Divorce Attorneys

The California Supreme Court cautiously considered a lesbian couple’s claim Thursday that a golf club discriminated against them by charging them higher fees than spouses pay.

By granting family memberships only to married couples, the San Diego country club “chose criteria that same-sex couples could not possibly meet,” said Jon Davidson, the couple’s lawyer and legal director of the Lambda Legal Defense and Education Fund.

His argument – that a spouses-only policy amounts to discrimination against gays and lesbians – parallels a central claim in the pending suit over the state’s same-sex marriage ban, which is likely to reach the state’s high court next year. A San Francisco judge ruled in March in that case that California’s marriage law discriminates based on sex and violates the right to marry a partner of one’s choice, a ruling that has been suspended while it is being appealed.

The ruling in the country club case, due within 90 days, could preview how the court will address the marriage ban. Davidson, whose organization also is challenging the marriage law, told reporters a narrow ruling in the couple’s favor could actually hurt his side in the marriage case and help Attorney General Bill Lockyer’s defense of the state law. Lockyer has argued that the state already grants equal rights to gay and lesbian domestic partners without allowing them to marry.

In granting review of the country club case, the court said it would consider whether businesses could legally discriminate against any unmarried couples, gay or straight. But justices at Thursday’s hearing in San Francisco seemed more interested in the narrower issue of whether treating spouses favorably discriminates against domestic partners.

A state law that took effect this year gives domestic partners most of the rights of married couples.

When Jeremy Rosen, lawyer for Bernardo Heights Country Club, said the new law was irrelevant to the case, Justice Joyce Kennard objected. “How can you say that when the (law) equates registered domestic partners with spouses?” she asked.

Justice Carlos Moreno took issue with Davidson’s argument that equal treatment shouldn’t be limited to same-sex couples registered as domestic partners, but should also be available to same-sex couples who provided evidence that they were more than just friends – for example, by showing that they owned property together or had named each other in their wills.

That’s too subjective and intrusive, Moreno said, compared with the “clear bright line, registration with the secretary of state,” required for domestic partners.

A decision that businesses must treat domestic partners the same as spouses would be a victory for the 27,000 couples on the state’s domestic partner registry and for Lockyer, whose office filed arguments to that effect.

But it would fall short of the result sought by gay-rights groups: that discrimination based on marital status, already banned by state law in housing and employment, is forbidden when businesses deal with their customers. The Unruh Act, which regulates how businesses treat their customers, prohibits discrimination based on sexual orientation but does not mention marital status.

The suit was filed in 2001 by B. Birgit Koebke and Kendall French of San Diego after the Bernardo Heights Country Club refused to grant French spousal status under the membership that Koebke had bought for $18,000 in 1987. Members’ spouses can play golf at the club for free, but unmarried guests have to pay $40 to $75 a round and can play only once every two months.