DP act scores first major victory

In its first look at the impact of California's new domestic partner act, the state Supreme Court has signaled its controlling nature on other state laws. 

The court ruled in Koebke v. Bernardo Heights Country Club that the Domestic Partner Rights and Responsibilities Act requires equal treatment for registered domestic partners and married couples under the Unruh Civil Rights Act.

The Unruh Act (Civil Code section 51) prohibits arbitrary discrimination by businesses against categories of persons. Since neither marital status nor status as a registered domestic partner are enumerated categories under the Unruh Act, the case required an interpretation of the law's intent by the court. 

Nevertheless, the court reasoned its way to a ruling that domestic partners registered under the California Domestic Partner Rights and Responsibilities Act of 2003 are the "equivalent of spouses for purposes of the Unruh Act." The court declared that "a business that extends benefits to spouses it denies to registered domestic partners engages in impermissible marital status discrimination."

The court reversed a lower court ruling that had granted summary judgment against the plaintiffs without a trial on the merits. The case will now go back to a lower court for trial.

What was at issue

At issue in the case was a bylaw of the Bernardo Heights Country Club in San Diego, which extended membership benefits to a member's "legal spouse." This permitted members to play golf on the country club's course with their spouses on an unlimited basis without paying additional fees. 

The Supreme Court ruling capped a long struggle by the plaintiff to get equal treatment for her longtime lesbian partner despite this bylaw. 

Plaintiff B. Birgit Koebke, an avid golfer, brought the suit. Koebke purchased a membership in BHCC in 1987 for $18,000. In 1993, she began a lesbian relationship with Kendall French, also an avid golfer. However, in 1995, when Koebke asked BHCC's Board of Directors 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 her request. An appearance before the board in 1998 also resulted in rejection.  

In 2000, Koebke wrote the board again, stating that she and French had "filed domestic partnership" with the state of California. She attached a copy of the filing, repeating her request for equal treatment. The board once again rejected the request. In 200l, Koebke received a letter from BHCC's attorney 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."

After this letter, Koebke filed suit.

The court's reasoning

BHCC's reliance on the state's "strong public policy favoring marriage," proved to be ironic in light of the court's ruling. This was because the Supreme Court based its ruling on the intent of the Legislature, in enacting the domestic partner law, to establish a strong public policy to protect and promote family relationships of registered domestic partners.

The court limited its ruling to the new domestic partner act, which went into effect January 1, 2005. However, it noted that the plaintiffs could seek to prove intentional discrimination for earlier years.

Even the appeals court had noted that there was evidence that BHCC did not apply its "facially neutral policy" in an impartial manner. 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.

The Supreme Court therefore concluded that plaintiffs should be allowed to try to establish that, prior to 2005, BHCC's spousal benefits policy was discriminatorily applied in violation of the Unruh Act.

Just the beginning

Thus, the Supreme Court ruling is just the beginning of the story, not the end. It clears the way for trial of the case on its merits.

In her deposition, Koebke stated that the board's denial of spousal benefits to her partner was actually motivated by its fear that "it would open the flood gates" 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."

Now, she'll have a chance to prove it.

For its part, BHCC has already expressed its intention to argue at the trial that BHCC is not a "business" and therefore not subject to regulation under the Unruh Act at all.

The first of many

Regardless of the final outcome of this case, the Supreme Court ruling bodes well for the rights of registered domestic partners who deal with businesses that afford special treatment to spouses but not to them.

For instance, in its discussion, the court closely examined its earlier decision in a case involving an insurance company that refused to give a gay male couple an umbrella policy for a single premium. The company made such policies available only to married couples. In that 1992 case, Beaty v. Truck Ins. Exchange, the court ruled against the gay couple.

In the Koebke case, the court justified the decision in Beaty on the basis that the new domestic partner act was not then in effect. If Beaty and his partner were registered under the new domestic partner act (and – who knows – they may well be) and the Beaty case were brought today, the court would now rule in their favor. Insurance companies, do you hear what I'm saying?

There are thousands of businesses in California, many of which have afforded various kinds of special rates or benefits to spouses that they denied to registered domestic partners. There are more than 29,000 gay and lesbian couples who have registered as domestic partners under the new domestic partnership act. 

Many steps can be taken in many directions – thanks to this one Supreme Court ruling – and they all lead toward equality.

Joy Fisher is a board member of the Lambda Letters Project.