BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1400 A
Assembly Member Laird B
As Amended April 11, 2005
Hearing Date: June 28, 2005 1
Civil Code 4
GMO 0
0
SUBJECT
Unruh Civil Rights Act: Marital Status and Sexual
Orientation
DESCRIPTION
The Unruh Civil Rights Act (Act) provides that all persons,
regardless of their sex, race, color, religion, ancestry,
national origin, disability, or medical condition are
entitled to the full and equal accommodations, advantages,
facilities, privileges and services in all business
establishments of every kind. This bill would clarify that
marital status and sexual orientation are among the
characteristics that are protected against discrimination
by business establishments under the Act.
The bill would also import into the Unruh Civil Rights Act
definitions of the terms "disability," "religion," "sex,"
and "sexual orientation" from the Fair Employment and
Housing Act (FEHA), and include, in enumerating the above
characteristics, the perception of those characteristics
and association with a person who has or is perceived to
have those characteristics as being within the protected
categories. These definitions would be integrated into
other related provisions of the Act.
The bill contains legislative findings and declarations
regarding the Unruh Civil Rights Act and the courts'
consistent interpretation that the categories enumerated in
the Act are illustrative rather than restrictive, and
(more)
AB 1400 (Laird)
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further declares the Legislature's intent that the
enumerated bases in the Act continue to be construed as
illustrative rather than restrictive.
The bill would further declare that it does not intend to
affect the California Supreme Court's holding in Marina
Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
The Supreme Court of California has consistently upheld
that the Unruh Civil Rights Act provides broad protection
to all persons who are arbitrarily discriminated against by
business establishments of every kind whatsoever.
Beginning with Stoumen v. Reilly (1951) 37 Cal. 2d 713
(where the court found the State Board of Equalization
acted illegally by suspending the license of a bar and
restaurant merely because it allowed patronage by gay
people whom the licensor saw as "immoral), through In re
Cox (1970) 3 Cal. 3d 205 (holding that the Unruh Civil
Rights Act forbids a business establishment generally open
to the public from arbitrarily excluding a prospective
customer) and Marina Point, Ltd. v. Wolfson (1982) 30 Cal.
3d 721 (a landlord's "no children" policy was arbitrary
discrimination based on familial status that violated the
Act) to Harris v. Capital Growth Investors XIV (1991) 52
Cal. 3d 1142 (affirming Unruh Act's protection of
individuals with "personal characteristics" that some
business owners might find "unwelcome" or "distasteful"
such as having young children, having an unconventional
appearance, or being gay), the Court has declared, time and
again, that the Act's enumeration of characteristics on
which discrimination by a business establishment may not be
based, is illustrative and not restrictive.
Yet, according to Lambda Legal, a proponent of AB 1400,
despite the Supreme Court's statement more than half a
century ago that discrimination based on sexual orientation
is unlawful in this state, this legal assistance
organization routinely receives calls from individuals and
attorneys who are having difficulty enforcing the
protection because it is not enumerated specifically in the
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Civil Code. This group states that this year alone, its
Los Angeles office received nearly 50 complaints of public
accommodations discrimination based on sexual orientation,
gender identity, marital status and/or HIV status. The
complaints "concerned the broad range of transactions by
which we all live our daily lives - grocery shopping,
banking, car repair, shopping for shoes and clothing,
dental and medical visits, restaurant dining, exercising at
health clubs, and computer repair services?It is impossible
to know the full scope of the harassment and exclusion that
persists despite California's longstanding and sincere
commitment to making this state a place in which everyone
is treated equally, without arbitrary discrimination, by
commercial enterprises."
This bill would add to the list of characteristics already
in the Unruh Civil Rights Act on which discrimination by
business establishments may not be based, marital status
and sexual orientation. It would make conforming changes
in other Civil Code provisions related to the Act.
CHANGES TO EXISTING LAW
Existing law , the Unruh Civil Rights Act, provides that all
persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, national origin, disability, or medical condition
are entitled to full and equal accommodations, advantages,
facilities, privileges, or services in all business
establishments of every kind whatsoever. [Civil Code 51.]
[ All further statutory references are to the Civil Code
unless otherwise noted.]
Existing law extends the prohibition against discrimination
as provided in the Unruh Civil Rights Act to a person who
is perceived to have one or more of the characteristics
enumerated in the Act or because the person is associated
with a person who has or is perceived to have any of those
characteristics. [ 51.5.]
