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Businesses must grant same-sex partners the same privileges as married couples, the California Supreme Court ruled Monday — but only if they’re registered with the state as domestic partners. While the ruling was hailed as a victory by the same-sex marriage proponents who argued for the plaintiffs, it stopped short of saying that the state’s anti-discrimination law has always prohibited discrimination against all same-sex couples. Instead, the court ruled 5-1 that equal status under state law came only with domestic-partner legislation enacted at the beginning of this year. Consequently, a private country club could not deny spousal benefits to a lesbian couple who have registered for domestic partnership. “We conclude that under current law, plaintiffs must be treated the same as spouses for purposes of the Unruh Act,” Justice Carlos Moreno wrote, referring to the state’s Unruh Civil Rights Act. The lone dissent was by Justice Kathryn Mickle Werdegar, who argued that the Unruh Act protected same-sex couples both before and after the advent of the domestic partners law. Koebke v. Bernardo Heights Country Club, 05 C.D.O.S. 6731, began in 2001, when B. Birgit Koebke — a longtime member of the Bernardo Heights Country Club in San Diego — sued to force the club into giving the same membership privileges to her domestic partner that it gives to the spouses of married members. Koebke started seeking spouse rights for her partner, Kendall French, in 1995. She was turned down repeatedly and was told by the club’s lawyer that the “family-oriented organization” only recognized marriage as grounds for special privileges. But as the Supreme Court pointed out in its opinion, there was evidence that the club had not strictly enforced those policies against heterosexual couples. And Koebke argued that the real issue at hand was that the club’s board did not want to make Bernardo Heights appear to be “gay friendly.” Jon Davidson, of the New York-based Lambda Legal Defense and Education Fund, represented Koebke. He said the ruling is a victory, and indicated that the court may look favorably upon the same-sex marriage arguments it will eventually hear. “I’m feeling excited,” he said Monday. “They did not give us everything we argued for, but in the long run, it’s a pretty unqualified victory.” Most important, he said, was the justices’ willingness to say that the choice of a same-sex partner was a personal trait on par with race or religion. “This is the kind of language the courts use when they talk about constitutional rights,” he said. “They kind of understand that this is about a lot more than whether this couple can play golf together.” But Jeremy Rosen, who represented the country club before the Supreme Court, said that to the extent that it was about the right to prohibit golfing, the club did pretty well. “It basically vindicates the club’s policy over the last few years,” said the associate at Horvitz & Levy in Encino, because the court ruled that before the enactment of the domestic partnership law two years ago, businesses could discriminate between married and unmarried couples if they had legitimate business reasons. Furthermore, he said, it’s still legal “to make multiple distinctions between married and unmarried persons except for the small subset who are registered domestic partners.” But Rosen added that the club will be forced to comply with the ruling and provide marriage perks to same-sex couples registered with the state. “On a going-forward basis, that’s now the law in California.” While the large-scale discrimination issues were settled by the ruling, Davidson said, several case-specific issues will be sent back for the trial court to decide. These include whether the club is actually covered by the Unruh Act — it claims to not be a place of public accommodation — and the type and amount of damages the plaintiff may recover. On the damages end, Rosen said, the club scored a victory because the court limited the time for which they could claim harm. But, Davidson said, “this has never really been so much about the money.” In the end, he added, any ruling on gay marriage will have to build upon the recognition of domestic partnership as equivalent to marriage. Such partnerships, he said, grant almost as many rights as marriage, but not the same status. “The question the court has to answer in the marriage cases,” he said, “is whether that’s enough.”

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