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When Diane Alexis Whipple was killed outside her San Francisco apartment by two presa canario dogs in January, her partner, Sharon Smith, decided to sue the dogs' guardians, Marjorie Knoller and Robert Noel, for wrongful death. To her surprise, Smith discovered she had no legal standing to do so, since the law does not recognize same-sex relationships. "That totally set me off," Smith says. "I couldn't believe it."

But if existing statutes do not recognize gay relationships, courts increasingly do. On July 27, California superior court judge A. James Robertson II ruled that Smith had the right to sue Knoller and Noel for Whipple's death. The ruling marks the flint time gay rights lawyers can recall a court granting a surviving partner the same rights as a heterosexual spouse in a wrongful death suit.

"It's really a groundbreaking decision," says Shannon Minter, an attorney for the National Center for Lesbian Rights, which is helping Smith in her case. "This is an indication of the progress we have made in humanizing lesbian and gay relationships. There was certainly a lime, not so very long ago, when this judge or any judge could dismiss this kind of case without ever seeing the human impact, without ever taking lesbian and gay relationships seriously. That day has passed in most places."

The ruling follows several legal breakthroughs from other courts. In July, New York State's highest court ruled that Yeshiva University may have violated antidiscrimination laws by denying housing to a lesbian couple on the grounds that they ate not married. In another case in Oregon, a judge ruled in 1998 that the state cannot deny health benefits to gay couples simply because they cannot marry. Courts have also been willing to recognize gay relationships in same-parent adoption cases and custody visitation rights.

"Gays and lesbians are put in a catch-22 situation," says Jon Davidson, senior counsel for Lambda Legal Defense and Education Fund. "The only way to get rights is to get roamed, but we can't get married."

Knoller and Noel, who are married, had relied upon that defense in their court papers. They termed Smith's suit a "sham" because Smith had no legal standing in the case. "[No] matter how often she makes the allegation, [Smith] is not a spouse," maintained Knoller and Noel. The couple, who are being jailed in lieu of bail, have been charged with manslaughter and failure to control a vicious dog In addition, Knoller, who was with the dogs at the lime they attacked Whipple, has been charged with second-degree murder.

Conservative critics maintain that the courts' willingness to grant legal standing to gay couples is judicial activism run amok However, Minter says, the legal trend shows that courts are finally looking at gay and lesbian couples the same way they do other groups before the bench. "What we're seeing to a limited but important extent is courts applying the same rules and standards to lesbian and gay people as to everyone else," he says. "There is absolutely nothing unusual about the legal theories in these cases. The courts are applying this very long-standing principle that when you have a classification that appears to be neutral on its face but that in practice discriminates against a particular group of people, it should be scrutinized very strictly. What we're seeing here is a chipping away at the monumental edifice of discrimination against gay and lesbian people that is supported by marital slams discrimination."

Gallagher is coauthor of Perfect Enemies: The Battle Between the Religious Right and the Gay Movement, now in paperback.
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Article Details
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Title Annotation:Gay's rights
Author:Gallagher, John
Publication:The Advocate (The national gay & lesbian newsmagazine)
Article Type:Brief Article
Geographic Code:1USA
Date:Sep 11, 2001
Previous Article:Breaking up is hard to do.
Next Article:All together now.

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