Existing case law prohibits other forms of arbitrary
discrimination, including specifically sexual orientation
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discrimination, in business establishments under the Unruh
Act. [ Stoumen v. Reilly , supra; Hubert v. Williams (1982)
133 Cal.App.3d Supp. 1, 5; Rolon v. Kulwitzky (1984) 153
Cal.App.3d 289; Harris v. Capital Growth Investors XIV ,
supra.]
Existing law also prohibits discrimination on the basis of
age, children, familial status, and marital status, except
that certain housing may be reserved for senior citizens.
[ 51.2; Government Code 12955(a); Marina Point, Ltd. v.
Wolfson , supra.]
Existing law provides that all persons within the
jurisdiction of this state have the right to be free from
any violence, or intimidation by threat of violence,
committed against their persons or property because of
their race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age,
disability or position in a labor dispute or because
another person perceives them to have one or more of those
characteristics. [ 51.7.]
Existing law provides that no franchisor shall discriminate
in the granting of franchises solely because of the race,
color, religion, sex, national origin, or disability of the
franchisee and the racial, ethnic, religious, national
origin, or disability composition of a neighborhood or
geographic area in which the franchise is located. [
51.8.]
Existing law also provides that every provision in a
written instrument relating to real property which purports
to forbid or restrict the conveyance, encumbrance, leasing
or mortgaging of that real property to any person of a
specified sex, race, color, religion, ancestry, national
origin, or disability, is void and every restriction or
prohibition as to the use of occupation of real property
because of the user's or occupier's sex, race, color,
religion, ancestry, national origin, or disability is void.
[ 53.]
This bill would add, to the enumerated characteristics that
are protected under 51, 51.5, 51.7, 51.8, and 53,
sexual orientation and marital status.
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The bill would import into the Unruh Civil Rights Act
definitions of the terms "disability," medical condition,"
"religion," "sex," and "sexual orientation" from the Fair
Employment and Housing Act definitions of those terms. It
would specify that the characteristics listed include the
perception that a person has any of those characteristics
or that the person is associated with another person who
has any of those characteristics.
The bill contains legislative findings and declarations
relating to the history of the Unruh Civil Rights Act, and
declaring that the additions made to the Act by this bill
are declaratory of existing law and that the enumeration of
characteristics by the Act is illustrative rather than
restrictive.
COMMENT
1. Need for the bill
The author states:
The purpose of this bill is to clarify that gender
identity, marital status, and sexual orientation are
protected classes under the Unruh Civil Rights Act
(Unruh Act) and related provisions?
While the Unruh Act does not expressly mention gender
identity, marital status or sexual orientation as
grounds of discrimination in which business
establishments in California are forbidden to engage,
the California Supreme Court has rejected the argument
that the Unruh Act's ban on discrimination reaches
only the classifications specified in the Act's
text?[citations omitted]? Because these particular
bases of discrimination are not explicitly listed in
the Unruh Act?, there is an assumption that they are
not protected classes covered by these laws. This
assumption has led to unnecessary litigation leading
to erroneous decisions at the trial and appellate
court levels. This proposal will remedy this problem
by making it clearer that these specified
characteristics are covered by the Unruh Act and
related provisions. Moreover, by explicitly listing
these characteristics and providing definitions, [the
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Act] will be more consistent in form with more
recently enacted California non-discrimination laws,
e.g., the Fair Employment and Housing Act, which also
prohibits discrimination based on these
characteristics, but does so by enumerating them
explicitly rather than by relying on broad legislative
intent and case law.
This bill would not break new ground in expanding the
scope of protection provided by the Unruh Civil Rights
Act. Because it would clarify existing statutory and
case law as to what is covered, it could reduce
litigation and encourage better compliance with the law.
2. Author's amendment: no effect intended re: Marina
Point v. Wolfson
The author proposes to amend the bill to clarify that it
does not intend to affect the court's holding in Marina
Point, Ltd. v. Wolfson, supra. Marina Point held that
the Unruh Act protects all persons from arbitrary
discrimination by business establishments, not just on
the grounds enumerated in the statute, and that a
landlord's "no children" policy was arbitrary
discrimination based on familial status in violation of
the Act. The amendment is being made to ensure that no
negative inference is made by the action made in the
Assembly to delete from the bill the original inclusion
of familial status as a characteristic protected under
the Unruh Act. The deletion was made because it was
pointed out that the law is settled as to the issue of
familial status, and there was no reason to clarify it.
The author's amendment confirms that this bill never
intended and does not intend to affect the court's
holding in Marina Point .
