The South Carolina Supreme Court ruled on July 26 in Doe v. State, 2017 S.C. LEXIS 113, that the 14th Amendment’s Equal Protection Clause requires the state to provide the same protection against domestic violence to same-sex couples as it provides to different-sex couples. But a majority of the court sought to achieve this at the expense of the plaintiff in the case, who would not be protected by the court’s decision to invalidate the definitional portion of the state’s domestic violence law pertaining to unmarried cohabiting couples.
While all five members of the court found problems with the existing definition of the class of persons protected by the statute, they were divided about how to remedy the apparent failure of the existing statute to provide protection to many same-sex couples.
The plaintiff, identified in the court’s opinion as “Jane Doe” to safeguard her identity, sought an Order of Protection from the Richland County Family Court following a “domestic violence incident” between her and her “former same-sex partner.” The trial judge found that she was not entitled to such protection under the state’s Protection from Criminal Domestic Violence Act, as the statutory definition of a “household member” did not, in the court’s view, include same-sex partners who were living together without being married to each other or having a child in common.
Rather than appeal this ruling directly, Doe filed a petition in the state Supreme Court, naming the state as the respondent, invoking the court’s “original jurisdiction” to decide whether a statutory provision violates the constitution. Doe argued that there was a violation of her right to due process of law and equal protection of the law, citing the 14th Amendment of the U.S. Constitution.
When South Carolina enacted its first domestic violence statute in 1984, its definition of “family or household members” who were protected included “spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, and persons cohabitating or formerly cohabitating.” In 1994 the legislature amended the definition, changing the reference to cohabitation to refer to “a male and female who are cohabitating or formerly have cohabitated.” Thus, the definition was narrowed, apparently specifically to exclude same-sex couples. The act was amended several times since then, and a tougher statute called the Domestic Violence Reform Act was passed in June 2015 providing harsher penalties, but through all these amendments and enactments the narrow definition of “cohabiting household members” was largely retained, although the definition was amplified to include “persons who have a child in common.”
Today, of course, as same-sex couples can marry in South Carolina, those who do marry would obtain protection from domestic violence as “spouses.” The issue in this case is that Jane Doe and her former partner were not married. In one of the opinions, Doe’s alleged assailant is referred to as her “former fiancé.”
When this case was argued before the South Carolina Supreme Court in March 2016, Costa Pleicones was Chief Justice. His term expired at the end of 2016, but he participated as an “Acting Justice” and wrote the court’s opinion for this case. Justice Kaye Hearn concurred in the opinion, and Justice John W. Kittredge concurred in the result without joining the opinion. Thus, Pleicones’ opinion states the decision of the court, although he speaks as to the details of the analysis only for Justice Hearn and himself.
As Pleicones reads the statutory history, the legislature intentionally narrowed the definition in 1994 to exclude presently or formerly cohabiting same-sex couples from protection, which created an obvious equal protection problem.
Although the U.S. Supreme Court has not clearly specified the “level of scrutiny” that courts are to apply to determine when unequal treatment of same-sex couples violates the Equal Protection Clause, “we find,” wrote Justice Pleicones, “the statutory subsections [containing the definition] cannot survive even the most government-friendly, deferential level of scrutiny – the rational basis standard.”
“In this case,” he continued, “we cannot find a reasonable basis for providing protection to one set of domestic violence victims – unmarried, cohabitating or formerly cohabitating, opposite-sex couples – while denying it to others.” He rejected the argument of one of the other justices that the statutory language was ambiguous so the problem could be cured by interpretation. “The plain language is clear and the intent is unmistakable: the legislative history of the Act unequivocally demonstrates the General Assembly intentionally excluded same-sex couples from the protections of the Acts.”
Having found that the definition violates the Equal Protection Clause, Justice Pleicones turned to the question of a remedy. He found that both of the state’s domestic violence statutes contain severability clauses, under which the court could strike out unconstitutional provisions while otherwise leaving the statute in effect. “In this case,” he wrote, “the test for severability is met. Specifically, all provisions of the Acts, save the discriminatory definitions, are capable of being executed in accordance with the legislative intent. Further, it may be fairly presumed the General Assembly would have passed each Act absent the offending provision, and both Acts contain severability clauses. Therefore, the remedy for this constitutional infirmity is to sever the discriminatory provision from each Act. The remainder of each Act – providing domestic violence protection to ‘household member[s]’ defined as a spouse, former spouse, or persons who have a child in common – remain in effect.”
This creates a new problem, however. By stripping out the cohabitation portion of the definition, the court is narrowing the protective scope of the statute to apply only to present or former spouses, or unmarried couples who have a “child in common.” That would provide protection to married same-sex couples but not to other same-sex couples. Cohabitants, whether same-sex or different-sex, would lose the protection of the statute. Arguably, both same-sex and different-sex couples who had a child in common would still be protected, since that part of the definition referred to “persons” rather than to “a male and a female.”
Two members of the five member court wrote separate opinions because of their discomfort with this result.
Chief Justice Donald W. Beatty, while agreeing that the “household member” definitions as they stand violate Doe’s Equal Protection rights, disagreed that the solution was to sever the offending portions of the definitional provisions. “Instead,” he wrote, “in order to remain within the confines of the Court’s jurisdiction and preserve the validity of the Act, I would declare the sections … unconstitutional as applied to Doe.” He noted that in her petition Doe claimed that the statutes were both unconstitutional on their face and as applied to her, but, he wrote, “I would find that Doe can only utilize an ‘as-applied’ challenge.”
