Metropolitan News-Enterprise


Tuesday, August 2, 2005


Page 1


S.C. Rules for Lesbian Couple in Bias Dispute With Country Club


By KENNETH OFGANG, Staff Writer/Appellate Courts


A private club violates California’s law prohibiting discrimination by businesses if it fails to extend to members’ registered domestic partners the same privileges it grants to spouses, the California Supreme Court unanimously ruled yesterday.

While the granting of special privileges to married couples by businesses is consistent with longstanding public policy, Justice Carlos Moreno wrote for the court, the Domestic Partner Rights and Responsibilities Act of 2003—operative Jan. 1 of this year—requires that those privileges extend to domestic partners who have registered with the state.

“The Legislature has made it abundantly clear than an important goal of the Domestic Partner Act is to create substantial legal equality between domestic partners and spouses,” Carlos Moreno wrote. “We interpret this language to mean that there shall be no discrimination in the treatment of registered domestic partners and spouses.”

Not Complete Victory

The court ruled 5-1, however, that a San Diego Country Club’s policy of granting special privileges to member’s spouses while denying them to others, including same-sex partners, did not, on its face, violate the Unruh Civil Rights Act prior to this year. Justice Kathryn M. Werdegar dissented from that portion of the opinion.

The ruling came in a suit by Birgit Koebke and her partner Kendall French against Bernardo Heights Country Club. The couple sued in 2001, claiming that the club was discriminating on the basis of sex and sexual orientation.

The club, which offers golf and social activities, has 350 “regular” members, including Koebke, who paid $18,000 each for memberships and pay about $500 in monthly membership fees. The club by-laws allow the spouses of members, along with their unmarried children under 22 years of age living with them, to exercise all privileges of membership, but “guests,” such as French, can only use the facilities once every other month and must pay a fee each time.

The plaintiffs also challenged policies that permit spouses and children, but not “guests,” to charge food to the members’ accounts and permit memberships to be bequeathed to spouses and children only. They also claimed that while the club refused to bend or revise its policies with respect to French, it frequently allowed others, such as members’ grandchildren and the female partner of a male member, to play golf or use the facilities without regard to the every-other-month limitation and without paying a fee.

San Diego Superior Court Judge Charles Hayes granted summary judgment to the club, saying it had treated Koebke and French in the same manner as other unmarried couples and thus did not violate any law. The Fourth District Court of Appeal reversed in part, upholding the club policies on their face but saying the plaintiffs had presented enough evidence to warrant a trial on their claim that the club enforced the bylaws in a discriminatory manner.

Act Construed

But Moreno said the Unruh Act must be read in conjunction with the Domestic Partner Act, which permits adult same-sex couples—as well as heterosexual couples in which one member is at least 62 years of age and receiving social security benefits—to register with the state as domestic partners if they share a residence and have entered into a relationship with involves shared finances and other responsibilities.

The legislation essentially gives domestic partners all rights granted to married couples, other than with respect to state income tax or to benefits conferred solely on married persons by federal law. 

The expressed intent of the Legislature, Moreno noted, was to grant 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.” 

That policy must be implemented, the justice went on to say, by requiring businesses to practice equality of treatment between married couples and domestic partners. Doing so, the justice added, will not deprive Bernardo of the right to implement a “family-friendly environment,” which the club cited as justification for insisting that French be treated as a guest rather than a spouse.

“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,” the justice wrote. “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.”

Werdegar, dissenting in part, said the plaintiffs should be allowed a trial with respect to their claims of discrimination between 2000 and 2004, when California had a less far-reaching domestic partner law. The justifications cited by the club, including the desire to be  “family-friendly,” could not have applied during that period any more than they do now, Werdegar argued.

“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,” the jurist wrote. “As the Unruh Civil Rights Act proscribes discrimination on the basis of sexual orientation....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.”

Jon Davidson, legal director of the Lambda Legal Defense and Education Fund and the attorney who argued for the plaintiffs before the Supreme Court, predicted that the ruling would impact not just country clubs, but commercial lenders, insurance companies and other businesses that have separate policies or fees for married and unmarried customers.

Insurers, for example, will no longer be able to claim that partners who rent an apartment need two separate policies to insure all of their belongings, Davidson told the MetNews, while lenders will have to recognize the couple’s aggregate income in determining how large a loan they qualify for.

John Shiner of Morrison & Foerster, lead counsel for the club, called the ruling a “complete vindication of the club’s position” up until Jan. 1 of this year. He added that “the club will do whatever is necessary in  order to comply with the law,” but that a petition for rehearing is a possibility. 

The case is Koebke v. Bernardo Heights Country Club 05 S.O.S. 3597.


Copyright 2005, Metropolitan News Company