Koebke v. Bernardo Heights Country Club

Aug. S124179. [No. 2005.] al., v. BIRGIT KOEBKE et Plaintiffs and Appellants,

B. CLUB, Defendant and BERNARDO HEIGHTS COUNTRY Respondent. Counsel Fund, Davidson; John and H. Paul

Lambda Defense Education W. Legal Kondrick for Plaintiffs and Appellants. Sun, Schlosser, Budd; C.

Christine Alan Peter Jordan James D. Eliasberg, Esseks, Mancini; Junowicz, Romana Miranda D. Steven C. Sheinberg, Kors; Deutchman; Michelle Maxie Rheinheimer & Vrevich Geoff Stephens American Civil Liberties Union of and Darin L. Wessel for Northern California, California, of Southern American American Civil Liberties Union Counties, American Civil Liberties Union of San Diego Imperial Lesbian and Gay Rights Project, Civil Liberties Union Foundation and Tom Homann Law Anti-Defamation California League, Equality as Amici Curiae on behalf of Plaintiffs and Association Appellants. Solomon; and Courtney Shannon Minter M. Nancy Nancy Hogshead-Makar; Foundation, Center and Law California Women's Joslin for Women's Sports Plaintiffs on behalf of as Amici Curiae for Lesbian Rights Center National and Appellants. General, Medeiros, General, State Solicitor Manuel M. Attorney

Bill Lockyer, Jr., General, Assistant Greene, Louis Verdugo, Attorney Chief Assistant Tom Cordero, General General, Attorney Benita Deputy and Antonette Attorney on behalf of Plaintiffs Appellants. Amici Curie Sobieski, Foerster, Shiner, John Bergstrom, John R. Rick Morrison & Cohen, Lofton and Katz; Patricia & Frederic D. Levy, Michael Horvitz Defendant and B. Rosen for Jeremy Respondent.

Opinion Plaintiffs, who are domes MORENO, registered a lesbian couple J. club, belongs, to which one of them country tic sued defendant partners, extends to extend to them certain benefits it that the club’s refusal to alleging under marital status discrimination married members of the club constitutes (the Act Unruh Civil Rights Code section known as the familiarly Civil marital status Act). The club obtained summary judgment plaintiffs’ We review granted claim and the Court of affirmed. Appeal discrimination discrimination based on marital status. determine whether the prohibits the Unruh Civil claims are under cognizable We conclude that marital status claims, Act, but, between of such a distinction exists Rights purposes Code, et and other (see Fam. seq.) registered under registered unmarried and individuals. Domestic partners couples (the Act of 2003 California Domestic Partner Responsibilities law, Act), the current of the domestic partnership Domestic Partner version the Act and a business for the are equivalent spouses purposes engages it denies to extends benefits to spouses Therefore, we reverse sum marital status discrimination. in impermissible extent claim implicates in favor of defendant to the mary judgment plaintiffs’ the Domestic Partner Act. other unmarried couples also rights

While the Act may protect under accommodations access to public and unmarried individuals equal married circumstances, between drawn businesses some distinctions that are supported and individuals and such couples marital status reasons do not constitute impermissible business legitimate reject plaintiffs’ we under the Act. Applying principle, constituted impermissible benefit claim that the club’s country to the marital status discrimination on its face effective date of the prior below, time, Domestic Partner Act. As during explained period club’s was business interests. In this country policy by legitimate supported connection, we also alternative claim that the reject facially plaintiffs’ violated the Unruh Civil Act’s sexual orientation Rights against proscription However, discrimination. we with the Court of that under the agree Appeal facts disclosed the record have a viable Unruh Civil may Act claim for of the club’s discriminatory policy. application

I. FACTS Plaintiffs B. Koebke and Kendall E. French sued defendant Birgit (BHCC) Bernardo Club other causes of Heights Country alleging, among action, sex, that BHCC discriminated them on the basis of sexual orientation, and marital status in violation of the Unruh Act. BHCC obtained and, claims, with summary judgment to most of the Court of respect affirmed. We for review. Appeal granted “Because plaintiffs’ petition plain tiff from an order we appeal granting judgment, must summary indepen [s] [] determine examine the record to whether triable dently issues of material fact (Saelzler v. Advanced exist. Group 25 Cal.4th [Citations.]” 1143].) 23 P.3d In de novo review “we Cal.Rptr.2d conducting [107 must view the evidence in a favorable to light losing as plaintifffs] party [citation], submission while liberally construing evidentiary strictly [their] and scrutinizing own doubts showing, resolving any evidentiary defendants] (Id. or ambiguities favor.” We this standard to plaintiffs’] apply connection the evidence submitted in with motion below.

Plaintiffs are who in a lesbians have been since 1993. are They relationship BHCC, also avid Koebke golfers. is member of having purchased $18,000. course, BHCC’s facilities include a membership golf clubhouse and room. The of BHCC is “to and dining purpose golf promote activities, activities, recreational social and maintain club with country facilities for the entertainment and amusement of its members and their BHCC has seven or guests.” membership categories, including “Regular” members who own the club.1 Each of the 350 collectively Regular equity members has an interest in all of the real and other equal ownership property BHCC, assets of and is liable to it for assessments capital operational well as and other members are entitled to charges. dues BHCC’s Regular play at BHCC as often as wish without additional fees. golf any paying Plaintiff Koebke is a member. Regular 1 all except privileges All members “Social” members are entitled to of BHCC’s

activities; may golfing but participate Social members in BHCC’s social activities its activities. the seven in each of benefits BHCC’s membership to its bylaws,

Pursuant [,?zc] legal spouse “to member’s are also extended categories membership (22) residing of twenty-two under age sons and daughters Thus, any qualify- with their spouses members may golf Regular them.” membership additional basis and without paying an unlimited child on ing wish to contrast, members play individuals with whom other fees. usage By are Guests and regulations. under BHCC’s rules as “guests” are designated than no more one and than six times in any year, to more play permitted BHCC. month, they a fee each time play and must green once every pay to time and are not allowed they golf are to each register play Guests required does not club. The registration requirement for food at the charge sign slips and, may sign charge slips unlike guests, they to of members apply spouses food. for members, BHCC’s its married to the benefits granted

In addition spousal death to a member’s to be transferred upon also bylaws permit membership fee, his transfer any or son or without daughter or her surviving spouse contrast, an for membership. By that the survivor is accepted provided BHCC, in and all his or her rights member’s membership, property death. terminate that member’s upon Koebke, after her began relationship she

According French, (the Board) to her to board of directors permit she asked BHCC’s them to golf together her other” to enable “significant French as designate and the the same basis as married The Board couples. rejected request others that non-married significant “decided to continue its present policy Club.” would have no at the privileges Domestic executed a written “Statement of

In August plaintiffs the other be “her stated that she considered in which each Partnership,” the joys life with one another sharing primary companion spouse, At some plaintiffs encountered their life during together.” point, difficulties of San City with the state and with the also as domestic Diego.2 before her Koebke again appeared

According deposition, matter was other” The that it a “significant policy. Board asked adopt letter that was informed committee. Koebke referred to the membership a ‘significant recognition absolutely the “committee opposed [was] 2 they had plaintiffs stated of Directors in November In a letter to BHCC’s Board filing filing. The itself copy and attached a partnership” “filed with the state domestic registered as about when no information in the record not in the record. There is city’s partner Diego scope or about the City with the of San ordinance. other’ and modification of the rules to provide recommend[ed] ” The guest.’ Board recommendation and ‘special adopted committee’s Koebke’s rejected request.

