Imagine going to a restaurant and the waiter telling you that it only serves “married” couples. Or that unmarried people have to pay more for meal, or that only children of married people can attend a private school.

While this seems outlandish, a state appellate court recently ruled that it’s perfectly fine to do this under the California civil rights statute. The ruling, rendered a few weeks ago by three conservative justices, needs to proceed to the California Supreme Court.

The case that caused the controversy involves Birgit Koebke and her domestic partner, Kendall French, who are avid golfers.

Koebke, in 1987, purchased membership in the Bernardo Hills Country Club. She paid $18,000 for one of 325 memberships; and she pays $650 each month in dues and related expenses.

In 1994, Koebke asked the club for “family golfing privileges” – just the ones other families receive. At the time, the couple provided the club with proof of their ties, including common ownership of their Tierra Santa home, powers of attorney for health matters, and being executors and beneficiaries of each other's wills. Presumably, now the couple has registered with the Secretary of State as domestic partners.

According to the Los Angeles Daily Journal, the club denied them family privilege because, of course, they are not married. If it provided them with family privileges, then it would have to extend privileges to all members who had a significant other.

So, each time Koebke's partner wants to play golf, French has to pay greens fees; she can't play more than six times per year, and if Koebke dies, she can't inherit her membership.

If Koebke and French were married, French would enjoy the same privileges Koebke has. Considering Keobke pays $650 to the club, and cannot marry, she ends up subsidizing the married couples at the club.

When the club would not extend family benefits, Koebke sued the club under the Unruh Civil Rights Act (Civil Code sec. 51) as well as the City of San Diego Municipal Code.

The Unruh Act, interpreted by court cases, prohibits business establishments from engaging in “arbitrary” discrimination, such as sexual orientation.

The club didn’t contest that it is a business establishment under the Unruh Act. It contended that it can use “marriage” as a dividing line for membership privileges.

A San Diego Superior Court judge found that Koebke and French were subject to bias based upon their marital status. But the judge said it was fine so long as the club treated all unmarried couples the same. Koebke and French denied that it does.

On appeal, the couple contended that, even if the club treats all unmarried couples the same, the practice discriminates against unmarried couples and sexual orientation.

The Court of Appeal disagreed, noting that marital status bias is not necessarily unlawful in California.

Relying upon a case allowing insurance carriers to engage in marital status discrimination in pricing, the court found that the civil rights law only applies to those things that one cannot change, like “race” or “feelings”. Because one court found that “economic status” can be a basis for bias, the court indicated that marital status can, too.

It is true that insurers are allowed under the Insurance Code to charge single people more for insurance than married people. It’s a practice insurers claim is statistically proven. Generally, single people die before married people.

There is also a basis in statistics for charging all African-Americans more for life insurance because, statistically, more African-Americans than whites live in crime-ridden communities and are more prone to getting shot. But we’ve stopped this form of racial stereotyping. Why not for single people?

Assemblymember Christine Kehoe has proposed a bill that would end such absurd biases in insurance pricing based upon marital status.

Employers cannot prefer married employees, landlords can’t prefer married tenants and cities in California cannot exclude unmarried couples from living in areas zoned for “single families.”

Almost 20 years ago, the California courts indicated that the state’s civil rights law protected against marital status bias.

A restaurant refused to seat the two lesbians in a semiprivate booth because the business reserved those booths for “two people of the opposite sex”. Even an “opposite-sex” couple with children couldn’t sit in those seats.

The restaurant owner argued that he couldn’t seat homosexual couples in the booths because he had to protect his customers from “acts of intimacy” between homosexuals.

The court found no reason for the business’s policy because the restaurant could have seated gay couples in areas where “their conduct was open to observation”.

And there's no reason why a couple – straight or gay – married or not – should be treated any differently.