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Two lesbians won the right Monday to pursue a suit claiming that a San Diego country club used a marriage requirement to deny them membership rights as a couple while turning a blind eye toward unmarried heterosexual couples on the roster. While pleased with that outcome, the women’s lawyer fumed that the appeal court nonetheless effectively tossed out the twosome’s equal-rights suit by upholding a club policy limiting benefits, such as use of the golf course, restaurants and bars, to a member’s “legal spouse” or children. “It’s one more reason why gay people will forever be put into second-class status as long as they can’t marry,” said Jon Davidson, senior counsel in the Los Angeles office of New York’s Lambda Legal Defense and Education Fund. “Here we have a business saying, �You’re not married, so we’re going to charge you twice as much to be in our club.’ And the court says that’s fine.” B. Birgit Koebke and Kendall French, who have been domestic partners for more than a decade, sued in 2001, claiming that the Bernardo Heights Country Club had violated the state’s Unruh Civil Rights Act and the San Diego Municipal Code by discriminating based on sexual orientation and marital status. Koebke had purchased an $18,000 membership, which allowed her and her family access to the club’s facilities. The club, however, refused to recognize French as Koebke’s legal spouse and said she could use the facilities only if she purchased an additional membership. San Diego County Superior Court Judge Charles Hayes granted summary judgment for the club, dismissing the suit. But San Diego’s Fourth District Court of Appeal held Monday that Koebke and French had created a triable issue of whether “unmarried heterosexual couples were granted membership privileges to which they were not entitled.” They had provided testimony by several straight couples who said club management knew they weren’t married, but “would just wink” and ignore that fact. “This evidence,” Justice Gilbert Nares wrote, “is sufficient to raise a triable issue of fact as to whether BHCC applied its bylaws in a discriminatory manner.” Justices Patricia Benke and James McIntyre concurred. At the same time, however, the justices ruled that while the club might have been acting in a biased fashion, its policy limiting membership to married couples neither violates the Unruh Civil Rights Act nor discriminates based on sexual orientation. “It treats all unmarried individuals, male or female, and regardless of sexual orientation, the same,” Nares wrote. “ No unmarried couples are entitled to family membership benefits, regardless of the sex or sexual orientation of the partners comprising those couples.” That infuriated Lambda’s Davidson, who pointed out that — in spite of the spate of recent weddings in San Francisco, Portland, Ore., New Paltz, N.Y., and Bernalillo, N.M. — state and federal laws don’t recognize same-sex marriages. Therefore, he said, the Bernardo Heights Country Club’s policy “treats unmarried heterosexual couples better because they can get married.” The appeal court acknowledged that argument in its ruling, but said it’s not the country club’s fault that same-sex couples can’t marry. “It is state law, and its stated public policy supporting marriage as being only between a man and a woman, that results in the alleged disparate treatment of Koebke and French,” Justice Nares wrote. The decision remands to the trial court to determine whether the club’s bylaws were applied discriminatorily. Davidson said he’s not sure whether an appeal will be taken to the state Supreme Court, considering that his clients got a partly favorable ruling. John Shiner, a partner in Morrison & Foerster’s L.A. office who represented the country club, couldn’t be reached for comment. Koebke and French had several groups signing on as amici curiae. They included the ACLU Foundation of San Diego and Imperial counties, the ACLU Foundation Lesbian & Gay Rights Project, the Anti-Defamation League, the Women’s Sports Foundation, the California Women’s Law Center and the National Center for Lesbian Rights. The ruling is Koebke v. Bernardo Heights Country Club, 04 C.D.O.S. 2048.

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