In November Koebke and French wrote a letter to joint BHCC’s Board in which asked the Board they to extend BHCC’s benefit letter, to French. In rights the women “Our dilemma is that we explained: cannot legally marry to the current criteria to satisfy play couple Bernardo . . . the true Heights giving benefits of member- family [Koebke’s] isolated, We feel that our case is ship. in that other unique ‘single’ of the members club do have the stated that option marry.” They considered themselves married and set forth the various had legal steps they taken to formalize their relationship, including “[f]il[ing] partner- in the state of California that each ship recognizes other as legal spouses,” and attached a of the The Board copy filing. rejected in a letter to request Koebke from the Board’s H. Meeks. Meeks wrote: “There president, Gregory is no in the for a provision Bylaws to have non-spousal partner any benefits of and the Board of membership Directors not may unilaterally Mr. change Bylaws. Monson stated the attorney] for procedure [BHCC’s amending Bylaws by vote of the are petition which membership, you free to indicated pursue although you that do not wish to you pursue He that French path.” suggested for her own apply membership. court, which,

In the trial Koebke cited instances in while her rejecting French, to extend its benefits requests family to include BHCC allegedly those granted benefits to or friends of some its heterosexual wife, Joni, members. For even before Michael Wexler married his example, were extended they benefits. Joni Wexler family told Koebke that BHCC knew she and Michael Wexler were not married at that time. The nongolfing member, O’Conner, female of another Jeff partner was allowed full social BHCC, and her privileges with O’Conner even daughter golfed she though was not O’Conner’s O’Conner made daughter. no secret of the fact he was not married to his and was not the father of her partner daughter. Koebke also Burkholder, claimed that Elizabeth a was golfer, allowed to professional play him, with her without her an “coach/manager/friend” assessing green fees Koebke, confirmed BHCC’s arrangement minutes. another According member, Simon, Larry with a nonmember who he played golf neighbor son, was his BHCC apparently represented although members knew were not related. Additionally, minor of members were grandchildren fees, unlimited allowed to with members on an play basis and without despite the absence of in BHCC’s for this. Further- any provision bylaws allowing more, BHCC adult allowed the children and of members to grandchildren to 14 a times instead of the six in the and at play up year, specified bylaws, reduced fees. BHCC also allowed the Rancho green Bernardo School High team to free of to Jeff O’Conner’s boys golf play charge. Finally, according BHCC, declaration, BHCC’s after Koebke commenced her litigation Colton, unmar- told that there were other manager, Buzz O’Conner general and that BHCC ried heterosexual who were allowed play Koebke had not “found that out.” yet Monson, attorney In a letter Thomas BHCC’s Koebke received from stated; member, recognizes a BHCC that “The board directors that marriage and believes favoring

State of California’s strong public policy as a Koebke organization.” BHCC that oriented supports policy family claimed that the first time had ever heard BHCC express this was she or that it was marriage endorsement of the assert policy favoring public her defined in a excluded “family-oriented organization” way Jeff the interview during French. also stated that at no time process O’Conner he he told that BHCC recognized in which became a member BHCC was because it was a strong public favoring “family-oriented marriage O’Conner, would who was married to his female organization.” partner, him. In her not have become a member of BHCC had this been disclosed to benefits to Koebke stated the Board’s denial deposition, spousal French was its fear so “it the flood motivated that if it did would open “gay and BHCC would become known as gates homosexuals [iic]” not “a which a member of Board communicated to her was friendly,” desire direction of the Club.” she

Koebke stated that she also both before and after hostility encountered filed suit a result against BHCC from BHCC members as of her attempts became have benefits extended to her Her sexual orientation partner. BHCC members. One BHCC subject speculation discussion among member, Stillman, men Judy overheard member that say another perhaps how they in his “should on skit show us group get plaintiffs] put [the A do it with and an for the lawsuit.” toys, charge help pay admission price, said similar comment was overheard BHCC member O’Conner. Koebke she was also told that the utilize benefit only way she could BHCC’s spousal she marry register was man. BHCC also her to French whenever required did not exist until after shortly BHCC in a book that played registration and Additionally, Koebke French filed their Koebke became lawsuit. alleged of what were at BHCC over target she believed baseless complaints rules, infractions of like the dress code. club club’s current is the of the Plaintiffs’ second amended which basis complaint, alleged The first cause of action was filed on October 2001. proceeding, sex, sexual that BHCC on basis of had discriminated plaintiffs orientation, the Act. Additional causes and marital status violation of sexual the San Code’s ban on alleged action violation of Diego Municipal discrimination, use of ownership orientation restrictions discriminatory 53, fraud, real instruments violation of Civil Code section property Plaintiffs misrepresentation. sought damages, damages, injunc- punitive tive relief. declaratory or,

Defendant answered and filed a motion for alterna- summary judgment tively, summary Defendant’s motion was Without adjudication. granted. claims of under either the specifically addressing plaintiffs’ Code, Act or the San the trial court “Defendant Diego found that Municipal did not different provide than to other unmarried privileges plaintiffs was entered in favor. couples.” Judgment defendant’s The Court of found that had failed an Appeal to establish Unruh plaintiffs discrimination, Civil Act Rights violation on the basis marital status gender discrimination, However, or sexual orientation discrimination. the Court of also concluded that there was a triable issue material fact Appeal as to whether BHCC had discriminatorily enforced its benefit policy. Therefore, the Court of reversed the to the extent Appeal summary judgment it claim rejected plaintiffs’ that BHCC’s were in a bylaws applied but, manner in all other affirmed the discriminatory respects, judgment. We granted for review. plaintiffs’ petition

II. DISCUSSION Introduction A.

Plaintiffs contend that the Unruh Civil Act a business from prohibits and, therefore, married and treating defendant is couples unequally in a engaging continuing violation certain benefits to by extending married it denies to unmarried Plaintiffs seek both couples. Code, statutory (Civ. relief. forth damages injunctive [setting Koire v. Metro Car Act]; Wash damages violation of the 40 Cal.3d 24, 28, fn. 5 707 P.2d Cal.Rptr. [recognizing availability [219 195] Act].) relief for a violation of the injunctive

For at least some of the in which this violation allege period occurred, has have been with the state they registered as domestic partners. maintain that their claim marital Although plaintiffs status discrimination status, under the Act is not on their domestic their claim dependent partner (White examine for relief us the law in effect. v. injunctive currently requires 757, 773, 94, Davis (1975) 222].) 13 Cal.3d fn. P.2d As 8 533 Cal.Rptr. [120 law, we in the current version of the domestic explain, partnership has made clear Legislature its intention to the status of substantially equalize Therefore, we first examine registered spouses. law, the whether, of the current version domestic partnership in light the same as domestic partners businesses to treat registered requires law, treated the must be under current plaintiffs We conclude that spouses. for the Act. same as spouses purposes damages for including also entitled to they damages,

Plaintiffs maintain are law. partnership to the effective date of current the period prior Therefore, denial of the to determine whether BHCC’s it becomes necessary marital status discrimi- constituted impermissible benefit that BHCC’s did policy this earlier of time. We conclude nation during period not, face, discrimination or its either marital impermissible constitute the Act. Court agree sexual orientation discrimination under But we sufficient evidence of discriminatory plaintiffs presented Appeal to trial on discriminatory application application proceed theory. Act, Partner Treating

B. Under Unruh a Domestic Rights Civil Than a Under the Domestic Partner Act Registered Differently Marital Status Discrimination. Spouse Constitutes Impermissible claim relief the law Plaintiffs’ us injunctive apply requires Davis, 773, (White v. in effect. fn. 8 ‘Relief Cal.3d currently [“ futuro, and the to must be determined as of right it injunction operates American Fruit ”], the date of decision an court’ appellate quoting 513, v. Parker Growers 23].) P.2d We must Cal.2d [140 determine, therefore, whether BHCC the Act currently by denying violates who are as domestic the same benefits it plaintiffs, partners, extends to married couples. The Domestic Partner Act

1. statutes, current denominated by The version of the domestic partnership Partner Legislature California Domestic Responsibilities 2.)3 (Stats. ch. Act of 2003 became effective 2005. The January Partner Act and some Domestic same-sex permits couples opposite-sex who share a which one both individuals are over the age residence, with the common file a “Declaration of Domestic Partnership” (§ 297.) of State. Secretary grants rights,

Section 297.5 “the same protections, them “the same obligations, and benefits” imposes responsibilities, upon law, statutes, and duties under derive from administrative whether 3 references, Family statutory specified, are to the Code. All further unless otherwise rules, law, regulations, court government policies, common or other any law, or provisions sources of as are to and granted imposed upon spouses.” 297.5, (§ (a).) subd. These and are rights extended to current responsibilities domestic former partners, and partners surviving partners. 297.5, (§ (a)-(c).) subds.

