present evidence of differential effects and not of discriminatory intent, BHCC’s spousal benefit policy did not, on its face, discriminate against plaintiffs on the basis of sexual orientation. Discrimination as applied to plaintiffs under the Act: While BHCC’s spousal benefit policy does not violate the Act on its face, there is evidence that BHCC did not apply its facially neutral policy uniformly. The plaintiffs present evidence that that unmarried heterosexual members received spousal benefits to which they were not entitled, and that animus toward the plaintiffs because of their sexual orientation motivated BHCC directors’ inconsistent application of and refusal to modify the spousal benefits policy. The plaintiffs should therefore be allowed an opportunity to establish that, prior to the Domestic Partner Act, BHCC discriminatorily applied its spousal benefit policy in violation the Act. Ruling: Concurrence/ Dissent: Additionally, the majority fails to acknowledge that plaintiffs’ evidence of discriminatory application of BHCC’s spousal benefit police also appears to support the plaintiffs’ claim that BHCC maintained its spousal benefit limitation as a device to accomplish prohibited discrimination on the basis of sexual orientation. Therefore, the plaintiffs do present evidence of specific discriminatory intent in maintaining the policy, rather than mere evidence of differential effects on gay and lesbian members. Relevant Cases and Authorities: California Domestic Partner Rights and Responsibilities Act of 2003, Cal. Fam. Code § 297.5: Beaty v. Truck Ins. Exchange, 6 Cal.App.4th 1455 (1992): Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991): White v. Davis, 13 Cal.3d 757 (1975): TAGS: discrimination, domestic partner, gay, lesbian, marital status, marital status discrimination, public accommodations, sexual orientation discrimination Annotation by Ashley Bowman |
