Column One:
Eye on Unmarried America

October 3, 2005


California marriage veto hides sweeping new business regulations

by Thomas F. Coleman
Very clever, Arnold.  Issue a veto message on gay marriage at the same time you sign a major consumer protection bill into law and maybe the media will focus on the former while ignoring the latter.

Guess what?  Your strategy worked.

Last Thursday, California Governor Arnold Schwarzenegger issued a press release announcing that he had just signed 47 bills and vetoed 52 others.  Like moths drawn to a flame, the media was consumed by the Governor's veto of AB 489, a measure which would have legalized same-sex marriage in the state.

Buried in the list of the 47 bills signed into law was AB 1400, a bill which could have a major impact on businesses and consumers alike.  Called "The Civil Rights Act of 2005," the new law adds "marital status" to the Unruh Civil Rights Act -- a California statute which prohibits any business establishment of any kind whatsoever from engaging in discriminatory business practices.

Many businesses give discounts to the spouse of a consumer which are not given to the unmarried partner of a consumer. 

Some health clubs, such as Ballys Total Fitness, for example, allow a "family" member of an existing patron to join with a major price discount.  But when the fine print is scrutinized it becomes clear that an unmarried partner or a long-term roommate or even a cousin who lives with a club patron would not be eligible for the discount.  Only legally married couples qualify.

Some automobile clubs allow spouses to be added as an associate or joint member for free or with a major price cut, while charging full price for a second membership when a club member adds a roommate, partner, or unmarried blood relative living with the member.

Many insurance companies discriminate on the basis of marital status, charging higher auto premiums to an unmarried motorist than a married one.  Some companies refuse to issue joint renter's insurance policies to unmarried couples although a married couple can get a big discount in price by taking out a joint policy together.

By adding "marital status" to the Unruh Civil Rights Act, the bill just signed into law by Gov. Schwarzenegger calls into question the legality of charging some customers more than others because they are unmarried.

Some 20 years ago the California Supreme Court declared that price distinctions based on "sex" violated the Unruh Civil Rights Act. 

In that case, Dennis Koire visited several car washes which advertised "ladies day" discounts and asked for the price break but was refused.  Koire then went to several nightclubs which allowed women to enter without a cover charge on "ladies night."  He asked to enter for free but was refused.

Koire then sued these business establishments and argued that charging a man more than a woman for the same service was "sex" discrimination in violation of the Unruh Act.  The California Supreme Court agreed, concluding that the statute prohibited "sex-based price discounts."

Now that the term "marital status" has been added to the same statute, a similar rationale should apply to discounts or price differentials that a business might apply to a married person or couple but not to an unmarried person or couple.

In the Koire case, the Supreme Court rejected the argument that price differentials should be permissible because they are profitable.  Just as the court refused to allow a profit motive to justify sex-based pricing practices, it could just as easily reject economic considerations as a justification for marital status price distinctions.

It is interesting that no major businesses or trade associations came forward in the legislative process to oppose the new "marital status" protections in AB 1400.  The only significant opposition was from a variety of religious organizations and "traditional values" groups.

But where were these "family values" folks last week when the Governor signed a major piece of civil rights legislation prohibiting marital status discrimination by California businesses?  They were falling all over themselves and each other to heap praise on the Governor for vetoing the gay marriage bill, that's where they were.

His veto message now places the ultimate decision about legalizing gay marriage with the California Supreme Court.  This shifts the focus of attention to judges who won't be up for election next year.

Very clever, Arnold. 

Unmarried America 2005

Thomas F. Coleman, Executive Director of Unmarried America, is an attorney with 33 years of experience in singles' rights, family diversity, domestic partner benefits, and marital status discrimination.  Each week he adds a new commentary to Column One: Eye on Unmarried America. E-mail: Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.