The of the Domestic Partner Act purpose is set forth in uncodified portions 297.5, of section in which the Legislature declares: “This act is intended to California move closer to help fulfilling of inalienable promises rights, and liberty, contained in equality Sections 1 and 7 of Article of the California Constitution all by providing and committed caring couples, regardless orientation, their gender sexual to obtain opportunity essential rights, and protections, benefits and to assume corresponding responsibilities, obliga- tions, and duties and to further the state’s interests in stable and promoting lasting and family relationships, Californians from the economic protecting abandonment, and social ones, consequences the death of loved separation, 2003, (Stats. 421, 1, and other life crises.” ch. (a).) subd. The Legislature § has found “that discrimination, social and despite longstanding economic lesbian, many committed, and bisexual gay, Californians have formed lasting, and sex,” caring with relationships persons same and that “[expanding and rights creating responsibilities registered domestic would partners further California’s interests in promoting and family relationships protecting crises, members family life and during would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the require- 1, ments of the California (Stats. Constitution.” (b).) ch. subd. § Act, furthermore, Section 15 of the Domestic Partner that the requires act be “construed in order to liberally secure to eligible who register as domestic benefits, full partners range legal rights, as protections well as all of the other, responsibilities, obligations, duties to each children, state, their to third and to the parties as the laws of California extend to and (Stats. impose upon spouses.” ch.

Section 297.5 effectuates the intent legislative broadest terms using to, possible grant registered domestic the same impose upon, rights as responsibilities spouses areas of laws whether specified current, are former or surviving domestic For partners. example, pursuant 297.5, (c), section subdivision registered domestic “surviving partner, the death of the [upon] other all granted the same and is partner,” rights to all the law, same subject from whatever source in the responsibilities, those to and “granted a widow or a imposed widower.” section upon Similarly, 297.5, (d) subdivision states: “The rights and obligations to a child of either of them shall be the same respect

839 former or obligations surviving of rights those of The spouses. as of them shall be to a child of either domestic partners respect registered (e) requires Subdivision those of former or surviving spouses.” the same as to, or that, rely California refer the extent that of law adopt, provisions “[t]o law would require law” that this reliance federal . . . federal upon “registered to be than differently spouses, treated domestic partners law recognized treated law as if federal shall be California partners 297.5, (§ law.” in manner as California the same domestic partnership (e).) subd. discrimination, (f) do- “Registered subdivision provides:

With respect shall the same nondiscrimination rights regarding mestic have partners Moreover, 297.5, (f).) with one (§ subd. spouses.” excep- those provided (h) care tion subdivision eligibility long-term plans, prohibits pertaining from or against “any person California any agency discriminating public on the is a rather ground registered partner the couple person or that the domestic partners than spouse couple registered [consists of] 297.5, (§ (h).) rather than subd. spouses.” Legisla

It is clear from of section and the language both 297.5 ture’s statements intent that a chief of the Domestic Partner goal explicit Act is to married registered status equalize It is in intent that we must determine whether Unruh light couples. Act BHCC married benefits it denies to granting from precludes Partner Act. as domestic under Domestic We persons that the Act conclude does.

2. The Unruh Civil Act Rights 51, (b) Code “All within the Civil section subdivision states: persons sex, race, state and no what their jurisdiction of this are free and matter equal, color, medical condition are religion, ancestry, national or origin, disability, accommodations, facilities, entitled to the full advantages, privi- equal kind in all whatsoever.” or services business establishments of leges, every 1959, Act an version of Civil Enacted Unruh Civil amended 1897 Code section 51 that declarative of common law doctrine requiring was “to serve all on reasonable terms accommodation customers places public without discrimination and ... kind of service product provide (In (1970) re Cox 3 to be from their economic role.” reasonably expected (Cox).) Cal.3d 212 474 P.2d Cal.Rptr. 992] [90

Seminal this court Act construing scope decisions of enumerated categories that its were not confined to the concluded protections rather than restric in the but that were “illustrative categories statute these Act a business (Cox, from tive.” Cal.3d prohibits [the a customer because of bis association excluding with another person Point, unconventional Marina (1982) Ltd. v. son 30 Cal.3d appearance]; Wolf 640 P.2d Act an Cal.Rptr. prohibits apartment [180 115] [the owner from rent child]; an to a with a refusing apartment minor family O'Connor v. Green Village Owners Assn. 33 Cal.3d 790 Cal.Rptr. [191 a condominium from prohibits development restricting resi 320] [the 18].) dence to over We also concluded that in the persons Unruh Civil enacting Act, the intended ban all Rights Legislature forms of discrimina arbitrary Cruz, (Isbister tion in accommodations. v. Club public Boys' Santa Inc. of (1985) 40 Cal.3d 707 P.2d Act is Cal.Rptr. [219 212] [“The this state’s bulwark against arbitrary discrimination in of places public accommodation”].)

We revisited these conclusions in Harris v. Capital Growth Investors XIV 52 Cal.3d 1142 {Harris). 805 P.2d In the Cal.Rptr. [278 873] so, we created a process doing analytic framework for determin three-part discrimination, whether a future claim ing involving category construction, enumerated in the statute or added by prior judicial should be under the Act. cognizable

Harris involved claim women by assistance that a receiving public landlord’s policy tenants to have requiring prospective in gross monthly comes to or than three times the rent equal greater for an charged apartment (the minimum income policy) constituted economic status discrimination and was barred the Unruh Civil Act. The by that the plaintiffs argued defendant’s excluded policy who could the rent but were persons unable pay to meet the minimum income maintained policy. They were entitled to a trial to determine whether the constituted arbitrary discrimination (Harris, under the Act. 52 Cal.3d at supra, We held that the Act did not include within its ambit claims of economic status discrimination because economic status is different than the fundamentally either enumer categories ated in the Act or added by judicial construction. conclusion,

In we affirmed the articulated reaching principle illustrative, our earlier decisions that the Act’s enumerated are categories rather than restrictive. inCox the Unruh Act has been “Beginning construed to to several classifications not in the statute. apply expressed We generally Legislature is aware presume appellate [Citations.] [f] court decisions. It has not taken action to overrule these specific [Citations.] Moreover, cases. has amended the Act several times in the Legislature (Harris, since 20-year Cox was decided.” 52 Cal.3d at period supra, [citation] 1155-1156.) pp.

However, our examination of the to our legislative response prior decisions led us to conclude that the had not in the Legislature acquiesced intended to ban that the Act was in those decisions

broad set forth proposition about our “Notwithstanding language discrimination. arbitrary all forms has continued the Legislature and ‘stereotypes,’ discrimination’ ‘arbitrary in the Unruh of discrimination categories attention to the specified close pay Thus, specified continued emphasis . . the Legislature’s Act. . ‘arbitrary,’ the words (without adding in the Act of discrimination categories ‘unreasonable,’ reflects the continued to its or similar language provisions) (Harris, supra, in its categories proper interpretation.” of those importance 1158-1159.) Cal.3d at pp. that the ban on arbitrary therefore concluded Act’s

Having we categories, of the enumerated the continued importance was qualified could, nonetheless, extended to claims of be considered whether language history discrimination “in of both light economic status of the competing Act and on its enforcement the probable impact (Harris, Cal.3d at on us urged parties.” interpretations 1159.) p. First, a to answer this analysis question.

We devised three-part difference be we discerned an essential the reviewing statutory language, those enumerated categories economic status and both Act’s tween that their common element was added construction. We found by judicial to economic characteristics—a person’s “involve as personal opposed (Harris, supra, attributes, beliefs.” origin, personal geographical physical of the Harris Thus, whether a 1160.) the first inquiry 52 Cal.3d at p. prong a new claim of under the Act is based on classification involves characteristics. personal we asked in Harris whether

Second, a business interest justified legitimate minimum minimum income income We found it did. “The policy policy. or terms. or effect from stated price payment is no different its purpose terms, the benefit of Like it seeks to obtain for a business establishment those of the In with the consumer: full bargain payment price. pursuit its and direct economic legitimate landlord has object securing payment, sex, tenants, their interest in the income level of prospective opposed (Harris, supra, race, beliefs or characteristics.” other religion, personal 1163.) Cal.3d at p.

Third, claims allowing we considered the consequences potential “two under the Act. We perceived economic status discrimination to proceed from that would follow likely plaintiffs’ adverse significant consequences (Harris, 1166.) 52 Cal.3d at p. of the Act.” proposed interpretation First, “in a multitude of microeconomic we believed it would involve courts make” the reasonableness we are ill regarding decisions equipped their tenants unable to pay used landlords to screen by criteria Second, (Ibid.) rent and on time regularly throughout tenancy. permitting tenants to such criteria on a basis prospective challenge case-by-case might income, induce landlords to abandon such neutral criteria as to all applicable characteristics, tenants of their prospective regardless and use sub- personal criteria that jective might “disguise kinds of thereby promote very race, sex, invidious discrimination based on and other traits that the personal (Id. Unruh Act Therefore we concluded that the prohibits.” (Ibid.) minimum income did not violate the Act.

