On March 12, 2001, Sharon Smith, a woman who lived with Diane Whipple as her lover for 7 years, filed her own wrongful death lawsuit against the same defendants as Whipple's mother. Under California law applicable at the time of this killing, only the mother had the right to bring a wrongful death action. Thus, the stage was set for yet another drama associated with the tragic death of Diane Whipple. This drama was about equal rights.

The only heir(s) that can sue for wrongful death are the ones who are specified in the wrongful death statute. In California at the time that Whipple died, the wrongful death statute said that the mother and father (if living) of an unmarried person could sue for that person's wrongful death. Since Diane Whipple's father is deceased, her mother was the only person who could sue for wrongful death under the law as it read at the time of this killing. (The law was changed after Whipple died. See California moves to granting rights to domestic partners, below.)

Smith contended that she was been denied equal rights, that the denial is unconstitutional, and therefore that she should have been allowed to proceed with her lawsuit. Kate Kendell, one of Smith's lawyers, put the legal issue in a very provocative way: "The court cannot deny her a remedy because they were not married, while prohibiting them from being married." The first judge to hear Smith's contention sided with Smith.

Smith's case had three interesting challenges:

Marriage is a legal status, and each State decides what constitutes a marriage. California voters recently had an opportunity to change California law to recognize same-sex marriages to some extent -- and the proposal did not pass. Neither California law nor California's citizens favor such marriages. 

Permitting Smith to go ahead with her suit would have favored same-sex couples over heterosexual couples. California courts have held that unmarried heterosexual partners cannot make wrongful death claims. There has been no California case involving a same-sex couple. However, a ruling that same-sex partners can sue for wrongful death would give same-sex partners more rights than heterosexual couples. That arguably would be unfair because it would favor gay/lesbian couples over "straight" ones. The other side of the argument would be that heterosexual couples are allowed to marry. 

No prior case held that there is a constitutional right to sue for wrongful death. The court might say that no such right exists, or that, if it does, it is up to the state leglislature as to where the line should be drawn. For example, if your brother dies (unmarried and without children) and your parents are alive, you cannot sue for his wrongful death, despite how much you might have loved him, because the state legislature has decided to draw the line so as to include your parents and exclude you. You have no constitutional right whatsoever in connection with his death. The same limitation might apply to Smith or any other domestic partner, whether gay, lesbian or heterosexual.

Smith's case was settled with a confidentiality clause, like that of Diane Whipple's mother.