A facial challenge, he explained, would work only if the statutes had no constitutionally valid application as written. In this case, he argued, the laws were valid as applied to the other kinds of family arrangements described in the definitional provisions. The constitutional flaw, as to which he agreed with Justice Pleicones, was in specifically excluding protection for cohabiting same-sex couples while extending it to different-sex couples. He found that the definitional sections are “facially valid” because they do “not overtly discriminate based on sexual orientation. Though not an all-inclusive list, the statutes would be valid as to same-sex married couples, opposite-sex married couples, and unmarried opposite-sex couples who live together or have lived together. Because there are numerous valid applications of the definition of ‘household member,’ it is not ‘invalid in toto.’”
Turning to the “as-applied” challenge, Justice Beatty concluded that Doe met her burden of “showing that similarly situated persons received disparate treatment.” Although she was arguing for heightened scrutiny in this case, Beatty concluded that was not necessary, as “she seems to concede that the appropriate standard is the rational basis test” and, he concluded, “the definition of ‘household member’ as applied to Doe cannot even satisfy the rational basis test.” Excluding same-sex couples from protection “‘bears no relation to the legislative purpose of the Acts, treats same-sex couples who live together or have lived together differently than all other couples, and lacks a rational reason to justify this disparate treatment.” He referred to statistical evidence concerning domestic violence to show that the need for the statute was just as great for unmarried same-sex couples as for the other categories that were covered by the statutory language. “There is no reasonable basis,” he concluded, “and the State has offered none, to support a definition that results in disparate treatment of same-sex couples who are cohabiting or formerly have cohabited.”
He observed that the remedy embraced by the majority “is unavailing since the constitutional infirmity still remains. Specifically, protection afforded by the Acts would still be elusive to Doe and would no longer be available to opposite-sex couples who are cohabiting or formerly have cohabited. Yet, it would be available to unmarried persons such as former spouses (same-sex or not) and persons (same-sex or not) with a child in common. Absent an ‘as-applied’ analysis, the ‘household member’ definitional sections must be struck down. As a result, the Acts would be rendered useless. Such a drastic measure is neither necessary nor desired.”
Thus, he would not sever the definitional sections, and would not invalidate the Acts in their entirety, since those steps would leave many victims of domestic violence in South Carolina totally unprotected. Instead, he would declare the definitional sections unconstitutional as applied to Doe and others similarly situated. Thus, the family court could not refuse to provide protection to unmarried same-sex cohabitants, because to do so would violate their constitutional right to equal protection.
Justice John Cannon Few embraced a different approach. Unlike the other members of the court, he found the statutory definitions to be sufficiently ambiguous that the court would be justified in avoiding a constitutional ruling entirely by interpreting the statute to protect unmarried same-sex couples. “Jane Doe, the State, and all members of this Court agree to this central point,” he wrote: “if the Acts exclude unmarried same-sex couples from the protection they provide all other citizens, they are obviously unconstitutional.” But he would not declare them unconstitutional for two reasons: “First, Doe and the State agree the Protection from Domestic Abuse Act protects Doe, and thus, there is no controversy before this Court. Second, Doe and the State are correct: ambiguity in both Acts – particularly in the definition of household member – requires this Court to construe the Acts to provide Doe the same protections they provide all citizens, and thus, the Acts are not unconstitutional.”
He pointed out that this “original jurisdiction” action was a suit by Doe against the state. But the state agreed with her, or at least the attorneys representing the state in the current action agree with her. The problem is that the family court wrongly interpreted the statutes to deny her relief based on the definitional sections. But she didn’t appeal that ruling, in which her former partner was the defendant. Since the state now agrees with her that she should be protected, Justice Few wrote, the court should interpret the statute to provide that protection for the future.
Justice Few observed that South Carolina precedent requires courts to avoid declaring a statute unconstitutional unless it is absolutely necessary to do so, unless “its repugnance to the Constitution is clear beyond a reasonable doubt.” Justice Few went through a convoluted explanation of why he found the statutory definition to be ambiguous, mainly due to changes in wording and emphasis over the course of successive amendments, and argued that the majority was misled by its reliance on legislative history and the presumed intent of the legislature when it amended the original definitions. “If the statutory text truly was clear and unambiguous,” he wrote, “the majority would not need to consider legislative history to determine the motives of the General Assembly. The statutory text is not clear, and therefore, this Court must find a way to construe the Acts as constitutional. I respectfully believe Doe and other members of same-sex unmarried couples are covered by the Acts and the Acts are therefore constitutional.”
Now it is up to the legislature to sort things out. The opinion is sufficiently complicated that the initial Associated Press report about the opinion fails to explain how the Court’s remedy leaves unmarried couples in South Carolina unprotected – not a result, presumably, that the legislature would favor. The ball is now back in the legislative forum to repair the problem.
Tags: Chief Justice Donald W. Beatty, domestic violence laws, household members under domestic violence laws, Justice Costa Pleicones, Justice John Cannon Few, Justice John W. Kittredge, Justice Kaye Gorenflo Hearn, same-sex couples and domestic violence laws, South Carolina Domestic Violence Law, South Carolina Supreme Court