3. Application Analysis Harris Marital Status Plaintiffs’ Discrimination Claim Both rely BHCC on framework set forth in analytic Harris to determine whether marital status discrimination claim is plaintiffs’ under the Act.4 We now consider each of cognizable Harris’ s three prongs this issue.

a. Does Marital Status Involve Personal Characteristics As to the first of the Harris contend that marital prong analysis, plaintiffs status involves a characteristic like personal those covered categories already BHCC, however, the Act. contends that marital than status is more nothing status conferred the state that does not involve character- legal personal istics. We agree plaintiffs. Harris,

We did not define the characteristic” in but phrase “personal that, minimum, we indicated at it both the enumer encompassed categories ated in the Act and those added to the Act construction. categories by judicial (Harris, Thus, 1160-1161.) 52 Cal.3d at supra, the list would include pp. “sex, race, color, religion, national or medical ancestry, origin, disability, Code, 51, (Civ. (b), (c)), condition” subds. and unconventional dress or § (Harris, status and sexual family 1161) orientation appearance, supra, p. (Ibid.) but not “financial status or What those have in capability.” categories are, not, common is not since some while others are but that immutability, traits, conditions, decisions, or choices fundamental to a they represent 4 they alleged BHCC contends that because are partners, have not marital premise argument status discrimination under the Act. The of this is marital status only discrimination refers to differences in treatment of married vis-a-vis unmarried disagree. We individuals. A business that decides which benefits are to be extended to members necessarily are public based on whether married discriminates both Employment Housing (Cf. Smith v. Fair & Com. couples. unmarried individuals and unmarried 1143, 700, (1992) Cal.Rptr.2d 12 Cal.4th 1156 P.2d of the phrase 913 “marital [51 909] [use (Gov. prohibition against Employment Housing status” in discrimination in the Fair and Act Code, (a), (b)) couples].) subds. includes both unmarried individuals and unmarried § Domestic are a of unmarried couples. subset (Id. economic self-definition. beliefs and identity,

person’s [unlike status, “a characteristics like person’s enumerated involve categories personal beliefs”].) and attributes origin, personal geographical physical standard, Under this marital is more like the existing categories status it The kinds of intimate which the Act than is to economic status. applies forms and the decision whether to formalize such relationships person Indeed, held and core values. beliefs relationships implicate deeply personal defined “a relation out of a civil contract arising itself is as marriage personal whether (§ 300.) between a man and a woman . . . .” the decision Similarly, to enter into a domestic is motivated values partnership personal beliefs. This was in its characterization of recognized by Legislature point committed, these Domestic Partner Act as relationships “lasting, and undertaken two individuals to “share lives caring,” together, partici- in their communities raise children and care pate together, many [for] [to] (Stats. for other members ch. dependent family together.” (b).) subd.

Thus, contrary BHCC’s the decision to or to enter into argument, marry a domestic is more than a in the legal status individuals partnership change cases, who have entered into or domestic In both marriage partnership. of the decision consequences is creation of a new unit with all of family commitment its in terms of as well implications legal rights personal obligations. Truck Ins. Beaty Harris set v.

BHCC also relies on the forth in analysis Exchange (Beaty). Beaty is Cal.App.4th Cal.Rptr.2d [8 593] the only decision that has considered whether marital status dis appellate issue, Beaty crimination under Act. On the first found cognizable prong Harris, status, that marital like the economic status involved in is a category noted, in Harris we the Act was intended to reach. As simply determined that economic status was different than the fundamentally catego ries enumerated in the Act as a reason to exclude it from under the coverage (Harris, Beaty, 1161-1162). 52 Cal.3d at pp. Similarly, Court of concluded that the Appeal strong public policy favoring marriage under the of marital status discrimination categorically precluded recognition Beaty Act. Since critical to the it at we discuss some parties’ arguments, length.

Beaty involved a male The two lived 18 together years men had for couple. life, and had taken various to create a common legal including jointly steps assets, residence, of their and one owning naming their them many among another as each other’s for estate and life insurance beneficiary primary and The defendant insurer had issued them homeowners joint purposes. 844 umbrella refused to issue them an policy insurance but

automobile policies, to married only such were available for a because single policies premium sued, 1458.) The 6 at (Beaty, p. Cal.App.4th couples. the umbrella constituted that the defendant’s refusal to issue policy alleging the Act. in violation of and marital status discrimination sexual orientation the defendant’s was dismissed after the trial court sustained Their action without leave to amend. demurrer that “future expansion

The Court of cited Harris for proposition Appeal ensure a result should be categories carefully weighed of prohibited at 6 (Beaty, supra, intent. legislative Cal.App.4th consistent [Citations.]” Harris, 1462, we the court observed: “In of omitted.) light fn. Accordingly, p. ‘marital status’ as an additional decline invitation ... to include plaintiffs’ in this state discrimination. There is strong policy category prohibited [citations], and in the context here presented policy favor of marriage (and in the case of an unmarried heterosexual couple, would not be furthered thwarted) marital status by including among prohibited would be actually courts, whether not the to determine It is for the categories. Legislature, in this case ‘deserve the such as that involved nonmarital relationships ” statutory protection sanctity marriage union.’ afforded {Id. 1462-1463.) pp. marriage. there is a strong public policy favoring

Unquestionably, 1, (1983) 34 Cal.3d (Norman Ins. Bd. 9 Appeals v. Unemployment [192 134, “not based 904].) P.2d This serves interests specific 663 Cal.Rptr. policy rooted The ‘is favoring marriage on anachronistic notions of morality. policy an basis for the fundamen defining in the institutional necessity providing in organized society.’ tal relational rights responsibilities persons 339, 341.) married (Laws (Iowa 1983) 332 N.W.2d Formally v. Griep one and bear toward are granted significant rights important responsibilities without marriage.” those who cohabit another which are not shared P.2d (1988) Cal.3d 275 758 (Elden Cal.Rptr. v. Sheldon [250 582]; Cal.Rptr. Marvin v. Marvin 18 Cal.3d see [134 itself . . . society depends P.2d that “the structure [observing 106] the institution of marriage”].)5 upon favoring marriage. interests served

There are also practical benefits, a marriage entitlement to rights For of determining purposes 5 promotes the marital policy that fosters policy favoring marriage is an affirmative The degree legal recognition protection incompatible with some relationship and is not Marvin, 683-684; supra, 18 Cal.3d at e.g., Marvin v. (See, couples and individuals. Legislature in which the Beaty, supra, Cal.App.4th are scores of statutes 1463 [“There legislation”].) in antidiscrimination has included ‘marital status’ (Norman v.

license a verifiable method of “readily proof.” provides Bd., contrast, Ins. Unemployment Appeals 10.) 34 Cal.3d By claim for such and benefits made an unmarried rights by couple presents “numerous of and difficulties of the regarding standards problems proof’ and the that create a for of nonmarital depth stability relationship potential Sheldon, see Elden v. (Ibid.; “intrusions into and association.” rights privacy supra, 275-276.) Cal.3d at A interest the related pp. supporting public is to minimize the risk of third who policy marriage promoting parties (Harrod v. Southwest services or benefits from loss or fraud. provide Pacific Airlines denial Cal.App.3d Cal.Rptr. [upholding [173 68] of cause of action for death to wrongful surviving partner under Code former of Civil Procedure section 377 because “an action couple based on a meretricious relationship presents greater problems proof of fraudulent an dangers claims than action by spouse putative spouse”].)

These considerations cannot denial policy justify of Unruh Civil to domestic whatever their to other protection partners, application unmarried individuals and meet To who the couples. couples requirements a domestic under the Domestic Partner Act and establishing who partnership law, have registered under that has Legislature granted legal recognition both and in terms of the comparable marriage procedurally substantive to and rights obligations granted which are imposed upon partners, considerations to those that supported by similar favor policy marriage. 297.5, Thus, Act, (§ (a).) subd. under the Partner Domestic domestic partners, like married have been “[fjormally “granted couples,” significant rights bear toward one another which are important responsibilities not shared” by (Elden who cohabit or who have not as domestic v. partners. Sheldon, supra, 46 Cal.3d at p.

