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Why Marriage Matters
by Kate Kendell, director National Center for Lesbian Rights
© March 2, 2001, Kate Kendell

For 21 years I’ve been an ever more out dyke. For almost ten years I’ve been engaged in legal advocacy, first on behalf of prisoners, pornographers, and various others whose presence and perspectives the majority in my home state of Utah reviled, and now on behalf of those marginalized by sexual orientation and gender nonconformity.

With such a history I sometimes feel well prepared to witness injustice. And then I get a dose of reality. That reality dawned slowly and now lives as a bitter dose of just how alienated lesbian and gay couples are from even the most basic security and legal protection. Some weeks ago I read with horror the story of the vicious and brutal fatal dog attack on Diane Alexis Whipple as she fumbled to unlock her apartment door in the hallway of her building. This tragedy became personal when Diane’s life partner Sharon Smith spoke out about her loss and her nascent fight to have her seven-year commitment legally acknowledged.

In every state in this country surviving family members have the right to sue for wrongful death in circumstances where their deceased family member is killed due to the negligent or reckless acts of someone else. Wrongful death is a part of our legal system because we recognize that when a family member dies — particularly a spouse — the surviving spouse suffers a real, almost tangible loss. When the wrongful actions of some other person are the cause of such a death, then our laws permit the surviving family to hold the wrongdoer accountable for a death they could have prevented and the emotional, life-altering pain which could have been avoided.

The owners of the dogs that killed Diane Whipple should have known better. It appears clear that these dogs were no ordinary housedogs but, according to press reports and accounts of others, vicious animals with killer instincts. Such animals do not belong in a San Francisco apartment building as house pets. The fact that they were kept with the owners reportedly aware of the danger suggests virtually an open and shut case of wrongful death. But not for Sharon. Not yet. If Diane and Sharon had been married — as they would have if the law had permitted it — as the grieving and wronged spouse, Sharon’s relationship and her loss would be respected and honored in the only way our legal system recognizes: by allowing her her day in court in a wrongful death action. But because Sharon has no way to become a legally recognized spouse, her relationship amounts to a legal nothing. Her loss becomes irrelevant, her pain insignificant, her relationship invisible.

We don’t think so. The National Center for Lesbian Rights has joined Sharon’s challenge to have her relationship recognized as co-counsel with her attorneys Michael Cardoza and Robert Lazo. In the past five years our community has been engaged in a conversation and debate about our right to legally marry. Some fervently fight for the right of lesbian and gay couples to the same right to marry as enjoyed by every other committed nongay couple. Others are ambivalent or even hostile to the idea that we should mimic the patriarchy and rigidity of the institution of marriage. I well understand both positions. But as a lawyer working for lesbian, gay, bisexual and transgendered equality and justice I am reminded every day, in life stories grand and simple, of the enormous toll this sweeping denial to such a fundamental institution in our culture and law takes on our lives, relationships, and sense of self. I have to support our right to marry because basic fairness rests on this right. And until it is clear that there is some other legally viable mechanism for assuring that every lesbian couple will enjoy the same rights, responsibilities and protections as our heterosexual counterparts, marriage must be the goal. While the circumstance of Diane’s death is unique in its horror, there are many women and men who find themselves in Sharon’s shoes: Matthew dies and his surviving partner Ben comes home from the funeral to find the apartment he shared with his lover and best friend of nine years emptied out. All the belongings were trucked off by movers who were scheduled by Matthew’s mother to come at the exact time Ben and the rest of the family were at the memorial service. When the partner confronts the mother she tells him she thought it “would be easier” this way. There is no will and no legal recourse.

Sarah’s love of her life of 14 years dies of cancer. Joan has made clear her desire to be cremated, with her ashes spread in Monterey Bay. Joan’s parents won’t hear of it and fly the body home to Iowa to be buried in the family plot. Joan never put in writing her desire to be cremated and Sarah has no legal recourse.

Ann and Lana are parents to two boys, ages 9 and 6. Ann is the birth mother and the couple lives in a state where second-parent adoption is not allowed. The couple is aware and savvy enough to have wills and powers of attorney, but when Lana, the main wage earner, is killed in a car accident, Ann is plunged into financial ruin. Had the couple been allowed to legally marry, Lana would automatically receive more than $2,000 dollars a month in Social Security Survivors benefits for herself and her sons. Because their family is legally invisible, Lana gets nothing.

Sharon Smith and Diane Alexis Whipple are together for seven years in a loving, joyful relationship when Diane is brutally attacked and killed by a dog while standing on the threshold of her apartment. The dog owners are reported to have been aware that their dogs were dangerous and hard to control. Sharon seeks to bring an action against the dog owners for wrongful death. Under California law only blood relatives or a legal spouse are entitled to bring actions for wrongful death. How this family tragedy ends will either confirm our second-class status or finally provide a measure of justice in a legal landscape that has far too often served to exacerbate rather that ameliorate our loss and pain.

Enough is enough.

Kate Kendell, director
870 Market St., #570, San Francisco, CA 94102-3012
415-392-6257; fax 415-392-8442

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