Reverse Discrimination? - In a follow-up decision to the famous Diane Whipple case, Los Angeles' 2nd District Court of Appeal on Wednesday threw out a suit by a man claiming that unmarried couples of the opposite sex should have the same right as same-sex couples to file wrongful-death suits.

In the 2001 case, Whipple's longtime domestic partner Sharon Smith attempted to file a wrongful death claim, even though the statute at the time limited the right to husbands and wives. Smith won in Superior Court when a San Francisco judge found the law to be discriminatory. Smith settled the case out of court, then lobbied hard to get wrongful death claims added to the explicit rights of domestic partners under the California code. In 2002, the state did just that. Smith's suit was therefore an important milestone in the legal progression towards full spousal rights for gay couples.

So now comes an unmarried heterosexual partner, looking for the same rights that Smith pursued. The appeals court was unsympathetic. Justice Earl Johnson Jr. wrote

The fact domestic partners are legally or practically prevented from marrying, while cohabiting couples of the opposite sex are not, provides a rational basis for extending the right to sue for wrongful death to the former but not the latter. In addition, married couples and domestic partners have publicly registered their legal relationship while cohabiting couples of the opposite sex have not, thereby providing an additional basis for recognizing the economic loss to the survivors of the former but not the latter.

This logical decision makes plenty of legal and policy sense, but the atmospherics are all wrong. It plays into the hands of anti-gay activists who will spout off on the evils of "special rights" for homosexuals (Don't count on them to be coherent in their defense of marriage when the judges are ruling against straight people!) Yet it also illustrates why gay marriage will someday be viewed not as undermining the institution but as the only rational means to bring sanity to the whole scatter-shot area of partner rights and responsibilities.