Furthermore, as in the next consider explained practical part, ations served by favoring are now also policy marriage promoted Domestic Partner Act. The declaration of domestic partnership provides readily verifiable method of for services and proof determining eligibility benefits. the mutual Additionally, undertaken obligations part ners, to those of comparable minimize economic risk to third spouses, any Thus, that extend such services and parties benefits domestic partners. creating has also created a partnerships, Legislature policy such similar favoring to the partnerships favoring marriage. has made it clear that an

Additionally, Legislature abundantly of the Domestic Partner Act to create goal substantial important legal above, between domestic As noted equality subdivision spouses. (f) of section 297.5 states: shall have the same “Registered 846 We inter- those to spouses.” nondiscrimination as provided

rights regarding in the that there shall be no discrimination to mean language pret reading This comports domestic spouses. treatment of registered partners be “shall Partnership statement that the Domestic with the Legislature’s as register who eligible in order to secure to couples construed liberally benefits, as range legal rights, protections domestic partners full other, to each and duties all of the responsibilities, obligations, well as state, children, the laws and to the their to third parties of California 2003, ch. italics (Stats. extend to and impose upon spouses.” § Act issue to the Unruh Civil added.) presented Of relevance special here, obligations found that rights has Legislature expanding the bases of sex and “would reduce discrimination on domestic partners with the of the in a manner consistent requirements sexual orientation 421, 1, (b).) (Stats. ch. subd. California Constitution.” action, we conclude the policy of this legislative In light domestic denying registered partners is not served marriage favoring the Act. To the contrary, permitting from under discrimination protection them by denying to discriminate against business the comparable public it violates benefits or services extends spouses that, consistent with We conclude favoring partnership. against registered the Harris analysis, first prong that falls of discrimination favor of married type couples Act. within the ambit of the Interests

b. Business Legitimate status that the Act did not ban marital for holding As a further ground discrimination, analysis of the Harris invoked the second Beaty prong umbrella it coverage the insurer’s denial to found that (See business interests. was justified by legitimate to married couples issued Likewise, BHCC, Harris, 1162-1165.) relying 52 Cal.3d at pp. supra, married benefit to couples that its restriction of Beaty, also argues serves business interests. legitimate Harris, found that the Beaty “legal

In its discussion of the second prong attendant a marriage” upon of interest and shared unity responsibilities coverage such to the insurer providing minimized the economic risk both determin reasonable means of a fair and married and “provide[d] couples at (Beaty, supra, Cal.App.4th or benefits.” for services ing eligibility relation contrast, that the could conclude 1464.) reasonably an insurer By p. necessary the assurance of permanence unmarried “lacks of an couple ship in a umbrella joint policy.” risks insured with confidence the assess discussed, echoed in other decisions have been these same concerns {Ibid.)As and services. (E.g., claims to such benefits rejecting Sheldon, 275-276; Norman v. Unemployment Elden v. supra, 46 Cal.3d pp. Bd., 9; Southwest Ins. Harrod v. Appeals supra, Cal.3d at p. Pacific Airlines, Cal.App.3d concerns, however, These do not to domestic registered apply that, like marital domestic a status partners. Registered partners occupy legal status, formalized, 297, 298, 298.5, (§§ 299.) and verifiable. The public, declaration of domestic that domestic are registered partnership partners (§ (b)) to file with the of State subd. an Secretary provides required verifiable method of whether a is in a easily determining registered couple Therefore, domestic a business is no to “under longer partnership. required take a ‘massive intrusion’ into lives couples’] private [citation] [the [and] (Beaty, into their and and sexual emotional economic ties” inquire fidelity 1465) supra, Cal.App.4th to determine whether these unions a p. possess sufficient assurance of and of interests to extend permanence legal unity Moreover, benefits formerly reserved for because the substantive spouses. to rights domestic are responsibilities granted imposed upon the (§ 297.5), same as those to and granted a business imposed upon spouses extending such benefits would have the same assurance loss or fraud against that it would have in the case of spouses.

In of light this we find the various business interests analysis, unpersuasive BHCC are claims served its denying benefits policy family membership but married any BHCC claims that that benefit couples. extending facilities, “members’ friends” lead to might overuse of its create a disincen- tive for such friends to for and would its apply discourage membership “legitimate goal of a creating environment the family-friendly by welcoming French, however, immediate of married members.” is not family simply friend, Koebke’s but her registered domestic with partner, rights respon- sibilities similar to that of a benefit to her spouse. Extending spousal would not create the on the that BHCC to envision. stampede fairway appears

BHCC also French the benefit contrib argues denying utes to the a creation of environment.” While a “family-friendly creating interest, environment be family-friendly a business may legitimate policy is not served when a business the domestic against discriminates partner Rather, one of its members. so business violates doing, which, favoring marriage, like partnerships policy favoring seeks to reduce promote families as well as discrimination based protect that, and sexual orientation. we while gender conclude Accordingly, environment” be a business promoting “family-friendly may legitimate interest, that interest is not furthered families formed by excluding through domestic partnership. Claim to Proceed Consequences Allowing

c. Plaintiffs’ marital of Unruh Civil category status as Lastly, rejecting purposes test, of the Harris Beaty the third which prong protection, applied that will flow” from consequences plaintiff about “the inquires permitting (Harris, Unruh Cal.3d at p. with a novel Act claim. proceed Beaty that the with allowing proceed concluded consequence plaintiffs that all be de facto their marital status discrimination claim “would would be treated as a married unit” in of “the derogation strong policy marriage.” (Beaty, supra, state italics favoring Cal.App.4th case, however, their added.) claim allowing In this proceed would have this adverse because our affects ruling only not consequence, Moreover, all conse couples. partners, Act to quence interpreting prohibit would have the effect of intent positive effectuating Legislature’s create legal in the Domestic Partner Act to substantial

expressed equality between and registered spouses. partners

d. BHCC’s Other Arguments that section no on whether the Unruh Civil BHCC has argues impact 297.5 It Act bars contends that Rights against partners.6 discrimination section extends to such only rights responsibili- 297.5 domestic partners and, are ties as to and are because granted imposed upon spouses spouses Act, under the neither are domestic This misses protected partners. argument Harris, discussed, the As with the first of discrimina- consistent point. prong tion a of discrimination that falls within the against domestic partners type BHCC, Nonetheless, following Beaty, argues ambit Act. special of the should courts marriage preclude considerations practical unique Act favors from the discrimination that married interpreting prohibit rationales do not over unmarried ones. As we have these couples explained, between married and domestic justify couples partners regis- discrimination tered under the Domestic Partner Act. view the that the inclusion Beaty

BHCC embraces the court by expressed in other than the Unruh Civil marital status antidiscrimination statutes to the that the failure to add that category Act shows Legislature’s within intent discrimination not be included the a that such implies legislative however, the {Beaty, supra, Cal.App.4th Act. 6 Historically, scope the statute Act has been determined both amendments by legislative 6 claims, judicial portions In these asks that we take notice of connection with BHCC (Ketchum (2001) v. Moses request. 24 legislative history grant of section 297.5. We BHCC’s material, 1122, 1135, 735].) Nothing in this 1 17 P.3d Cal.Rptr.2d Cal.4th fn. [104 however, analysis our our conclusions. affects alters decisions, seen fit to judicial continuously has not Legislature (See the Act new to include forms of discrimination.

“update” prohibited Harris, Moreover, 1154—1159.) we are not concerned Cal.3d pp. at this but with marital status discrimination the discrimina- point generally tion Domestic Partner The against domestic outlawed Act. Legislature’s failure to amend the Act to such prohibit discrimina- expressly v. Anderson tion is a barometer intent. (People weak particularly legislative 368].) 50 P.3d Cal.4th For the same Cal.Rptr.2d [122 reason, that, we also BHCC’s only related because the reject argument specific antidiscrimination in section 297.5 involves discrimina- provision 297.5, (§ tion against (i)), subd. by public agencies did not to ban Legislature against intend domestic partners in No public accommodations. declaration is specific legislative required for this court to infer from the legislative statements of intent accompany- ing Domestic Act an Partner intent domestic partners should not be discriminated married favor of public accommodations. that, Act,

BHCC also contends in order to under the qualify protection a must a category involve class under federal protected equal law. protection claim, In a related BHCC argues categories enumerated have in common that they encompass group broadly wider But stigmatized society. Harris did not hold that classes federal only under protected equal protection Act, law were under the did we worthy nor protection require history stigmatization in order to the ambit bring category within of the Act.

