On August 9, 2001, Sharon Smith became the first same-sex partner in the country to be recognized as a surviving spouse in a wrongful death suit. In the first decision of its kind, San Francisco Superior Court Judge A. James Robertson II held that Sharon had standing to sue the owners of the two large dogs that killed her life partner, Diane Alexis Whipple, in the hallway of their apartment building on January 26, 2001. At the time, California's wrongful death statute limited standing to legal spouses and blood relatives; same-sex partners were not included. Yet according to Judge Robertson, "Reading the wrongful death statute to exclude [the] plaintiff would unduly punish her for her sexual orientation. Such a reading has no place in our system of government, which has as one of its basic tenets equal protection for all."

In the months preceding the decision, the terrible circumstances of the attack and the outrageous behavior of the dog owners-who expressed no remorse for Diane's death-focused national attention on the fact that, as a same-sex partner, Sharon had no established right to sue the owners for wrongful death. In California, as in every other state, surviving family members have the right to sue for wrongful death when a spouse or other close family member is killed by another person's reckless or negligent acts. Wrongful death suits are a part of our legal system because we recognize that when a family member dies, particularly a spouse, the surviving partner suffers a grievous and tangible loss. By defining eligibility for bringing such claims, wrongful death statutes identify which relationships have value and whose losses matter.

Sharon, a vice president for Charles Schwab, and Diane, a world-class athlete and women's lacrosse coach, met and fell in love in 1994. They had a private wedding ceremony in which they exchanged rings and vows, pledging to stay together for the remainder of their lives. By agreement, Sharon's earnings were used to pay for rent and other household and personal expenses, including most of Diane's clothes, food, and car. Diane did the cooking each night and was primarily responsible for cleaning, running errands, and mailing bills. Sharon cared for Diane when Diane underwent treatment for thyroid cancer. Diane cared for Sharon when Sharon was disabled after surgery on her Achilles tendon. Before working as a coach, Diane was covered by Sharon's health insurance plan for six years. Sharon was the sole beneficiary on Diane's IRA, and they each wrote wills naming the other as beneficiary. They took all their vacations together, bought household furnishings together, planned to have children together, and generally presented themselves to the world as a married couple.

If Sharon and Diane had been legally married-as they would have if the law permitted it-Sharon's identity as a grieving spouse would have entitled her to a wrongful death action. Instead, not only was Sharon prevented from legally marrying Diane during their seven years together, she was forced to fight to obtain even the right to sue the persons who had recklessly and needlessly caused Diane's death. Represented by the National Center for Lesbian Rights, Sharon argued that her inability to legally marry Diane should not be used to make her loss irrelevant, her pain insignificant, or her relationship invisible.

Judge Robertson agreed. "In this case," he explained, "when one reads the wrongful death statute in conjunction with [statutes restricting marriage to male-female couples], there exists an insurmountable barrier to the right of a homosexual to bring an action for the wrongful death of his or her partner. This barrier is not reasonably related to any legitimate public purpose." By entirely excluding all same-sex relationships, no matter how committed or longstanding, California's wrongful death statute erected a complete and unavoidable barrier that irrationally-and unconstitutionally-excluded an entire class of people who otherwise fell squarely within the purposes of the statute.

The tragedy of Diane's death and the poignancy of Sharon's loss were not easily dismissed, even by those who did not generally accept or support lesbian and gay people. At the time Diane was killed, legislation to amend the wrongful death statute to include registered domestic partners was pending before the California legislature, although its prospects of passage were uncertain. Sharon's testimony in support of the bill is widely credited with securing its passage.

Currently, in addition to California, only Hawaii and Vermont allow same-sex partners to sue for wrongful death. In April 2003, however, a family court judge in New York cited Judge Robertson's decision in the Sharon Smith case in ruling that John Langan, a gay man whose life partner was killed in a car accident, was entitled to recognition as a spouse for purposes of bringing a wrongful death suit under New York law.

Nationally, in the aftermath of September 11, the manifest inhumanity of withholding recognition from the surviving same-sex partners of those killed in the attacks has resulted in unprecedented reforms. Within three months of the attacks, the Red Cross announced that it would treat surviving same-sex partners the same as surviving heterosexual spouses. On June 24, 2002, President Bush signed the Mychal Judge Act, which permits a surviving same-sex partner to receive a $250,000 federal death benefit for survivors of police officers and firefighters. In New York, Governor Pataki issued an executive order making surviving same-sex partners eligible for aid from the state's Crime Victims Board. The New York legislature also enacted new laws making domestic partners and their children eligible for the World Trade Center Memorial Scholarship and providing workers' compensation benefits to surviving same-sex partners of September 11 victims. In California, Keith Bradkowski testified about losing his partner of eleven years in the crash of American Airlines Flight 11, the first jet to hit the twin towers. In 2002, the California legislature responded by granting inheritance rights for domestic partners and is now considering legislation that would give domestic partners most of the remaining rights and obligations of legal spouses.