3. Sexual orientation has long been recognized as a
protected class under Unruh
Even though the Unruh Act does not list sexual
orientation as a basis of discrimination in which
business establishments in California are forbidden to
engage, the Supreme Court has repeatedly rejected the
argument that the Unruh Act's ban on discrimination
reaches only those classifications specified in the
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statute. [Cf. Harris v. Capital Growth Investors XIV
(1991) 52 Cal 3d 1142.] The appellate courts have,
including the Supreme Court, instead made it clear that
the Act also prohibits arbitrary discrimination based on
non-enumerated "personal characteristics," including
sexual orientation. [ Stoumen v. Reilly (1951) 37 Cal. 2d
713, 715-716; Hubert v. Williams (1982) 133 Cal.App.3d.
Supp. 1, 5; Rolon v. Kulwitzky (1984) 153 Cal. App. 3d
289.]
However, the trial courts have been known to focus
exclusively on the listing of protected classes in the
statute, with results that are sometimes confused and
conflicting, such that the appellate courts have had to
reiterate the proper construction of the statute. [Cf.
Marina Point , supra; O'Connor v. Village Green Owners
Association (1983) 33 Cal.3d 790.]
By adding sexual orientation to the civil rights
statutes, it will be abundantly clear to the lower
courts, and all persons in the state, that discrimination
on the basis of sexual orientation is not permitted in
this state.
Numerous states expressly prohibit discrimination on the
basis of gender identity, marital status and sexual
orientation. Five states (Illinois, Maine, Minnesota,
New Mexico and Rhode Island) expressly prohibit
discrimination on the basis of gender identity in public
accommodations. Seventeen states and the District of
Columbia expressly prohibit discrimination on the basis
of marital status in public accommodations. These are
Alaska, Colorado, Connecticut, Delaware, Hawaii,
Illinois, Maryland, Michigan, Minnesota, Montana,
Nebraska, New Hampshire, New Jersey, New York, Oregon,
Virginia, and Vermont. Ten states and the District of
Columbia expressly prohibit discrimination on the basis
of sexual orientation in public accommodations. These
states include Connecticut, Hawaii, Massachusetts,
Minnesota, New Hampshire, New Jersey, New York, Rhode
Island, Vermont, and Wisconsin.
4. Marital status is an appropriate addition to Unruh Act
because it is consistent with determinative rulings of
the Supreme Court
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Similarly, the Supreme Court has repeatedly recognized
that arbitrary discrimination prohibited by the Act
includes not only sexual orientation discrimination but
also discrimination on the basis of age, families with
children, and unconventional dress and physical
appearance. [Cf. In re Cox , supra, Marina Point v.
Wolfson , supra, O'Connor v. Village Green Owners
Association , supra.]
In Harris v. Capital Growth Investors XIV , supra, the
court listed three factors to consider whether a
particular form of discrimination is prohibited under the
Unruh Act. First, whether the characteristic at issue is
"similar to the statutory classifications" listed in the
Unruh Act in bearing "little or no relationship to
[people's] abilities to be responsible consumers of
public accommodations" [ Harris at 1156, 1148, 1169] and
in being the kind of characteristic commonly prohibited
as a ground of discrimination under civil rights laws
[Id. at 1169, fn. 9]. Second, whether discrimination
based on the characteristic in question tends to be
supportable by "legitimate business interests " that are
"appropriate to an enterprise servicing the public." [Id.
at 1162-1163, 1165.] Third, what consequences would
result if discrimination were banned based on that
characteristic [Id. at 1165-1169.]
Proponents of AB 1400 contend that marital status as a
characteristic that the Unruh Act would protect against
discrimination meets all of the criteria listed in
Harris . Marital status has nothing to do with the
ability to be a responsible consumer. In fact, many
statutes and regulations that prohibit discrimination in
California, other states, and even the federal arena in a
variety of contexts (such as insurance, student loans,
credit issuance, housing, financing, employment) ban
discrimination on the basis of marital status. Since
marital status has been held not to be a legitimate
justification for a landlord to refuse to rent an
apartment to a couple who were not married to each other
[ Smith v. FEHC (1996) 12 Cal.4th 1143), there is no
legitimate business interest that would justify refusal
by a business establishment to provide otherwise
available benefits to a couple because they are not
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married to one another. And, there does not appear to be
any adverse consequences that would flow from codifying
marital status as a protected characteristic under the
Unruh Act.
The author acknowledges that the issue of marital status
as a protected characteristic is currently pending before
the Supreme Court in Koebke v. Bernardo Heights Country
Club , rev. granted, (2004) 14 Cal. Rptr. 3d 211. While
Koebke involves marital status as a protected class, it
also involves the recognition of a domestic partner as a
family member in the context of the extension of a
country club membership to family members. The author
rejects the appellate court's holding that marital status
was not protected by the Unruh Act in that case (the
opinion has since been vacated and depublished) and now
intends, by the addition of marital status to the Unruh
Act, to clarify that indeed it is protected, and has been
protected by the courts for many years.
