(originally published Spring 2004)

The Court of Appeals in Koebke vs. Bernardo Heights Country Club recently addressed the question, whether or not a private country club may limit its membership privileges to spouses of the opposite sex. This case involved a lesbian couple who are registered as domestic partners under California law. The couple brought suit against the Bernardo Heights Country Club (“Club”) when it refused to grant the same membership privileges to them that it granted to married heterosexual couples. The couple specifically alleged such conduct was a violation of the Unruh Rights Act Section 51 and provisions of the San Diego Municipal Code.

In 1987, Koebke purchased her membership in the club. The clubÕs Bylaws stated, “a member’s legal spouse and unmarried sons and daughters under the age of twenty-two (22) residing with them” have the right to use the club facilities without having to pay additional fees for the spouse or children. The club’s documents also limited a guest’s rounds of golf to less than six times a year with the rounds being played no more than once every two months and further provided a fee for each round played.

The club’s documents also provide that the membership may only be transferred to a “legal spouse” or child upon the memberÕs death. Plaintiff requested the club recognized her partner as a family member within its membership Bylaws, however, the club indicated that the only way in which the partner would have full member benefits was for her to purchase an additional membership. At the same time, Plaintiffs alleged the club allowed unmarried heterosexual couples to enjoy full family membership benefits and allowed other members to play golf with guests without applying any of the limitations imposed by the Bylaws. Plaintiff’s Complaint alleged violations of the Unruh Civil Rights Act and sought declaratory relief seeking a declaration that the club’s Bylaws and policies were void and that the club had violated its own Bylaws along with several other causes of action. In response, the club brought a motion for summary judgment, to dispose that the matter on the pleadings on the basis that the Unruh Civil Rights Act does not prohibit discrimination based on marital status. The trial court sustained the motion for summary judgment on the grounds that the club did not provide membership privileges to the plaintiffs which were any different than those provided to other unmarried couples. Plaintiffs appealed the trial courtÕs ruling on the motion for summary judgment.

The appellate court, on appeal, considered several matters including the scope and reach of the Unruh Civil Rights Act, and the application of the club’s Bylaws and its practices in connection with the same. The court determined that the Unruh Civil Rights Act does not prevent discrimination by the club on the basis of marital status because it was not specifically numerated as part of the Act. The court refused to extend the Unruh Civil Rights Act to plaintiff’s claims because the clubÕs Bylaws treated all unmarried individuals, regardless of their sex, the same. The court went on to conclude that PlaintiffÕs real quarrel was with the legislature because the definition of marriage under the Family Code is one of a civil contract between a man and a woman.

In addition to ruling on whether the Unruh Civil Rights Act extended protection based on marital status, the court also considered whether or not the club had applied its Bylaws and policies in an discriminatory fashion. Here, the Court ultimately concluded that there was a triable issue of fact as to whether or not the club had engaged in discrimination against them by allowing unmarried heterosexual couples to enjoy family status and allowed that portion of the matter to proceed. The court’s determination here was based on the evidence provided by the Plaintiffs indicating that other heterosexual couples who were not married were allowed to play golf as a family member, that only the Plaintiff is required to sign in to a guest book when playing and that all guests were not required to register until after the Plaintiffs filed their lawsuit.

This decision is important to private country clubs for several reasons. The first is that it provides that the country club’s Bylaws may discriminate on the basis of marital status, but not based on sexual orientation. This means, that as the case with the Bernardo Heights Country Club, that the Bylaws may specifically provide that membership benefits may be extended only to legal spouses, as defined under California law at the time that this is limited to heterosexual couples only. The other important point to note is that even though such provisions are valid, if they are not applied equally across the board and in a non-discriminatory manner, that the club may be subject to liability. Here, the plaintiffs raised allegations regarding the fact that the restriction on married couples only applied to them, and that other unmarried heterosexual couples were allowed to use the facilities without paying or being subject to the club’s limitations on guests. The court concluded that there was sufficient evidence in this matter on their contentions that the clubÕs rules were designed to discriminate against them only. The long and the short of it is that a country club may adopt rules limiting membership privileges to families and married couples but that it must apply these rules equally regardless of sexual orientation in order to avoid liability.