Doe v. State
421 S.C. 490
| S.C. | 2017Background
- Petitioner Jane Doe (unmarried, formerly cohabiting with a same-sex partner) alleged assaults in 2015 and sought an Order of Protection under S.C. Protection from Domestic Abuse Act; family court denied relief citing the statute's definition of “household member.”
- The statutory definition at issue lists qualifying relationships and includes the phrase "a male and female who are cohabiting or formerly have cohabited," which excludes unmarried same-sex cohabitants on its face as written.
- Doe filed for declaratory judgment in the South Carolina Supreme Court seeking either statutory construction (treating "and" as "or") or a declaration that the definition is unconstitutional under the Fourteenth Amendment.
- The State urged the Court to construe or sever the language to avoid constitutional invalidation and, alternatively, to delay any broader invalidation to permit legislative correction.
- The Supreme Court held the definition unconstitutional as applied to Doe under the Equal Protection Clause (requiring only an as-applied remedy) and allowed Doe (and similarly situated unmarried same-sex cohabitants) to seek family-court protection notwithstanding the statutory language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statutory definition of "household member" unlawfully excludes unmarried same-sex cohabitants | Doe: the phrase "a male and female who are cohabiting or formerly have cohabited" intentionally excludes unmarried same-sex couples and denies equal protection | State: the statute can be construed (or severed) to include Doe; if not, any constitutional problem should be remedied by construction or legislative amendment rather than striking the Acts | Court: statute is not facially invalid but is unconstitutional as applied to Doe because it fails rational-basis review and treats similarly situated unmarried same-sex couples differently |
| Proper scope of challenge: facial vs. as-applied | Doe sought both facial invalidation and as-applied relief | State urged narrowing through statutory construction or severance; preservation of Acts emphasized | Court: rejected facial challenge (statute has many valid applications); permitted as-applied challenge and relief for Doe |
| Appropriate remedy (construction, severance, or invalidation) | Doe asked Court to read "and" as "or" to include any male or female cohabitant | State proposed construction/severance or delayed invalidation to permit legislative fix; cautioned against wholesale invalidation | Court: refused to rewrite statute or sever it; provided narrow as-applied declaration of unconstitutionality so Doe may seek protection; declined to invalidate Acts in full |
| Standard of review for equal protection claim | Doe argued no rational basis for excluding same-sex cohabitants; suggested intermediate scrutiny | State argued legislative purpose justified the phrasing | Court applied rational-basis (declined to decide higher scrutiny) and found no rational relation between exclusion and legislative purpose; Equal Protection violated as applied |
Key Cases Cited
- Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 528 S.E.2d 647 (S.C. 1999) (statutes presumed constitutional; courts should construe to preserve validity)
- United States v. Salerno, 481 U.S. 739 (1987) (facial-challenge standard: challenger must show statute invalid in all applications)
- Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) (distinction and practical focus between facial and as-applied challenges)
- Steffel v. Thompson, 415 U.S. 452 (1974) (describing facial invalidation as declaring a law invalid in toto)
- Travelscape, L.L.C. v. S.C. Dep't of Revenue, 391 S.C. 89, 705 S.E.2d 28 (S.C. 2011) (facial vs. as-applied challenge framework)
- Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding states' bans on same-sex marriage violate Equal Protection and Due Process)