Cal. Registered Partner Rights Advance

State Supreme Court unanimously expands public accommodation law in lesbian challenge

The California Supreme Court ruled on August 1 that registered domestic partners are protected from discrimination under California’s Unruh Civil Rights Law, a statute that forbids discrimination by “places of public accommodation.”

The unanimous ruling came in a Lambda Legal lawsuit filed on behalf of a lesbian couple against a country club in San Diego County, but it broadly applies to all businesses and organizations that serve the public. Jon Davidson, Lambda’s legal director, represented the plaintiffs.

The ruling, expanding the impact of the state’s domestic partnership ordinance, came at a politically volatile time, when opponents of same-sex marriage, reeling from recent developments including a pro-same-sex-marriage decision by a San Francisco Superior Court judge, are posed to circulate petitions for a constitutional banning such marriages and invalidating the domestic partnership law.

The state’s attorney general as well as the marriage plaintiffs have urged the state Supreme Court to hear the state’s appeal of the marriage ruling directly rather than let the case get sidetracked in front of appellate courts.

This opinion, equating registered partnership with marriage for purposes of the public accommodations law, is likely to add considerable fuel to the marriage debate.

The plaintiffs, Birgit Koebke and Kendall French, have been partners since 1993, and registered as domestic partners in 2000 when an earlier version of California’s partnership law went into effect. The state’s most recent version, effective since January 1 of this year, elevates the status of registered partners to the legal equivalent of spouses for purposes of benefits and entitlements under state law, and applies retroactively to all registered partners.

Koebke and French are both avid golfers. Koebke has been a member of the Bernardo Heights Country Club since 1987 and sought, beginning in 1995, to have the club treat French the same way it treated other members’ spouses, extending playing and clubhouse privileges at no extra charge. The club resisted, insisting that its policy applies only to married spouses, and resting its legal position on older rulings that rejected claims for spousal recognition by same-sex couples for workplace benefits and insurance.

The club’s refusal placed French in the position of either having to apply for membership separately or to play as Koebke’s guest, with additional fees and strict limitations on dates she could play.

The women filed their lawsuit in 2001.

The plaintiffs argued that discrimination on the basis of marital status was forbidden by the statute dating back to 1995 when they first sought spousal recognition and that club’s position also constituted sexual orientation discrimination. Their registration as domestic partners and the law’s enhancement this year strengthened their case, they argued.

Judge Charles Hayes of San Diego County Superior Court granted the club’s motion for summary judgment, ruling that none of the legal theories was valid because “defendant did not provide different privileges to plaintiffs than to other unmarried couples.” The court of appeal largely agreed with this ruling, but found that the women proceed if they could show the club did not apply its policy in a neutral way.

The California Supreme Court has ruled that the state civil rights statute’s list of prohibited discrimination is merely “illustrative,” and that similar discrimination is also barred, including sexual orientation bias.

But Justice Carlos R. Moreno’s opinion for the court does not embrace the view that all refusals to recognize same-sex partners as equivalent to spouses violate the statute. Instead, in a carefully nuanced ruling, premised heavily on the domestic partnership statute, Moreno announced that the status of registered partner could be seen as similar in type to other characteristics listed in the law, and discrimination as between married couples and registered domestic partners is thereby prohibited.

It was a minimalist decision, since it does not extend protection to the more numerous same-sex couples not formally registered and it found that such parity was only required as of the law’s enhancement this year. As a result, the plaintiffs’ claim for relief will ultimately be successful, but damage claims cannot date back to 1995, but only January 1, 2005.

This ruling seems tailored to pick up the votes of the more conservative members of the court. Justice Kathryn Mickle Werdegar, a court liberal, dissented from this part of the ruling, arguing that the damage claim should extend back to the date when the women registered their partnership in 2000 and then presented a new request to the club.

Still, the women may be able to claim earlier damages, since they unearthed considerable evidence that the club has not applied its policy neutrally, granting several heterosexual members spousal privileges for their opposite-sex unmarried partners and children of those partners. The lesbian couple also found evidence that the club’s posture toward them was motivated by a fear of appearing too “gay-friendly,” thereby hurting its “family-friendly” image.

The Supreme Court agreed with the court of appeal that if this could be proved at trial, it could provide the basis for a sexual orientation discrimination claim, and that the plaintiffs were entitled to a trial on this issue.

The case was sent back to the San Diego Superior Court, where the plaintiffs will have the opportunity to prove their sexual orientation discrimination claim and obtain relief on their partnership discrimination claim. The club is likely to settle with the plaintiffs since the court’s opinion strongly intimates the likelihood that the plaintiffs will succeed at trial on that claim.

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