Equal protection challenge to domestic abuse statute leaves law in chaos

The July 26, 2017 Supreme Court opinion in Doe v. State has left South Carolina’s Protection from Domestic Abuse [a civil, family court, statute] and Criminal Domestic Violence [a criminal statute] laws in chaos.

Doe stems from an equal protection challenge brought a lesbian who sought protection from domestic abuse against her ex-fiancé. That statute, S.C. Code § 20-4-20, included in its definition of “household members” protected by the statute, “a male and female who are cohabiting or formerly have cohabited.” However it did not cover same-sex cohabiting couples. The family court judge, finding that Doe’s ex-fiancé did not meet the definition of household member, dismissed her petition.

After the family court dismissed the petition, rather than filing an appeal Doe filed a declaratory judgment action in the Supreme Court, challenging that code section’s definition of household member as denying her equal protection. The Supreme Court accepted jurisdiction and neither side disputed that definition of household member denied Doe’s right to equal protection as “[t]he United States Supreme Court has unquestionably found discrimination against same-sex couples is violative of Equal Protection.” However in a 3-1-1 split, the Supreme Court disagreed about the proper remedy for this violation.

The issue was a 1994 amendment to South Carolina’s Criminal Domestic Violence and Protection from Domestic Abuse statutes. As of 1984, South Carolina’s Criminal Domestic Violence statute offered protection to “persons cohabitating or formerly cohabitating” while the Domestic Abuse statute offered no protection to unmarried cohabiting couples. In 1994 the definitions of household members were harmonized, with both statutes including “a male and female who are cohabiting or formerly have cohabited.”

Finding this definition of household member violated Doe’s right to equal protection, the Supreme Court found these provisions of the domestic abuse and domestic violence statutes to be unconstitutional. The Supreme Court also found that this provision of the definition of household member was severable from the remaining definitions. However, the majority opinion was unwilling to construe “a male and female” as applying to same-sex couples. In responding to the dissent it reasoned:

Justice Few concludes that “male and female” can reasonably include all same-sex cohabiting or formerly cohabitating couples. The plain language is clear and the intent is unmistakable: the legislative history of the Acts unequivocally demonstrates the General Assembly intentionally excluded same-sex couples from the protections of the Acts.

Finding this provision of the definition of “household members” deliberately excluded unmarried, same-sex couples, the majority decided to remedy the constitutional defect by removing all unmarried cohabiting couples (except those with children in common) from the protections of the domestic abuse and criminal domestic violence statutes. It therefore excised these provisions of the household member definition from the statutes.

Chief Justice Beatty, in a partial dissent, disagreed with the remedy. He would have found the definition of household member denied equal protection to Doe “as applied” and would not have struck any of the household member definitions from the statutes.

Justice Few also would not have removed domestic abuse protections from cohabiting couples. Because Doe did not appeal the family court’s decision, and because no party to the declaratory action argued that these statutes did not protect Doe, he would have found no justiciable controversy. Further he believed the definition of “a male and a female” in the applicable statutes to be ambiguous and would have applied it to all cohabiting couples, thus rendering the statutes constitutional.

Appellate Courts believe it improper to “revise” or “redraft” statutes to correct constitutional infirmaries. In Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008), I raised a due process challenge to the domestic abuse statute at issue in Doe. There, the Supreme Court was equally loath to “redraft” a statute to correct a constitutional infirmary, so it simply distinguished the adjudicative effects between an emergency domestic abuse hearing and a regular domestic abuse hearing. Nothing in the statute would support this distinction, but it allowed the court to address the constitutional deficiency without striking the statute.

Given concerns about domestic violence noted in the Doe opinion, the Supreme Court hopes the state legislature will redraft these statutes to protect all cohabiting couples. However the legislature may prefer to offer protections to no cohabiting couples if such protection would have to extend to same-sex couples–and, until the statute is amended, no cohabiting person can seek these protections.

With three members of the Supreme Court determining the proper remedy was to remove these protections from all cohabiting couples, there was apparent, immediate, chaos. Prosecutors could no longer prosecute criminal domestic violence allegations involving cohabiting couples (and would have to dismiss such prosecutions that were ongoing or concluded). The family court could no longer offer protection from domestic abuse to cohabiting couples. Within two days the Supreme Court granted a stay of its decision. One suspects an amended opinion, changing the remedy to have the statutes apply to all cohabiting persons, may be forthcoming.

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