Moreover, discrimination based on marital status dis implicates who, crimination homosexuals against Legislature as the in the recognized Act, Domestic Partner have been to discrimination. For subject widespread 297.5, in its example, to section the findings respect Legislature notes lesbian, that gay, and bisexual Californians have established commit “lasting, ted, and caring relationships” social and economic despite “longstanding (Stats. discrimination.” ch. (b).) the subd. Additionally, Legislature one declared that by served the purpose expanding rights (Ibid.) domestic partners is to combat such discrimination.

Citing (c) subdivision of Civil Code section BHCC also that its argues the policy passes muster under Act it to because all unmarried equally applies Act, across the couples individuals enumerated it categories e.g., race, without etc. applies equally regard religion, nationality, gender, (c) Subdivision be “This section shall construed to confer provides: any not on a that or limited right privilege is conditioned law or that is person color, race, sex, alike to applicable ancestry, persons every religion, was argument or medical condition.” A similar origin, disability, national “the Act was not intended to create made in which found that Unruh Beaty alike to of insurance access so insurer’s long applicable right color, race, sex, (Beaty, etc. religion, all regardless persons [Citations.]” 1463.)7 at the defendant’s denial of umbrella Because supra, p. Cal.App.4th in was not on the enumerated categories based policies Act, the Court of concluded the had not been Appeal “singled 1463.) treatment.” (Beaty, p. out for arbitrary that the enumerated Beaty suggest only If meant to observation can a claim unlawful in the Act a basis for discrimina categories provide Act, Beaty elsewhere tion under the observation was inaccurate. As declined that our decisions acknowledges, in Harris we to overrule prior the Unruh Act to classifications not the statute.” “extended expressed Harris, Thus, we cited (Beaty, supra, 6 Cal.App.4th that relied for the limited statutory by Beaty showing language purpose was categories continued on the enumerated Legislature’s emphasis arbitrary evidence that it did not intend for the Act to ban all forms of (Harris, 1158-1159.) 52 Cal.3d at We did not hold discrimination. pp. of the Act include that this foreclosed legislative activity judicial expansion cautioned the addition of new categories. categories new We merely {Ibid.) As would have to be consistent with intent. discussed legislative above, the Act no goes extending protect registered against farther than the mandate discrimina implied legislative express found in Domestic Act. tion Partner

We discrimina conclude the Unruh Civil prohibits Act in tion under the Domestic Partner partners registered Therefore, extent marital status favor of married to the couples. plaintiffs’ Act, BHCC is discrimination claim Domestic Partner implicates judgment. entitled summary 7 (c) in the currently appeared Civil Code section 51 language The found in subdivision of 4424.) (Stats. In p. of section ch. prior second sentence of a version 51. Point, Point, (Marina Wolfson, supra, Ltd. v. Marina meaning we declared its was “obscure.” Harris, however, Legislature 733.) significant had not we deemed it that the p. Cal.3d at In section, (Harris, supra, categories to it 52 Cal.3d repealed that but continued add to

altered 1158-1159), to all policy applied equally minimum at issue pp. at and noted that the income was policy cited as further evidence that that categories. of the enumerated We this members (Id. 1169.) p. the arbitrary for of Act. purposes not Act,

C. Prior to the Domestic Partner BHCC’s Spousal Enactment of Not Constitute Either Marital Policy Impermissible Did Benefit Status Discrimination or Sexual Orientation Discrimination on Its Face, but Still to That May Policy Seek Prove the Plaintiffs the Unruh Act as Them. Violated Applied relief, In addition to seek for viola- damages seeking injunctive plaintiffs tions Act of the Unruh Civil “for Rights being subject discriminatory date treatment the effective by many years prior” [BHCC] Therefore, whether, Domestic Partner Act on 2005.8 we address January this earlier BHCC’s denial the during period, of benefit spousal constituted the impermissible marital status discrimination under Act. We that, face, conclude on its did not violate the also policy Act. We address that, face, on reject alternative claim its BHCC’s plaintiffs’ policy However, violated the Act’s of discrimination. sexual orientation prohibition that, we with the Court agree of while BHCC’s did not on Appeal its policy face discrimination, either constitute marital status or sexual orientation sufficient evidence of was adduced unequal application policy by allow plaintiffs to them to on an proceed unequal application theory. noted, Beaty found that the As favoring marriage policy precluded recognition marital as a status under Unruh protected category Civil Act. We need Rights not decide whether that statement is correct categorical discrimination, because even if we assume that marital status outside the Act, Act, context of the Domestic Partner cognizable under such discrimination would nonetheless be if by permissible justified “legitimate (Harris, business supra, interests.” Cal.3d at test to Applying us, the case before we conclude that business interests legitimate facially justified BHCC’s benefit spousal before the effective policy during period date of the Domestic Partner Act.9 argues

BHCC that its its benefit goal adopting spousal was to policy strike a balance between concerns. BHCC wanted to attract competing maintain members while overutilization of its facilities. BHCC preventing could have reasonably concluded that these would be goals best served by certain extending benefits to families created but through marriage not individuals. BHCC could also concluded have extending benefits to unmarried individual would have led spousal members 8 portions plaintiffs’ applicable Whether claim are haired statute limitations for Unruh Civil express opinion subject. actions is not before us and we no 9 adoption justified Since we conclude that BHCC’s of its benefit was interests, legitimate business discuss the third Harris we prong, consequences need (Harris, allowing 1165-1169.) plaintiffs’ proceed. claim to Cal.3d pp. of such created a disincentive for the friends to overutilization of its facility, club, a the and created constant to own in buy memberships members their an effect on of the course that have had adverse may influx of casual users environment, to extent that bemay of a the the creation family-friendly Act, Partner a marriage interest. Prior to the Domestic business legitimate BHCC could distinguish the clearest method which license presented some, others, and extend benefits to but not to its members in order to among connection, to obligated In BHCC was not larger achieve its this goals. cohabitation, methods, such or of allowing proof other as requiring employ to and more intrusive than a license marriage that were less reliable arguably Of of its members’ ascertain the nature and unmarried stability relationships. unmarried, course, to finer distinctions than married and BHCC was free cut so, of degree even it have resulted in some though but its failure do may like did not its face constitute plaintiffs, unfairness to committed couples marital status discrimination. impermissible the benefit for we conclude that BHCC’s

Accordingly, not, face, Partner Act did on its constitute the Domestic period prior the Civil Act.10 marital discrimination under Unruh impermissible 10 registered partner the statutes Although plaintiffs partners were domestic under domestic 1999, 588, 2; 1, (see January ch. Stats. January § in effect between 2000 and Stats. 893, 3), period ch. not base their marital status discrimination claim for they do § Rather, bars status time on statutes. assert that the Act marital those distinguish, in its generally. plaintiffs argue Nor that BHCC could not couples unmarried do above, registration those legitimate between under pursuit the business interests articulated Werdegar’s partner marriage license. Justice significantly weaker domestic statutes and illogical reject legitimate argues BHCC’s concurring dissenting opinion that it is registered denying spousal benefit to domestic justifications business interests as for the disagree. law. We prior the Partner Act but under versions partners under Domestic comparable to the Domestic Partner Act prior partner The of the domestic law were not versions intent, was, It to terminate domestic scope, procedure. example, or for much easier Act. versions of the law than it under Domestic Partner partnership under earlier Moreover, (a) 299.) prior versions did not (Compare subd. and current § § former to, range rights and registered partners the broad of substantive grant impose upon, domestic the Domestic granted imposed upon registered partners domestic under responsibilities granted right generally partners to domestic example, only Act. For substantive Partner rights. hospital visitation registered partner version the domestic law was under Code, (Health explicit declaration of the prior Nor did the versions contain & Saf. § spouses found Legislature’s intent to the status of equalize Thus, law, 421, 1.) (Stats. earlier expansive unlike current ch. the current version. distinguished registered from other partner law versions of the domestic partnership registration not in very and domestic was purposes limited marriage. We responsibility therefore comparable of mutual commitment and itself evidence of these earlier concurring dissenting contention that the existence reject opinion’s during this analysis damages claim for plaintiffs’ alter our partner statutes should period.

