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California appellate court orders trial on country club discrimination

A unanimous three-judge panel of the California Court of Appeal has ruled that a lesbian couple is entitled to a trial for their discrimination claim against a San Diego country club that refused to recognize their relationship for membership purposes.

However, the March 8 ruling upheld a decision by a state trial judge to reject all but one of the legal theories the women had advanced.

Birgit Koebke purchased a membership in the Bernardo Heights County Club in 1987 for $18,000. Memberships in BHCC are individual, but a member’s legal spouse and children are entitled to use the club facilities at no additional charge. Koebke’s spouse would also be entitled to unlimited club privileges at no additional charge.

When Koebke became a domestic partner of Kendall French, she asked the club to treat French as a spouse, but was turned down. The club took the position that it was within its rights to only recognize legally-sanctioned traditional family relationships, but the club offered to entertain an application for individual membership from French.

This option did not strike Koebke and French as equitable, especially after some investigation convinced them that the club was allowing some unmarried straight couples to have club privileges for a reduced cost.

In May 2001, Koebke and French filed a complaint, alleging a violation of California’s Unruh Civil Rights Act, which forbids discrimination by places of public accommodation, and of San Diego’s municipal code, which forbids discrimination by businesses that receive any municipal financial assistance. The club denied that it accorded any family-style privileges to unmarried heterosexual couples and argued that it did not discriminate against members’ sexual orientation, merely that it had a right to charge fees on the basis of marital status.

This argument opened up an interesting peculiarity of California law. Unlike some other states, such as New York, that specify “marital status” as a forbidden ground of discrimination, the Unruh Civil Rights Act has a more limited list of forbidden grounds, and does not even mention sexual orientation. The California Supreme Court has ruled that the list of forbidden grounds was merely illustrative, and that the statute was intended broadly to forbid categorical discrimination by businesses and other places of public accommodation. Lower courts have since identified a broad array of forbidden types of discrimination, including sexual orientation discrimination.

In 1991, however, the state Supreme Court ruled that Unruh Act cases had gotten out of hand, and declared that the law applied only to types of discrimination that involved personal characteristics. Since then, numerous lower courts have concluded that the Unruh Act does not forbid “marital status” discrimination.

The San Diego Municipal Code also lacks a direct prohibition of marital status discrimination.

With that precedent in mind, San Diego Superior Court Judge Charles Hayes found that BHCC was not discriminating on the basis of sex or sexual orientation, but only on the basis of the women’s marital status, not a forbidden ground of discrimination, and ruled in favor of the country club.

The appellate court then approved that ruling in a decision in which Judge Gilbert Nares not only pointed to other similar lower court opinions, but also noted that the Legislature had amended the Unruh Act several times, but failed to include “marital status. ”

As to whether “marital status” should be added by interpretation, Nares found that the state’s policy indicated an intention to allow distinctions based on traditional marriage and against same-sex marriage, as reflected in Proposition 22, approved by voters in 2000, which defines marriage as the union of one man and one woman.

The appeals court acknowledged that the failure to include same-sex domestic partners in the Unruh Act has a negative impact on gay people, but noted that if a gay man married a lesbian, he would be allowed to include his wife as a family member for club privileges. Thus, sexual orientation discrimination as such is not directly implicated, the court suggested.

However, if Koebke were able to prove in the upcoming trial that the country club did discriminate on the basis of the sex and sexual orientation of members and their partners, that would demonstrate an intentional violation of the statute.

On that basis, the appellate court found that Koebke and French deserve a trial to determine whether the club allows unmarried heterosexual couples to exercise the privileges denied to the lesbians. The case was sent back to the San Diego Superior Court for trial.

Koebke and French are represented by Lambda Legal and several civil rights groups filed briefs with the court in support of their appeal, including the American Civil Liberties Union Foundation, the Anti-Defamation League, the Women’s Sports Foundation, The California Women’s Law Center, and the National Center for Lesbian Rights.

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Updated 5:17 pm, July 20, 2018
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