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A lesbian couple who have been together 11 years left the California Supreme Court on Thursday confident that they may soon share full membership rights at their San Diego country club — rights currently granted only to married couples. The court’s justices gave all indications that they would prohibit private businesses from denying same-sex couples marriage privileges as long as they are registered with the state as domestic partners. B. Birgit Koebke and Kendall French, who had sued San Diego’s Bernardo Heights Country Club for refusing to grant them the rights accorded to heterosexual couples, called the court’s apparent intention a “step in the right direction.” But their attorney, Jon Davidson, lamented that the court seems to be drawing a line at domestic partnership registration, rather than declaring outright that discrimination based on marital status violates the state’s landmark Unruh Civil Rights Act. “I’m kind of surprised by that,” Davidson, legal director of New York’s Lambda Legal Defense and Education Fund, said after the hourlong oral argument. “The act says all people are to be treated equally.” Koebke paid $18,000 for a membership at the Bernardo Heights Country Club in 1986, entitling her to use, among other things, a golf course, driving range, clubhouse, restaurants and bars. But 12 years later when she tried to have French share her benefits, the club balked, saying privileges were restricted to married members’ spouses and children. The two women, who have been a couple for more than 11 years, sued in 2001 — the same year they officially registered with the state as domestic partners. San Diego County Superior Court Judge Charles Hayes granted summary judgment for the country club in 2002. Last year, San Diego’s 4th District Court of Appeal remanded the case back to the trial court, saying the couple had submitted evidence showing that the club had discriminated by letting some unmarried couples use the grounds despite its policy. However, the court refused to reinstate the couple’s equal rights suit, claiming that the club’s policy wasn’t discriminatory because it denied family membership benefits to all unmarried individuals — men and women, gay or straight. On Thursday, the Supreme Court all but ignored the women’s arguments about marital status under the Unruh act, focusing instead tightly on Family Code � 297.5, which, as of the first of this year, granted registered same-sex domestic partners many of the same rights as heterosexual couples. Justice Joyce Kennard set the pace by telling Davidson immediately that domestic partnership rights was the real issue. Justice Carlos Moreno soon joined in, asking Davidson whether distinguishing between registered domestic partners and other unmarried couples wasn’t a “valid basis” on which country clubs could prevent members from bringing anybody and everybody onto their property. “Doesn’t a registration-type scheme ensure that type of fraud wouldn’t be permitted?” he asked. Moreno later remarked that filing a domestic partnership document with the secretary of state would set “a clear bright line” to prevent discrimination. Jeremy Rosen, an associate at Encino, Calif.’s Horvitz & Levy who argued for the country club, took up Moreno’s reasoning later, saying that Bernardo Heights has to make “a bright line on how it allocates its resources.” He called that a “clear business interest.” Rosen also tried in vain to urge the court not to delve into domestic partnerships. He said the record on the issue hasn’t been developed in this case, that there are no lower court opinions on extending country club privileges to domestic partners and that review wasn’t granted on that issue. In short, he said, the case provided a “bad vehicle” for including domestic partnership rights under the Unruh act. Not a single justice paid him heed, as questioning on domestic partnerships continued unabated. It was interesting to note that while Rosen felt the court was broadening the issues too greatly, Davidson believed they were focusing too narrowly. Koebke and French’s case could be won simply by relying on their domestic partnership document, Davidson agreed, but the Unruh act has been interpreted to prevent marital status discrimination in other realms. Why not here? “It doesn’t matter if they are domestic partners or not,” he said. Afterward, Davidson said a ruling limiting privileges to domestic partners wouldn’t cover many same-sex couples. Plenty of men and women in the Armed Services can’t reveal their relationships because of the military’s “Don’t Ask, Don’t Tell” policy, he said, and there are many couples who can’t meet the domestic partnership requirement of living together — a condition, he noted, not demanded in marriage itself. Koebke, a senior sales executive for a CBS TV affiliate in San Diego, and French, a pharmaceutical representative, remained positive about the expected outcome. “It narrows a little more that there are fewer differences,” Koebke said. At the same time, she added, she should have been able to share her membership privileges with French all along — domestic partner or not. “We are a family,” she said. “What else do you need from us?” A ruling in Koebke v. Bernardo Heights Country Club, S124179, is expected within 90 days.

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