853 Plaintiffs contend that violated the alternatively facially BHCC’s policy (Harris, Act’s supra, sexual orientation discrimination proscription 1155), Cal.3d at because as a criterion for using marriage allocating p. benefits denies such benefits all of its members necessarily homosexual who, (§ like are unable to is a marry. plaintiffs, [“Marriage personal relation out arising .”].) of a civil contract a man and a woman . . . between Harris, in Harris

In we an claim. The rejected analogous plaintiffs that, Act, argued economic status was not under the the assuming protected defendant’s minimum income constituted discrimination be gender cause of on its women were more to be disparate who impact likely receiving (Harris, and assistance who had lower men. public generally incomes than observed, however, supra, 1170.) 52 Cal.3d at We that “the of the p. language discrimination, that intentional acts of Act suggests was disparate impact, (Id. the of the at object legislation.” 1172.) the p. Examining of Civil language Code section we “The references explained, ‘aiding’ ‘inciting’ accommodations, denial of access to public discriminations and making restrictions, willful, and to the commission of an ‘offense’ affirmative imply Moreover, misconduct on of those who violate the Act. part damages for an provision allowing award of to treble actual exemplary up damages suffered a minimum stated amount reveals a desire to intentional punish contrast, offensive conduct. In morally title VII of the Civil Rights Act a allows [which does not allow disparate impact analysis] recovery or but compensatory punitive damages, confines the plaintiff specified forms of (Harris, supra, 1172.) relief. at equitable We noted p. [Citation.]” further that the standards that “explicitly are alike to exempts ‘applicable sex, color, race, persons every religion, national ancestry, origin, blindness or other ([Civ. Code,] nature, physical disability.’ 51.) itsBy an adverse claim challenges standard impact that is alike to all such applicable that, persons based its premise notwithstanding universal applicability, its actual demands If the impact scrutiny. had intended to include Legislature claims, adverse it would have impact omitted or at qualified least (Id. 1172-1173.) in section 51.” at language pp.

We also observed that had failed to cite any authority from any jurisdiction involving statutes to the inAct which the comparable (Harris, test had been disparate 52 Cal.3d impact employed. at Furthermore, 1173.) p. we noted that the federal laws that disparate applied test were aimed impact forms of specific discrimination employment “ while the Act housing ‘aims to eliminate arbitrary of all business in the all provision services to persons. Adoption to cases Unruh disparate theory under the Act would busi impact expose nesses to new liability potential court of their regulation day-to-day manner never intended practices This we Legislature. ” (Harris, held, therefore, “that a do.’ We plaintiff decline to and prove a case under Unruh Act must plead to establish seeking discrimination in in violation of the terms accommodations intentional public Unruh Act test does not to analysis apply of the Act. A or impact disparate Nonetheless, that of 1175.) we evidence (Id. acknowledged claims.” p. in Unruh Civil cases because could be admitted disparate impact in some be intentional discrimination probative “such evidence may (Harris, cases . .” . . rather than cast claim one of treatment disparate

Plaintiffs their as disparate that, in which the dispropor- Plaintiffs unlike argue disparate impact, impact. a class a substitute neutral on is facially policy protected tionate of a impact intent, intent discriminatory for their claim is that BHCC’s discriminatory which as the criterion to marriage by was established its adoption members, others, but not because gay extend benefits to some its Thus, to according in this state. plaintiffs, lesbian cannot marry to intentional sexual benefit amounted BHCC’s adoption spousal policy that this treatment argue theory orientation discrimination. Plaintiffs disparate (See a under the Act. Roth v. Rhodes of discrimination recognized theory (1994) Cal.Rptr.2d policy 25 Cal.App.4th 706] [“A [30 classification, it is illegal in nevertheless be if may merely itself permissible, Here, discrimination”].) how- to prohibited device employed accomplish ever, its evidence that BHCC any adopted spousal do not to point plaintiffs on the of sexual orientation. benefit to basis accomplish policy Rather, on the analysis, like relies argument, disparate impact plaintiffs’ on a and would us particular require of a neutral facially policy group effects solely discriminatory Accordingly, to from such effects intent. infer to in Harris would seem apply reasons we for gave rejecting disparate impact therefore conclude that BHCC’s with force to We theory. equal plaintiffs’ not, face, on the basis of its discriminate against did plaintiffs policy sexual orientation.

Nonetheless, noted, adduced in there was evidence as the Court of Appeal did its below that BHCC not apply the summary judgment proceeding Rather, of Appeal in an manner. as Court neutral facially policy impartial unmarried, observed, members of heterosexual there was evidence entitled, to were not which granted privileges BHCC were membership to BHCC’s were denied such privileges purportedly pursuant while plaintiffs was, moreover, evidence that BHCC’s significant There benefit spousal policy. sexual of their animus toward because plaintiffs directors were motivated orientation, of the application evidence of BHCC’s inconsistent including while, unmarried, at the its heterosexual members benefit spousal policy time, modify efforts to policy same it rebuffed plaintiffs’ repeatedly try be allowed to then that should include them. We conclude that, establish BHCC’s benefit discrimina- was prior policy Everett v. Court (See of the Superior in violation Act. torily applied where Cal.Rptr.2d [reversing summary judgment Cal.App.4th 418] [128 inference evidence an sufficient plaintiffs presented support amusement neutral facially cutting-in-line was park’s discriminatory against African-Americans].) applied

DISPOSITION reasons, For the we reverse the foregoing judgment Court Appeal affirm it part, part, remand case further proceedings consistent this opinion. J., Kennard, J., J., Baxter, Chin, J., C.

George, and concurred. WERDEGAR, J., and Concurring I concur in the Dissenting majority’s Code, conclusion that the (Civ. because Unruh Civil Act §51) Rights prohibits against discrimination domestic on the basis of registered partners their marital status and are plaintiffs registered domestic under the partners 2003, Domestic Partner and (Stats. Responsibilities 421, 2), ch. defendant (BHCC) § Bernardo Club Heights Country is not to entitled summary judgment claim for relief plaintiffs’ injunctive against ante, marital status II.B.) discrimination. I (Maj. opn., dis pt. respectfully however, the agree, with conclusion that majority’s “legitimate business ante, interests facially BHCC’s justified benefit spousal (maj. policy” opn., 1, 2005, 851) the the January effective date of act. current As the before (id. majority 10), concedes fn. have p.852, evidence presented that were they as the registered domestic under partners statutes partnership 1, 2000, in effect between January and 2005. The January business the interests cites as the majority justifying earlier discrimination are the same interests BHCC and the majority rejects as posits BHCC’s justifying view, current In my discrimination. those business interests went no further in justifying against discrimination domestic the registered under partners previ ous act than do they now. merits,

In its brief on the BHCC the posited following justifica- business tions its (1) for benefit to restrict access in order to ensure policy: times, of tee availability avoid slow and course’s play, preserve golf condition; (2) to attract new members and “free discourage riding” guests from without playing to create a repeatedly joining; help “family- access, members, I friendly environment.” that agree restricting attracting maintaining a congenial for families are for atmosphere legitimate a goals club. But in of this country light court’s that those interests do not holding justify against domestic under current partners registered demonstrate, act, BHCC, view, a in as matter of law on cannot my record, goals discriminating these judgment justified summary in the period. 2000-2004 registered partnerships access, First, to unlim- with to BHCC declines “extend reasonably regard friends.” But to club provide ited members’ golfing privileges privileges have would not been registered partners equivalent opening even first club unlimited use members’ friends: under California’s 1, 2000, statute, were far effective January partners partnership 588, 2), (Stats. ch. were more than “friends.” Under law partners § another’s lives in an defined “two adults who have chosen share one Code, (Fam. former caring.” and committed of mutual intimate relationship be a (a).)11 by jointly filing A could formed partnership only subd. § (former 298), Secretary notarized declaration and form with the State § a to be “agree[d] jointly which the stated shared residence the domes- during for each other’s basic incurred living expenses responsible (former (b)(2)). subd. The of State Secretary tic partnership” kept § registry partnerships provided copy 298.5, (b).) could not in a (Former register form. subd. A person time, married, if have one at a and could not only could partner partnership new six months after old formally dissolving register partnership 297, 298.5, (Former one. §§ friends, but dozens of even might golfing

A club member have country have one only under law 2000 the member could had through from at a restricted in how often he or domestic time was registered partner reveal, As far as briefs registered she could change partners. parties’ BHCC, at but only seeking were the benefits registered partners according even at a club with several members in registered partnerships, each would not have significantly impacted to such member golfing privileges What the observes about plaintiffs’ tee times or course conditions. majority true to club benefits to extending was in 2000 2004: today equally partnership create on the that BHCC fairway French “would not the stampede plaintiff ante, to envision.” p. appears (Maj. opn., concern, in result extending privileges

