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SAN FRANCISCO — The lesbian partner of a woman mauled to death by dogs earlier this year scored a surprising court victory Friday as a judge allowed her wrongful death suit to proceed to trial. 

Judge A. James Robertson II agreed with the arguments of Sharon Smith’s attorney that California state law has created a barrier for her by not allowing same-sex couples to marry, thus precluding them from seeking benefits available to married couples, such as the right to sue when someone’s negligence has allegedly deprived them of companionship. 

However, the equal protection provision of the state Constitution prevents such exclusions, the judge ruled. Smith’s attorney, Shannon Minter of the National Center for Lesbian Rights, was elated with the ruling. 

“This is a remarkable day. This is the first decision of this kind, not just in California but anywhere in the country,” Minter said. “It’s a tremendous victory for lesbian and gay people in the United States.” 

Smith sued Robert Noel and Marjorie Knoller, the caretakers of two large presa canario dogs that killed her partner, Diane Whipple, Jan. 26 as she stood in her apartment hallway. 

Marriage for heterosexual couples, Minter argued, is proof of a legal union. “But for same-sex couples it is no test at all,” Minter said. ”(Marriage) is not anything available to them in the first instance ... There is literally nothing Sharon and Dianne could have done to formalize their relationship,” Minter said. 

Smith choked back tears after the hearing and said it was an emotional moment for her. 

A vice president at an investment firm who was thrust into the public eye by her partner’s death, Smith went to the state Capitol to lobby for a bill addressing the issue of same-sex benefits. Proposed bill AB25, sponsored by Carole Migden, D-San Francisco, passed the Assembly with a 43-21 vote, and is in the Appropriations Committee awaiting action. 

The bill would allow same-sex partners to get the same health benefits, disability and unemployment coverage and retirement pensions as married men and women. It would also allow domestic partners to seek economic and emotional damages in such wrongful-death lawsuits. 

Judge Robertson’s decision sets no legal precedent, but the unique case will test the California courts if appealed, said Jon Davidson, senior counsel for Lambda Legal Defense and Education Fund. Lambda is the nation’s oldest civil rights organization for lesbians and gays. 

“In this case the plaintiff not only was arguing about the wording of the statute, but also said there would be these constitutional problems if Sharon Smith wasn’t allowed to sue,” Davidson said. “If Sharon Smith would have been Steve Smith, this couple would have been married.” 

No trial date has been set. Noel and Knoller, both lawyers themselves, are representing themselves in the case but did not appear in court Friday and remain behind bars on charges of involuntary manslaughter and keeping a mischievous dog that killed a human being. Knoller, who was with the dogs at the time, also faces a felony charge of second-degree murder. 

The last time the state’s high court dealt with a similar issue was in 1988. The California Supreme Court ruled that unmarried lovers, whether heterosexual or homosexual, could not sue for emotional distress suffered from seeing the other partner injured. 

The reasoning behind the court’s ruling was society’s support for the institution of marriage. 

“The state has a strong interest in the marriage relationship,” the late Justice Stanley Mosk wrote for the majority. Mosk added that the legal consequences of a wrongdoer’s negligent act “must be limited in order to avoid an intolerable burden on society.” 

Noel and Knoller were taking care of the dogs Bane and Hera for two Pelican Bay State Prison inmates who were allegedly having them trained to guard drug labs in California. 

In a strange twist, the jailed couple adopted one of the inmates, avowed white supremacist Paul “Cornfed” Schneider. Schneider and the other inmate, Dale Bretches, are seeking to have themselves named as co-defendants in the civil suit. 

The case is Smith v. Knoller 19-SCV-319532.