(originally published in Winter 2005)
Koebke v. Bernardo Heights Country Club – Superseded by grant of review – not citable (2004) 116 Cal. App. 4th 791.
*Please note that this case has been granted review by the California Supreme Court, and cannot be cited as good case law. Please watch our quarterly newsletter for updates on how the California Supreme Court ultimately decides this case. Because this case involves issues facing many associations in California, however, we are including an analysis of this case.
The civil rights of California citizens when visiting business establishments are defined and protected in the Unruh Civil Rights Act (California Civil Code section 51). The interpretation and application of the Act has been the basis for a variety of lawsuits involving issues ranging from discrimination against those with disabilities, to sexual discrimination in the workplace, and recently, discrimination based on sexual orientation and marital status.
The California case involving the Unruh Civil Rights Act, Koebke v. Bernardo Heights Country Club, (2004) 116 Cal.App.4th 791, involves claims of discrimination based on gender, sexual orientation and marital status.
In Koebke, the California Court of Appeal held that business establishments, including private country clubs, could legally discriminate against customers based on marital status. A lesbian couple, Koebke and French, sued the Bernardo Heights Country Club (“BHCC”) for gender, sexual orientation, and marital status discrimination in violation of the Unruh Civil Rights Act (“Unruh”). Specifically, the couple alleged that the BHCC’s bylaws, which granted family membership privileges to married couples only, were discriminatory.
In 1987, Koebke purchased a membership to the BHCC, which entitled a “member’s legal spouse and unmarried sons and daughters under the age of twenty-two (22) residing with them” to use the BHCC’s facilities without having to pay any additional fees. In their complaint the couple alleged that BHCC refused to extend this privilege to French since she was a domestic partner not a legal spouse, but that BHCC allowed unmarried, heterosexual couples to enjoy the same privilege. The couple also alleged that they were subjected to hostility and harassment at the BHCC because of their sexual orientation and gender.
The court first held that the bylaws did not discriminate on the basis of gender or sexual orientation; however, it did determine that they discriminated on the basis of marital status, but that Unruh does not prohibit such disparate treatment. The court also held that the couple had presented sufficient evidence to raise a triable issue of material fact on their claim that the BHCC applied its bylaws in a discriminatory manner and reversed the trial court’s grant of summary judgment to BHCC.
On appeal, the couple asserted the trial court erred in granting BHCC’s motion for summary judgment because (1) triable issues of fact existed as to whether they were discriminated against on the basis of their sexual orientation and gender, and (2) even assuming that BHCC treated all unmarried couples the same, the bylaws, as written, discriminated against the couple on the basis of marital status, sexual orientation and gender.
Unruh guarantees to “‘[a]ll persons within the jurisdiction’ of California, ‘no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition,’ the ‘full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.’” Unruh further provides that it “shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability or medical condition.”
The Court of Appeal acknowledged that the statutory classifications identified above are not exclusive, but only illustrative of the kinds of discrimination prohibited by Unruh. It pointed out, however, that the California Supreme Court had earlier limited Unruh’s scope to discrimination based on personal characteristics or personal traits, such as geographical origin, physical attributes, or personal beliefs. Furthermore, the court stated that Unruh does not prohibit restrictions that apply equally to all persons, regardless of their sex, color, race, religion, ancestry, national origin, disability or medical condition.
Turning to the facts of the case, the court held that BHCC’s bylaws limiting membership privileges to legal spouses did not violate Unruh because they treated all unmarried individuals, regardless of gender or sexual orientation, the same. The court also held that Unruh does not prohibit different treatment based upon marital status since it is not the type of “personal characteristic” envisioned by Unruh. As authority, it cited an earlier case, Beaty v. Truck Ins. Exchange (1992) 6 Cal.App.4th 1455, which refused to extend Unruh’s protection to marital status. The court also bolstered this position by stating that since the Beaty decision was published, the legislature had amended Unruh on three occasions, each time declining to add marital status as a protected category. While the court found the bylaws as written were not discriminatory, it did hold that the couple had presented sufficient evidence to raise a triable issue of fact on their claim that BHCC had applied the bylaws in a discriminatory manner. Accordingly, it reversed the trial court’s grant of summary judgment on that claim.
As stated above, this case has been granted review by the California Supreme Court. We will continue to track this case for future developments.