BHCC’s second asserted that would the club are avid who would use inviting “free i.e. who riding, guests golfers member,” to a is at a what it would cost become fraction of repeatedly, to under the no applicable registered partners more similarly Providing to under current act. 2000-2004 laws than registered partners a have allowed club club would not partners privileges course a his onto the as to or her favorite golfing partner member simply get rather, to the have had to declare the member would domestic partner; 11 Family statutory are to the Code. unspecified All references further State, Secretary of misdemeanor criminal that the two pain liability, needs, shared a residence and were for each financially other’s responsible 298, (Former responsibility by (e), enforceable creditors. subd. §§ (c).) subd. That significant numbers of club members would have so falsely declared, thus themselves to financial subjecting responsibilities possible and, cases, criminal liability many their sexual impliedly misrepresenting orientation, is highly unlikely. could,

Denying registered domestic club have privileges theory, encouraged some members to their own purchase memberships. But true under equally today, the current version of the domestic law, that, partnership yet holds that neither majority nor other any interest, legitimate business currently justifies denying privileges matter, then, For that partners. now, the asserted would justification as apply in vastly higher numbers to members’ had BHCC not extended spouses: club privileges spouses, many husbands and wives members could have been expected purchase their own thus BHCC’s memberships, improving busi- ness position.

BHCC did presumably not deny privileges because to do so spouses would have the club’s third impeded asserted that of goal, “creating environment family-friendly immediate welcoming of married family well, members.” But goal, fails to justify denying privileges registered domestic environment,” BHCC, partners. By “family-friendly which denies having intentionally discriminated on the basis of sexual orientation, cannot mean a club devoid of and lesbian gay members. As the Unruh Civil proscribes discrimination on the basis of sexual ante, orientation (maj. see Harris v. Growth opn., Capital Investors XIV 52 Cal.3d P.2d 873]), Cal.Rptr. [278 business could not defend against for marital liability status such claiming discrimination was warranted as a means to effectuate sexual orientation discrimination. A prohibited cannot discriminatory goal itself constitute a legitimate business interest justifying discrimination.

aBy environment, then, club “family-friendly” I take BHCC to mean not an environment but, rather, excluding gay and lesbian an couples, environ- ment that welcomes members’ immediate families and includes them in club activities, fuller promoting social within the club relationships membership. a This is legitimate BHCC goal; could want reasonably club members to get to know each other better by with golfing socializing one another’s families, disserved, but served, this would be goal not club’s of policy club denying privileges registered domestic of members. Even partners law, under California’s first domestic as partnership couple registered domestic lived partners necessarily were together, financially responsible needs, in an one another’s lives another’s and had “chosen to share one 297.) (Former mutual caring.” intimate and committed of relationship was no true in what current less says day Again, majority in environ- ‘family-friendly the interest “promoting 2000-2004 period: families formed domestic through ment’ ... is furthered by excluding ante, 847.) at (Maj. p. partnership.” opn., marital status

In that business interests BHCC’s finding justified legitimate BHCC’s claims its the majority policy discrimination prior repeats overutilization, create new encouraged memberships, helped avoided ante, But, 851-852.) as shown at (Maj. opn., pp. environment. family-friendly above, members’ these more club justified denying privileges interests no 1, 2005, than did after that domestic before January registered date. interest, echoes, claim an BHCC’s

The also asserted business majority the Unruh Civil (in that discussing holding consequences would have to make club discrimination) marital it status prohibits because, a marriage facilities to members’ friends absent freely available on intruding it have no without members’ way, privacy, would requirement, BHCC, reasons, nonmarital majority to distinguish among relationships. less criteria or that were “arguably was not to use methods required proof more than a license to ascertain the nature reliable and intrusive marriage ante, at its members’ (Maj. unmarried stability relationships.” opn., BHCC’s 852.) While reason claim that justifies rejecting plaintiffs’ p. no all it carries couples, discriminates illegally whose status regard partners, justificatory power majority their The nonintrusively registration. verifiable readily for its in BHCC’s justification makes this observation rejecting precisely (id. 847), it in address- unaccountably ignores discrimination but current p. discrimination. ing past lies in illogic virtually ignoring plaintiffs’

The fundamental majority’s their discrimi- claim of registration considering previous partner effect their legal present on the relying nation before while heavily footnote, In a asserts majority plaintiffs under the current law. registration of time their claim for this period “do not base marital status ante, (Maj. opn., those statutes.” partnership] on [earlier brief, the earlier relied expressly fn. But their opening laws, without an intrusive could have verified couplehood BHCC arguing 1, 2000, allowed non- California has January because “since investigation Code, (see with the state Fam. as domestic register married couples if one were needed.” 297-298.5), line’ ‘bright providing simple §§ sure, At oral to be counsel argument, that plaintiffs’ explained plaintiffs’ marital status discrimination claim for did depend not damages laws; discrimination, domestic BHCC’s he was and is partnership argued, illegal as to all unmarried or whether as domestic couples, But this of broad partners. description plaintiffs’ theory as well to applied relief, claim for plaintiffs’ injunctive which the allows to forward. majority go Counsel, moreover, that acknowledged the current law him with the provided case for strongest treatment of domestic equal and married partners couples. In so doing, counsel did not concede that the Unruh Civil Act Rights afforded law; no to protection under nor did partners he prior argue, contrary brief, that plaintiffs’ opening plaintiffs’ registration as domestic partners (under law) either should be ignored if the court their broad claim of rejected unmarried all couples.12

Like the I would majority, reject broad claim plaintiffs’ that the Unruh Civil forbids BHCC from any between married and discriminating unmarried But couples. plaintiffs’ advanced such a broad claim having should narrower, not blind us to the more meritorious argument have also they made-that BHCC had no legitimate business interest denial of club justifying privileges registered domestic whose partners, registration with the Secre- State, out, of tary as plaintiffs “a point provides line’ if one simple ‘bright were needed.” The majority recognizes this as to claim for plaintiffs’ relief but prospective illogically denies it as to their claim for damages. For reason, I dissent respectfully from H.C. of the part majority opinion insofar as it rejects claim for for marital damages status discrimination.

I also differ in one with the respect majority’s analysis claim plaintiffs’ holds, sexual orientation discrimination. The and I that the majority agree, evidence directors, animus on the discriminatory of BHCC’s part together with evidence that BHCC extended informally benefits to heterosexual members while repeatedly refusing its modify so as policies to extend such benefits to other homosexual couples, supports 12 majority The points procedural also and substantive differences between current and ante, prior 852, partnership (Maj. 10.) view, however, opn., laws. at p. my fn. In neither partnerships prior to 2005 could be judicial dissolved without a proceeding nor that partners accorded rights more limited substantive than current law demonstrates legitimate justified business posits discriminatory interests BHCC its policy. goals The limiting access preventing riding” “free by provisions were met preventing a partnership being quickly informally exchanged from for a new partnership. 298.5, (Former 299, (c), (b).) environment, subd. §§ subd. family-friendly As to creation of a original that the law partners defined domestic “shar[ing] one another’s lives in an intimate and committed relationship (former (a)) caring” mutual subd. and made § (id., financially responsible (b)(2)) that, for one another’s amply needs subd. demonstrates even were, prior them, Legislature as characterized one another’s “immediate (Stats. family members.” ch. ante, 854.) But the same at (Maj. opn., discriminatory application. claim of that BHCC main claim to support plaintiffs’ would also appear evidence (Roth “device” v. “subterfuge” limitation as a benefit tained its 706]) to accomplish Cal.Rptr.2d Rhodes Cal.App.4th [30 Contrary orientation. on the basis of sexual discrimination prohibited to infer such characterization, ask the court do not majority’s from such “solely [differential] orientation discrimination intentional sexual rather, but, ante, 854), at p. members (maj. opn., on homosexual effects” this was evidence “that record contend is significant to what they point The evidence maintaining policy.” intent specific [BHCC’s] for intentional sexual a subterfuge status rule as its marital BHCC used summary judg to survive be sufficient may orientation in a ment, acknowledge plaintiffs, at least should but the majority as a disparate impact characterizes from what the majority distinct contention claim, a conclusion. do for such argue

Case Details

Case Name: Koebke v. Bernardo Heights Country Club

Court Name: California Supreme Court

Date Published: Aug 1, 2005

Citation: 31 Cal. Rptr. 3d 565

Docket Number: S124179

Court Abbreviation: Cal.