Same-Sex Couples Registered as Domestic Partners Are Protected by Unruh Civil Rights Act; Businesses Must Grant Them Same Privileges as Married Couples

In Koebke v. Bernardo Heights Country Club, (2005) 36 C.4th 824, 31 C.R.3d 565, 115 P.3d 1212, plaintiffs, a lesbian couple who had registered as domestic partners, claimed that defendant country club’s refusal to extend to them the same benefits it extends to married members constituted marital status discrimination under the Unruh Civil Rights Act, C.C. 51. The trial court granted defendant summary judgment and the Court of Appeal affirmed. Held, reversed. Defendant is not entitled to summary judgment on the marital status discrimination claim. Under the Domestic Partner Act, effective in 2005, plaintiffs must be treated the same as spouses for purposes of the Unruh Civil Rights Act. Further, although defendant’s spousal benefit policy did not constitute impermissible marital status or sexual orientation discrimination on its face prior to enactment of the Domestic Partner Act, plaintiffs adduced sufficient evidence of unequal application of defendant’s policy to allow them to proceed under the Unruh Civil Rights Act on that theory.

(a) Under the Domestic Partner Act, Family C. 297 et seq., registered domestic partners have the same rights and protections granted to spouses. The Act is to be “construed liberally.” It uses the broadest terms possible to grant domestic partners the same rights and responsibilities as spouses in specified areas of the law. (36 C.4th 838.)

(b) Under the Unruh Civil Rights Act, all persons within state jurisdiction “no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (36 C.4th 839.) The protections of the Act are not confined to the enumerated categories; these categories are illustrative. In Harris v. Capital Growth Investors XIV (1991) 52 C.3d 1142, 278 C.R. 614, 805 P.2d 873, the court created a three-part framework for determining whether a future claim of discrimination involving a category not enumerated in C.C. 51 should be cognizable under the Act. (36 C.4th 840.) Thus, the court must consider the following:

(1) Whether marital status involves personal characteristics. Like the categories listed in the statute and those added by judicial construction, marital status represents “traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition.” (36 C.4th 842, 843.) Although there is a strong public policy favoring marriage, the Legislature has granted legal recognition comparable to marriage to registered domestic partners “both procedurally and in terms of the substantive rights and obligations granted to and imposed upon the partners, which are supported by policy considerations similar to those that favor marriage.” (36 C.4th 845.) Thus, “permitting a business to discriminate against registered domestic partners by denying them benefits or services it extends to spouses violates the comparable public policy favoring domestic partnership, . . . and is a type of discrimination that falls within the ambit of the Unruh Act.” (36 C.4th 846.)

(2) Whether the restriction of benefits to married couples serves a legitimate business interest. “Registered domestic partners occupy a legal status that, like marital status, is formalized, public and verifiable.” Hence, a business is not required to intrude into a couple’s private life to determine whether the union has “a sufficient assurance of permanence and legal unity of interests to extend benefits formerly reserved for spouses.” And, because registered domestic partners have legal rights and responsibilities, businesses extending them benefits “have the same assurance against loss and fraud” that they would have in the case of spouses. (36 C.4th 847.) Further, while promoting a “family-friendly” environment “may be a legitimate business interest, that interest is not furthered by excluding families formed through domestic partnership.” (36 C.4th 847.)

(3) The consequences of allowing plaintiffs’ claim to proceed. Because this ruling affects only registered domestic partners, it would not permit other unmarried couples to claim discrimination, and it would effectuate “the Legislature’s intent expressed in the Domestic Partner Act to create substantial legal equality between registered domestic partners and spouses.” (36 C.4th 848.)

(c) Discrimination “based on marital status implicates discrimination against homosexuals who, as the Legislature recognized in the Domestic Partner Act, have been subject to widespread discrimination. . . . [O]ne purpose served by expanding the rights of domestic partners is to combat such discrimination.” (36 C.4th 849.)

(d) Before the effective date of the Domestic Partner Act, legitimate business interests facially justified defendant’s spousal benefit policy. Defendant sought to strike a balance between attracting and maintaining members and preventing over-utilization of its facilities. Defendant “could reasonably have concluded that these goals would best be served by extending certain benefits to families created through marriage but not to unmarried couples and individuals.” (36 C.4th 851.) Prior to the Domestic Partner Act, a marriage license was the clearest method by which defendant “could distinguish among its members in order to extend benefits to some, but not to others, and achieve its larger goals.” Defendant’s failure to make finer distinctions than married and unmarried, “even though it may have resulted in some degree of unfairness to committed couples like plaintiffs, did not on its face constitute impermissible marital status discrimination.” (36 C.4th 852.)

(e) Likewise, prior to the current Domestic Partner Act, defendant’s spousal benefit policy did not facially violate the proscription in the Unruh Civil Rights Act against sexual orientation discrimination. The language of the Unruh Civil Rights Act suggests that it protects against intentional acts of discrimination in providing public accommodations. However, evidence of disparate impact can be admitted in Unruh Civil Rights Act cases where it is probative of intentional acts of discrimination. (36 C.4th 853, 854.) Here, there is evidence that defendant did not apply its facially neutral policy in an impartial manner, and that defendant’s directors were motivated by animus towards plaintiffs because of their sexual orientation. Thus, plaintiffs should be allowed to try to establish that defendant’s spousal benefit policy was discriminatorily applied in violation of the Unruh Civil Rights Act prior to 2005. (36 C.4th 854.)

One justice dissented from the majority’s conclusion that legitimate business interests facially justified defendant’s spousal benefit policy prior to the effective date of the current Domestic Partner Act. (36 C.4th 855.)

Witkin References:

On classification under Unruh Civil Rights Act based on marital status, see 8 Summary (10th), Constitutional Law, §910.

On application of Fair Employment and Housing Act to marital status discrimination, see 8 Summary (10th), Constitutional Law, §941.