Doe v. State – SC Supreme Court Issues New Domestic Violence Decision

The S.C. Supreme Court has reissued its July opinion in Doe v. State, this time finding that South Carolina’s domestic violence laws (civil and criminal) are unconstitutional as applied to same-sex couples.

The difference is that their July opinion, in this case, would have completely struck the definition of household member as unconstitutional which would have resulted in removing domestic violence protections from more alleged victims. The new decision keeps SC domestic violence laws in place and does not deny standing to alleged victims based on their sexual preference.

The Doe v. State saga reeked of anti-gay bias from the beginning and presented horrible optics for both the legislature and the Supreme Court. Chief Justice Beatty is the only member of the Court that showed integrity and a lack of bias, and I think that we have him to thank for the final decision that got it right.

SC’s Domestic Violence Laws were Intended to be Discriminatory

Prior to 1994, South Carolina’s domestic violence laws, including criminal domestic violence (CDV) and the laws covering when an abused spouse or partner can seek a protective order, applied to same-sex couples.

In 1994, our legislature amended the statutes to specify that criminal charges for CDV could only be brought or a protective order for domestic violence could only be issued for heterosexual couples by defining 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.

At the time of the amendment, gay marriage was illegal in South Carolina and most of the country. There was no reason to change the italicized language in the domestic violence statutes other than to exclude same-sex couples from their protection.

A Majority of our Supreme Court Would Have Continued the Discrimination

In the Court’s July opinion, all of the Justices except Chief Justice Beatty would have either: 1) continued to exclude same-sex couples; or 2) pretended that the laws did not discriminate.

The Court’s July opinion held that the definition of household member violated the Equal Protection Clause. Their remedy would have been to strike the offending definition of household member – continuing to exclude same-sex couples at the expense of also excluding non-married heterosexual couples who did not have a child in common.

Equal denial = equal protection was their rationale, it seemed.

Beatty issued a separate opinion in July that would have found that the definition of household member is unconstitutional as applied to the plaintiff (and other same-sex couples), which is what the new opinion also decided.

Justice Few stayed the course, arguing then and now that there was no discrimination because the laws do apply to same-sex couples. Although the plain language of the statutes exclude same-sex couples and the family courts were actually denying protective orders based on the statute.

The new opinion found what may have been the only path to undoing the legislature’s purposeful discrimination without continuing to discriminate against same-sex couples. I applaud Chief Justice Beatty who saw it clearly from the beginning and whose efforts prevented a miscarriage of justice by our Supreme Court.

Columbia, SC Criminal Defense Lawyer

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