Doe v. State: Equal Denial Equals Equal Protection?

On July 26, 2017, in Doe v. State, the S.C. Supreme Court struck portions of our state’s CDV laws as unconstitutional because they violate the Equal Protection Clause.

South Carolina’s domestic violence laws discriminate against same sex couples, denying them the protections that heterosexual couples have against spousal abuse. The Court’s remedy was to continue to deny protection to same sex couples and to additionally deny protection to all other unmarried couples who do not have a child in common. The Court has issued an order staying the effect of their decision as both sides have asked the Court to reconsider their ruling.

Are South Carolina’s Domestic Violence Laws Discriminatory?

Both South Carolina’s criminal domestic violence laws and a companion statute that authorizes family court judges to issue orders of protection define a household member as:

  • A spouse or former spouse;
  • Two persons who have a child in common; or
  • A male and female who live together or formerly lived together.

The “male and female” language was added to South Carolina’s CDV laws by the legislature in 1994 which effectively removed same sex couples from the laws’ definition of household member.

What’s the Back Story?

The Supreme Court’s opinion doesn’t go into the details of the plaintiff’s case, but it is important to know why the case was filed and what the plaintiff was asking for. The plaintiff called the police twice in Richland County alleging that her former fiancée was harassing her and had assaulted her. She then asked a family court judge to issue an Order of Protection against her former fiancée. The family court refused to issue the Order because both parties were female and they were not married.

The plaintiff then filed an action for declaratory judgment in the Supreme Court’s original jurisdiction asking the Court to declare the domestic violence laws unconstitutional.

Was it Necessary for the Court to Strike the Definition Completely?

Everyone in the case agreed that the CDV laws, either as written or as applied to same sex couples, are unconstitutional. The only question was, what is the remedy?

The majority opinion: The majority opinion would strike the offending definition of household member completely. The effects of this decision include:

  • Denying domestic violence protection to the plaintiff in the case they are deciding.
  • Denying domestic violence protection to all other same sex couples in South Carolina.
  • Denying domestic violence protection to all unmarried couples who do not have a child in common.
  • Thousands of pending CDV cases based on cohabitation will be dismissed. Good for our clients, bad for South Carolina.

Justice Beatty’s opinion: It is not necessary to strike the offending portions of the statute. The Court can find that the definition of household member as a male and female who cohabit is unconstitutional as applied to the plaintiff (and other same sex couples). The effects of this decision would include:

  • Leaving South Carolina’s CDV laws intact as they are written.
  • Granting protection for the plaintiff in this case.
  • Granting protection for all other same sex couples in South Carolina.
  • Preserving domestic violence protections for all unmarried couples who do not have a child in common.
  • Thousands of pending CDV cases based on cohabitation do not get dismissed based on the Court’s decision.

Justice Few’s opinion: If the law discriminates against same sex couples, it would be unconstitutional. But there is no controversy for the Court to decide because the CDV laws already protect same sex couples. An inexplicable position considering that the case was filed after the family court denied protection to the plaintiff.

Absent an unpredictable fix from the legislature, it appears that the only remedy that accomplishes the goal of providing protection for same sex couples is Justice Beatty’s remedy of declaring that the statute is unconstitutional as applied to Doe and other same sex couples. Unless the goal is to continue to deny protection to same sex couples at the expense of all other unmarried couples…

 

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