Supreme Court of California Justia
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, 08/01/200536 Cal. 4th 824, 115 P.3d 1212, 31 Cal. Rptr. 3d 565S124179

Parties
1Koebke, B. Birgit (Plaintiff and Appellant)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Foundation
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

2Koebke, B. Birgit (Plaintiff and Appellant)
Represented by H. Paul Kondrick
Attorney at Law
3130 4th Ave
San Diego, CA

3French, Kendall E. (Plaintiff and Appellant)
4Bernardo Heights Country Club (Defendant and Respondent)
Represented by John R. Shiner
Morrison & Foerster
555 W 5th St #3500
Los Angeles, CA

5Bernardo Heights Country Club (Defendant and Respondent)
Represented by Jeremy Brooks Rosen
Horvitz & Levy LLP
15760 Ventura Blvd 18FL
Encino, CA

6Lockyer, Bill (Amicus curiae)
Represented by Antonette Benita Cordero
Office of the Attorney General
300 So. Spring St.
Los Angeles, CA

7Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Christine Patricia Sun
ACLU of Northern California
1663 Mission Street Suite 460
San Francisco, CA

8Aclu 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

9Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Of Southern Calif
1616 Beverly Blvd
Los Angeles, CA

10Aclu 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

11Womens Sports Foundation (Amicus curiae)
Represented by Nancy Michelle Solomon
California Women's Law Ctr
3460 Wilshire Blvd #1102
Los Angeles, CA

12Womens Sports Foundation (Amicus curiae)
Represented by Nancy Hogshead-Makar
Florida Coastal School of Law
7555 Beach Blvd.
Jacksonville, FL

13Womens Sports Foundation (Amicus curiae)
Represented by Courtney Grant Joslin
National Center for Lesbian Rights
870 Market Street, Suite 570
San Francisco, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
ConcurJustice Kathryn M. Werdegar
DissentJustice Kathryn M. Werdegar

Disposition
Aug 1 2005Opinion: Affirmed in part/reversed in part

Dockets
Apr 19 2004Petition for review filed
  by counsel for aplts
Apr 22 2004Record requested
 
Apr 26 2004Request for extension of time filed
  for resp to file the answer to the petn, to 6-17-04.
Apr 26 2004Received Court of Appeal record
  two doghouses
Apr 27 2004Order filed
  resp's application for ext of time to file ans. to petn. is denied.
May 7 2004Request for depublication (petition for review pending)
  by the Women's Sports Foundation, et al.
May 10 2004Answer to petition for review filed
  by resp
May 20 2004Reply to answer to petition filed
  by counsel for aplt. (Koebke, et al.,)
Jun 9 2004Petition for review granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jul 2 2004Certification of interested entities or persons filed
  by deft-resp
Jul 2 2004Certification of interested entities or persons filed
  by pltfs-aplts
Jul 7 2004Request for extension of time filed
  Appellant ( Koebke) to file the opening brief on the merits. Asking to July 16, 2004.
Jul 12 2004Extension of time granted
  to July 16, 2004 for Appellant to serve and file the opening brief on the merits.
Jul 15 2004Change of contact information filed for:
  counsel for resp
Jul 19 2004Opening brief on the merits filed
  by aplts (40k)
Jul 22 2004Request 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 2004Extension of time granted
  for resp to file the answer brief on the merits, to 9-15-04.
Aug 27 2004Association of attorneys filed for:
  resp
Aug 27 2004Request 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 2004Extension of time granted
  to 9-27-04 for resp to file the answer brief on the merits
Sep 28 2004Answer brief on the merits filed
  by resp. with attached appendix of authorities. (40k)
Oct 13 2004Request 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 2004Received:
  supplemental proof of service from aplts.
Oct 18 2004Extension of time granted
  to 10-25-04 for aplts to file the reply brief on the merits.
Oct 26 2004Reply brief filed (case fully briefed)
  by aplts (40k)
Nov 23 2004Request 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 2004Received application to file Amicus Curiae Brief
  WOMEN'S SPORTS FOUNDATION, et al., in support of appellants.
Nov 24 2004Received application to file Amicus Curiae Brief
  AMERICAN CIVIL LIBERTIES UNION OF NOTHERN CALIFORNIA, et al. in support of appellants.
Dec 1 2004Extension of time granted
  to Dec. 8 2004 for ATTORNEY GENERAL OF CA. to file the amicus curiae brief.
Dec 1 2004Supplemental 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 2004Permission 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 2004Amicus curiae brief filed
  by ACLU of No. Calif., et al., in support of aplts
Dec 8 2004Permission 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 2004Amicus curiae brief filed
  by the Women's Sports Foundation, et al., in support of aplts.
Dec 8 2004Amicus curiae brief filed
  Bill Lockyer, California Attorney General
Dec 16 2004Request for extension of time filed
  by resp to answer all amicus curiae briefs, to 1-10-05.
Dec 29 2004Received:
  letter from respondent ( Bernardo Heights) re: answers to amicus curiae briefs.
Jan 3 2005Supplemental brief filed
  by resp
Jan 3 2005Request for judicial notice filed (granted case)
  by resp
Jan 4 2005Supplemental brief filed
  by aplts (CRC 40.1b)
Jan 10 2005Supplemental brief filed
  Resp's reply.
Jan 11 2005Supplemental brief filed
  Aplts reply. (CRC 40.1b)
Jan 11 2005Response to amicus curiae brief filed
  by resp to the A/C brief of the Cal. A.G. (CRC 40.1b)
Jan 11 2005Response 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 2005Case ordered on calendar
  5/26/05, 9am, S.F.
May 5 2005Request 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 2005Supplemental brief filed
  Respondent ( Bernardo Heights Country Club.)
May 19 2005Received:
  Aplts' application for permission to file a response to resp's newly cited authorities. Brief submitted w/application.
May 19 2005Filed:
  Appellants' response to respondent's newly cited authorities. (filed w/permission)
May 23 2005Request 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 2005Cause argued and submitted
 
