Gay and lesbian activists across the nation are hailing the decision, calling it a breakthrough for gay couples who want their family relationships to be officially recognized.

Sharon Smith filed the lawsuit after the Jan. 26 death of her partner, Diane Whipple, who was killed by two dogs in the hallway of her Pacific Heights apartment.

The couple charged in Whipple's death, lawyers Robert Noel and Marjorie Knoller, responded with motions to throw out the lawsuit, contending that lesbian partners are not recognized under California law.

Superior Court Judge A. James Robertson II threw out those motions last week, ruling that Smith has the right to sue under the California Constitution. Under present state law, same-sex couples are not allowed to marry and thus can be denied rights and benefits equal to those of married people.

Attorneys in the case said the decision could have an effect nationally.

"This is a remarkable day," said Shannon Minter, one of Smith's attorneys. "This is the first decision of this kind, not only in California but anywhere in the country."

Robertson's decision was also celebrated by gay and lesbian advocacy groups.

Los Angeles attorney Jon Davidson, senior counsel of the Lambda Legal Defense & Education Fund, pointed out that the case will set no legal precedent, because trial level rulings such as Robertson's are generally not binding on other courts.

But with cases like Smith's, where the law is developing, he said a lower court ruling can still be used to support other lawsuits.

"I can imagine that it will be called to the attention of courts in other cases across the country," Davidson said. "It is a very significant ruling."

Appeal Likely

The ruling may be a big victory for Smith, but the case has a long way to go. Noel and Knoller can appeal, and even Smith's attorneys have acknowledged that Smith's right to sue will probably be determined by a higher court. Smith also sued the owner of the apartment building where the attack took place. The owner has the right to file his own motion to have the case dismissed.

Jeff Breedlove, spokesman for the Capitol Resource Institute, a Sacramento group that opposes same-sex marriages, said Whipple's death is "tragic" but doesn't change clearly defined state law.

"We believe that the judge, acting out of humanitarian reasons, may not have stayed in the law," Breedlove said.

He pointed to public support of Proposition 22, the 2000 initiative that defines marriage as a union between a man and a woman.

Noel and Knoller filed their motions to dismiss the case from jail, where they both face homicide charges in Whipple's death. They were not present for the hearing but argued in court papers that the lawsuit was a "fraud" and a "sham," because Smith wrongfully referred to herself as a "surviving spouse."

"[No] matter how often she makes the allegation, [Smith] is not a spouse," Noel and Knoller stated in the motion.

Constitutional Argument

Smith's lawyers countered that there was "literally nothing" Smith and Whipple could do to formalize their relationship under the law. Because of that barrier, dismissing the lawsuit would violate the state Constitution's equal protection clause.

Robertson concurred.

"I do agree with your constitutional arguments," the judge said after questioning Smith's lawyers for 15 minutes.

Although Noel and Knoller were noticeably absent, Smith attended the hearing.

"I am very excited. It is a big victory," Smith said outside court, still holding back tears as she hugged her attorneys.

Thousands of miles away, others celebrated.

"While this is only a first step, it is a really good first step," said David Elliot, spokesman for the National Gay & Lesbian Task Force in Washington. "It is yet another example of our family relationships being recognized."

Elliot said family relationships have been an important battleground for gay and lesbian rights groups in recent years. He pointed to the advances that San Francisco Assemblywoman Carole Migden has made with a bill that would allow domestic partners to sue for wrongful death.

Her bill, A.B. 25, has passed in the Assembly. The state Senate and Gov. Gray Davis still have to approve the bill before it becomes law.

Earlier Victories

Robertson's ruling comes after one by the New York state's highest appellate court, which ruled earlier this month that two lesbian couples who were excluded from housing at Yeshiva University have a right to sue the college.

Last year, Vermont Gov. Howard Dean signed into law a bill that grants gays and lesbians the right of marriage by way of a civil union.

But gay advocacy groups have also suffered setbacks recently.

In Florida, a female police officer was recently denied benefits after her same-sex partner was gunned down by a Tampa bank robber.

The atmosphere after Friday's ruling, however, was upbeat. Moments after Robertson made his decision, another one of Smith's attorneys, Robert Lazo, focused on the positives.

"This is a momentous day," he said outside of court, "not only for gay rights but for human rights."

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