5. Legislative findings and declarations comport with
case law and legislative history of Unruh
This bill contains several legislative findings and
declarations that reiterate the history of civil rights
protections in the state even before passage of the Unruh
Civil Rights Act, and that the Act was passed in order to
broaden the scope and breadth of its protections. The
declarations also incorporate long-standing language,
first used in In re Cox, supra at 216, that the
identification of particular bases of discrimination in
the Unruh Civil Rights Act, enacted in 1959, is
illustrative rather than restrictive.
6. Opposition arguments
California Catholic Conference, in opposition to the
bill, writes that "[B]ecause the Unruh Act does not
define "business establishment" and because this bill
proposes the use of the words "of every kind whatsoever"
without exception and without specifying kinds of
enterprises, the term "business" might be construed to
include churches, church organizations and associations.
This could lead to unwarranted challenges in the areas of
church membership, religious school admissions, and
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hiring practices, selection and dismissal of clergy,
etc?.AB 1400 fails to recognize and accommodate sincerely
held religious beliefs. This lack of clarity will
potentially lead to frivolous and unnecessary lawsuits."
Support: Aids Project, Los Angeles; American Civil
Liberties Union; Anti-Defamation League; American
Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO; Asian Americans for Civil Rights
and Equality; Asian American Advocacy; Attorney
General of California; Bienestar Human Services,
Inc.; California Faculty Association; California
Labor Federation; California National Organization
for Women; Equality California; First Congregational
Church of Long Beach; Gay and Lesbian Adolescent
Social Services, Inc.; Gay-Straight Alliance
Network; Human Rights/Fair Housing Commission of the
City and County of Sacramento; Lamda Legal; Lambda
Letters Project; Lesbian & Gay Lawyers Association,
Los Angeles; Log Cabin Republicans; Metropolitan
Community Church, Los Angeles; National Association
of Social Workers; Service Employees International
Union (SEIU); Parents, Families and Friends of
Lesbians and Gays(PFLAG); Planned Parenthood,
Affiliates of California, Inc.; Southern California
Nevada Conference United Church of Christ; State
Commission on the Status of Women; Stonewall Young
Democrats Transgender Law Center;
Opposition: California Catholic Conference; California
Family Alliance; Capitol Resource Institute;
Concerned Women for America (CWA) of California,
San Diego &Imperial Counties; Eagle Forum of
California; San Luis Paper Co.; Traditional Values
Coalition; two individuals
HISTORY
Source: Equality California
Related Pending Legislation: SB 1030 (Hollingsworth) would
amend 51 to require that the
statute not be construed to provide
nonessential services to a member of
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the public, if to do so would violate
one's conscience due to a sincerely
held belief. This bill is being held
in this committee.
Prior Legislation: AB 1707 (2004, Cmte on Jud) would have
made technical changes to Civ. Code 51.
Vetoed.
AB 1592 (2001, Wyman) would have construed
the Unruh Act not to apply to membership in
the Boy Scouts. Failed passage in Asm. Jud.
AB 1701 (2001, Cmte on Jud.) would have
renamed the act as the Jesse Unruh Civil
Rights Act, but was later amended to amend
another statute. Held in this committee.
AB 2298 (2002, Bogh) would have affected
Unruh Act as it applies to sale or rental of
housing. Held in Asm. Jud.
AB 407 (1999, Cedillo) would have added
immigration status as a protected class
under Unruh. Vetoed.
AB 1670 (1999, Cmte on Jud.) added 51.5 to
the Unruh Civil Rights Act, which protects
those perceived to have a protected
characteristic and those associated with
persons perceived to have a protected
characteristic from discrimination. Ch. 591,
Stats. 1999.
AB 2222 (2000, Kuehl) added definitions for
disability and medical condition under the
Unruh Act. Ch. 1049, Stats. 2000.
AB 2702 (1998, Aroner) dealt with
discrimination based on disability, stating
that the law is not to be construed to
impose additional requirements beyond those
required by other laws for compliance. Ch.
195, Stats. 1998.
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SB 1910 (Haynes, 1998) dealt with Unruh Act
and the Boy Scouts. Failed passage in this
Committee.
Prior Vote: Asm. Jud. (Ayes 5, Noes 3)
Asm. Flr. (Ayes 44, Noes 29)
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