Aug 1 2005Opinion 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 2005Remittitur issued (civil case)
 

Briefs
Jul 19 2004Opening brief on the merits filed
 
Sep 28 2004Answer brief on the merits filed
 
Oct 26 2004Reply brief filed (case fully briefed)
 
Dec 8 2004Amicus curiae brief filed
 
Dec 8 2004Amicus curiae brief filed
 
Dec 8 2004Amicus curiae brief filed
 
Jan 11 2005Response to amicus curiae brief filed
 
Jan 11 2005Response to amicus curiae brief filed
 
Brief Downloads
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If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 19, 2011
Annotated by Ashley Bowman

General Rule:
Under the California Domestic Partner Rights and Responsibilities Act of 2003, there is no basis for affording spouses and domestic partners different rights and responsibilities.

Facts:
Plaintiffs B. Birgit Koebke and Kendall E. French are lesbians who have been in a relationship since 1993. In 1987 Koebke paid $18,000 for a “Regular” (or equity) membership at the Bernardo Heights Country Club (“BHCC”). Regular members are part owners of BHCC and, according to BHCC’s spousal benefit policy, enjoy free unlimited golf privileges for their spouses and children. Guests other than their spouses or children, however, may only golf a limited number of times per year and must pay a fee each time they play.

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:
In 2001 the plaintiffs filed a complaint alleging, among other causes of action, that BHCC discriminated against them on the basis of sex, sexual orientation, and marital status in violation of Cal. Civ. Code § 51, commonly known as the Unruh Civil Rights Act (“Act”). The trial court granted BHCC’s motion for summary judgment, holding that BHCC did not provide different privileges to the plaintiffs than to other unmarried couples.

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:
Whether BHCC’s spousal benefit policy granting certain benefits to married couples but denying them to domestic partners constitutes a facial violation of the Unruh Civil Rights Act on the basis of marital status and sexual orientation discrimination.

Holding:
(1) Under the Unruh Civil Rights Act, treating a domestic partner registered under the California Domestic Partner Rights and Responsibilities Act of 2003 (“Domestic Partner Act”) differently than a spouse constitutes impermissible marital status discrimination; therefore BHCC’s spousal benefit policy violates the Unruh Civil Rights Act to the extent that it implicates the Domestic Partner Act.

(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:
(1) BHCC violated the Unruh Civil Rights Act Violation after the Enactment of the Domestic Partner Act.

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:
The Supreme Court reversed the Court of Appeal’s summary judgment in favor of the defendant to the extent that it implicates the Domestic Partner Act and affirmed the judgment in all other respects, remanding the case for further proceedings.

Concurrence/ Dissent:
Judge Werdegar concurs with the majority’s decision that BHCC’s spousal benefits policy is facially discriminatory in light of the Domestic Partner Act; however, she disputes the majority’s finding that legitimate business interests facially justified BHCC’s spousal benefit policy prior to the Domestic Partner Act. In light of the court’s holding that BHCC’s business interest do not justify discrimination against domestic partners registered under the current law, they cannot demonstrate as a matter of law that these interests justified discriminated against couples in registered domestic partnerships in 2000-2004.

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:
Unruh Civil Rights Act, Cal. Civ. Code § 51:
Relevance: Prohibits all arbitrary discrimination in public accommodations in the state of California. Plaintiffs base their claim on the theory that defendants violated the Act in discriminating on the basis of martial status and sexual orientation.
http://law.onecle.com/california/civil/51.html

California Domestic Partner Rights and Responsibilities Act of 2003, Cal. Fam. Code § 297.5:
Relevance: Grants domestic partners in California the same rights, protections, and benefits and imposes upon them the same responsibilities, obligations, and duties under law as those granted to and imposed upon spouses. The court bases its partial reversal of summary judgment on the conclusion that the Domestic Partner Act prohibits treating domestic partners and married couples differently in public accommodations under the Act.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01...

Beaty v. Truck Ins. Exchange, 6 Cal.App.4th 1455 (1992):
Relevance: The court finds that strong public policy favoring marriage categorically precludes recognition of marital status discrimination under the Unruh Civil Rights Act. In the instant case, the Supreme Court determines that this categorical preclusion no longer applies: as the Domestic Partner Act reflects a strong public policy in favor of treating domestic partnerships like marriages, denying domestic partners protection under the Unruh Civil Rights Act no longer furthers the policy favoring marriage.
http://scholar.google.com/scholar_case?case=15754380734644423510&q=stats...

Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991):
Relevance: Considering a plaintiff’s claim of economic status discrimination against a landlord, the court announces a three-part-test to determine whether a claim of discrimination not enumerated under the Unruh Civil Rights Act or added by prior judicial construction should be cognizable under the Act. Applying this three-part test in the instant case, the Supreme Court finds that plaintiffs’ marital status discrimination claim is cognizable under the Unruh Civil Rights Act given the Domestic Partner Act’s policy in favor of treating marriage and domestic partnership equally; however, the marital status discrimination claim is not cognizable for the period preceding the enactment of the Domestic Partner Act.
http://scholar.google.com/scholar_case?case=11892793459357683951&q=stats...

White v. Davis, 13 Cal.3d 757 (1975):
Relevance: a claim for injunctive relief requires the court to look at the law currently in effect.
http://scholar.google.com/scholar_case?case=917836960989734125&q=stats.+...

TAGS: discrimination, domestic partner, gay, lesbian, marital status, marital status discrimination, public accommodations, sexual orientation discrimination

Annotation by Ashley Bowman