Is a "Domestic Partnership" the Same as a "Marriage"?
No, but the California Supreme Court Says A "Domestic Partner" is the Same as a "Spouse"

Should the registered domestic partner of a country club member be able to take advantage of "spousal" benefits like free golf?

Last week, the California Supreme Court said yes, in Koebke v. Bernardo Heights Country Club, a decision that explores the intersection between the state's domestic partnership law and its anti-discrimination laws.

In Pursuit of Golf: The Dispute that Gave Rise to the Koebke Case

Birgit Koebke and Kendall French are a lesbian couple, registered as "domestic partners" under California law, and "avid golfers." Koebke had been a member of the Bernardo Heights Country Club (BHCC) for a couple of years when she first sought spousal privileges for French.

Koebke was a full member of the club -- which, according to the club's bylaws, means that she, a legal spouse, and any unmarried children under age 22 may play unlimited rounds of golf without paying any additional greens fees. (The club permits guests to play golf, but under much more restrictive conditions. Guests can play only six times per year and must pay a usage fee each time.)

Koebke's initial request was rejected, based on the club's policy of denying privileges to non-married members' significant others. Subsequently, Koebke made additional requests to the club's board - for instance, when she and French first registered as domestic partners with the city of San Diego and later, when they registered with the State of California. Each time, their request was denied.

What is a "Domestic Partner" under California Law?

Since the enactment of a law in 1999, same-sex partners have been permitted to register with the Secretary of State as domestic partners. And in a law that took effect January 1, 2005, California dramatically expanded the domestic partner status.

Pursuant to the Domestic Partner Rights and Responsibilities of 2003 (the "Domestic Partner Act"), once registered, domestic partners assume all the state-law rights and responsibilities of legal spouses - with two exceptions: They cannot file joint state tax returns, and their earnings are not classified as community property for state tax purposes.

(By comparison, under federal law, a registered domestic partner has none of the rights or responsibilities of a legal spouse. This state of affairs is the result of the Defense of Marriage Act, enacted in 1996 to limit marriage, for federal purposes, to a union between a man and a woman.)

Despite the similarity of rights and responsibilities, the terms on which domestic partnerships can be formed and dissolved do, however, differ from those relating to marriage. For instance, minors cannot enter into domestic partnerships, and a couple must share a common residence in order to register as domestic partners.

There are also differences when it comes to leaving the relationship: If a domestic partnership has lasted fewer than five years, produced no children, and meets certain requirements with respect to property and debts, it can be dissolved by simply notifying the Secretary of State of the parties' joint intent to disband the union.

In all other circumstances, domestic partners must dissolve their union in the same way they would dissolve a marriage a marriage - divorce or annulment - although there is no state residency requirement for doing so. (This last feature responds to the trouble created by Vermont's civil union law, which I have discussed in a previous column, pursuant to which non-resident couples can enter into, but not dissolve, their unions in Vermont.)

Despite these differences when it comes to entering into and exiting a California domestic partnership, while the partnership is in place, it is hard to draw meaningful distinctions between the status of "domestic partner" and the status of "spouse." Indeed, California law specifically grants domestic partners "the same rights, protections, and benefits" and imposes "the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses."

The preamble to California's domestic partner law states its goals: promoting equality for "caring and committed couples", "promoting family relationships and protecting family members during life crises," and reducing "discrimination on the bases of sex and sexual orientation." The law directs courts to construe the law liberally to secure "the full range of legal rights, protections, and benefits" to registered partners.

Can the Golf Club Legally Distinguish Between Domestic Partners and Spouses When Allocating Membership Benefits?

Given the parameters of the Domestic Partner Act, can a private business refuse to treat a domestic partner as a spouse - as the golf club did with respect to Koebke's partner, French?

That, in turn, depends on construction of another California statute - the Unruh Act, a California law that prohibits businesses from discriminating on the basis of certain protected characteristics.

Koebke and French's lawsuit claims that the golf club, BHCC, violated the Unruh Act by drawing a distinction between married couples and domestic partners. The California Supreme Court agreed, concluding that the club's refusal to grant spousal privileges to French constituted illegal discrimination.

The Unruh Act is different, structurally, from many anti-discrimination laws in other states or at the federal level. In the case of many other laws, the question whether a particular category or characteristic warrants protection is answered plainly by a statute that enumerates a complete list of those protected from discrimination. But the Unruh Act is different, and potentially broader. It, too, contains a list of protected characteristics ("sex, race, color, religion, ancestry, national origin, disability, or medical condition"), but the list has been construed as "illustrative" rather than "exhaustive." Thus, California courts may add categories to the enumerated list in the statute.

Using an established three-part test, the court chose to do just that, when it came to discrimination based on registered domestic partnership status. It concluded that the Unruh Act prohibits businesses from discriminating against registered domestic partners (same-sex or not) in favor of married couples.

The California Court's Analysis: Why It Added to the Illustrative Statutory List

It's worth taking a close look at the California Supreme Court's analysis - especially given that many states may, like California, end up, at least for now, continuing to bar same-sex couples from marrying, but at least offering them registered domestic partnership status instead.

First, the California Supreme Court held, marital status - including the choice to register as a domestic partner -- is a personal characteristic much like those in the statute's enumerated list, each of which are "fundamental to a person's identity, beliefs and self-definition." In the case of both marriage and domestic partnership, couples have sought both the legal benefits and the legal consequences of a formal status because of their desire to share their lives completely.

Second, the court reasoned, discrimination on the basis of marital status cannot generally be justified by legitimate business interests. A prior case had held it permissible to discriminate against an unmarried (and unregistered) same-sex couple - in favor of married couples. However, the Court noted, the business interests implicated there were different: When considering whether to give benefits to an unmarried couple, whether same- or opposite-sex, businesses may have no "easily verifiable method" of determining the level of commitment, or even whether the purported union is genuine. (For instance, a worker might falsely claim a commitment to get benefits for a close, platonic friend who's fallen on hard times.) But, with the statewide registration system, domestic partners can produce proof equivalent to that offered by a marriage license.

Moreover, the California court held, it would be an illegitimate business interest to promote a family-friendly environment that only included heterosexual spouses, particularly given the legislature's stated goal of reducing discrimination on the basis of sexual orientation. This supposed business interest is nothing but code for discrimination. And of course, same-sex couples, too, may have or adopt children, so "family-friendly," here, is merely a code for "only heterosexuals need apply."

Third, the California court predicted no adverse consequences would flow from granting Unruh Act protection to registered domestic partners. After all, the protection would not extend to all unmarried couples, but only to those that had taken the serious step of registering their union and accepting the many obligations that encumber it.

Thus, the court concluded that BHCC's denial of spousal privileges to Koebke's partner was illegal - and had been at least since the expanded Domestic Partner Act took effect. Prior to that time, the majority held, the club's policy of excluding unmarried partners did not violate the Unruh Act. (One justice, however, dissented from this latter ruling - arguing that even then, the policy was facially invalid.)

This ruling still left the door open for litigants to argue that the club's policy - while not invalid on its face, and in every application - was, in fact, discriminatorily applied. There is substantial evidence in the record that the purported no-unmarried-partner-benefits policy was unevenly applied, and that its strict and unrelenting application to the plaintiffs, no matter what legal measures they took to cement their partnership, may have been motivated by animus against them because of their sexual orientation.

Several witnesses stated that people other than legal spouses - unmarried opposite-sex partners, grown children, or even friends -- had been granted free-golf-privileges to which they were not entitled under the policy. And one board member allegedly heard another member joke that plaintiffs should be forced to put on a skit demonstrating their lesbian sexual techniques and charge admission "to help pay for the lawsuit".

Is a Domestic Partnership a Marriage?

The court in Koebke concluded that, for purposes of the Unruh Act, domestic partners are equivalent to spouses, and therefore must be granted the same privileges and benefits. So, are domestic partners married?

Not so fast. In a very contentious case decided earlier this year, Knight v. Schwarzenegger, an appellate court in California held that a domestic partnership is not a "marriage" as that term is defined under California law. Although this decision was from an intermediate appellate court, the California Supreme Court declined, 6-0, the opportunity to review (or overturn) it.

The "Is it a marriage?" question was prompted by a lawsuit claiming that the Domestic Partner Act (discussed above) violates California's Proposition 22, a voter initiative approved in 2000. Proposition 22 states, "Only marriage between a man and a woman is valid or recognized in California."

Proposition 22 -- like similar statutes and constitutional amendments that have been adopted by a significant majority of states in the last 10 years - is patently designed to ward off both celebration and recognition of same-sex marriages.

According to the California Constitution, a voter initiative cannot be repealed or amended by the legislature without voter approval. Thus the question in Knight was whether the legislature, by creating a marriage-like domestic partnership status, had violated that provision of the constitution. The appellate court held, 3-0, that it had not. (But this holding does not change the fact that according to Proposition 22, a domestic partnership, technically, is not a marriage. Only a repeal by a subsequent initiative could do that.)

While a domestic partnership may bear resemblance to a marriage, the California intermediate appellate court concluded that the legislature "has not created a 'marriage' by another name or granted domestic partners a status equivalent to married spouses."

In support of its conclusion, the court recounted the differences between domestic partnerships and marriages - most of which are spelled out above - with respect to formation, dissolution, tax treatment, and relevance under federal law. It also focused on an important aspect of marriage that is decidedly not true of a domestic partnership - its portability, when the couple travels or migrates to another state.

While states typically recognize marriages from other states, as long as they were valid where celebrated, there is no reason to expect recognition of a newly created civil status like a domestic partnership. This is especially significant, for the ability of one state to "export" same-sex marriage to other states against their will was central to the widespread adoption of "defense-of-marriage" initiatives. A non-portable domestic partnership does not implicate the same concerns.

Moreover, several states' defense-of-marriage initiatives expressly say that the state will not permit or recognize any formal legal status for same-sex couples, including domestic partnerships, civil unions, or their functional equivalent. Proposition 22 includes none of that language.

Finally, the explanatory pamphlet given to voters that discussed Proposition 22 said explicitly that its only goal was to make clear that same-sex couples cannot enter into a "marriage." Its only purpose was to withhold the status of marriage from same-sex couples, and the Domestic Partner Act does not override that.

Can Knight and Koebke Be Reconciled? Yes, Though the Semantics Are Odd

The Knight case was correctly decided - despite attempts to recall the trial judge who issued the initial ruling. Yet, when juxtaposed with Koebke, Knight does create a bit of a semantic oddity: Under California law as it now stands, domestic partners are spouses, but a domestic partnership is not a marriage.

Can this make sense? Yes. Indeed, it is the inevitable consequence of public opinion that is, by and large, willing to accept the existence of same-sex couples, and even to grant them some legal recognition, as long as they are not permitted to enter the hallowed halls of "marriage."

Both Vermont and Connecticut have established civil unions - a legal status that is indistinguishable from marriage and yet called something different. The creating statutes expressly say that all rights and obligations pertaining to spouses apply equally to civil union partners. Only the formal term "marriage" is withheld.

Other states have granted lesser, but still important recognition to same-sex couples - while still declining to use the word "marriage." And even in Massachusetts, where same-sex couples are permitted to "marry" as a result of a judicial ruling, many staunch opponents have said they would support a constitutional amendment authorizing a civil-union-for-marriage trade.

The fact is, registered domestic partners, under an expansive law like California's act both personally and legally like spouses, and laws like the Unruh Act should recognize that. At the same time, no one understands more than those couples that they are not parties to a "marriage" - and thus do not benefit from the respect, legal force, and portability that accompanies that status.

As long as same-sex marriage opponents insist on withholding the word, it ought to make a difference - a legal one, not just a semantic one - when laws also withhold it. In theory, the word is only a word; in practice, for many, it's much more.