854 S.E.2d 74
N.C. Ct. App.2020Background
- Plaintiff (M.E.) sought an ex parte and permanent Domestic Violence Protective Order (DVPO) under N.C.G.S. Chapter 50B after an alleged assault by her former same-sex dating partner (T.J.).
- Chapter 50B’s definition of “personal relationship” limited dating-relationship coverage to "persons of the opposite sex," so the trial court denied the Chapter 50B relief and instead granted Chapter 50C no-contact relief.
- The trial court found Plaintiff’s factual allegations significant and that it would have granted a 50B DVPO had the parties been opposite-sex, but concluded the statute precluded relief for same-sex dating partners.
- On appeal Plaintiff challenged the denial as an as-applied violation of substantive and procedural due process and equal protection under the North Carolina and U.S. Constitutions.
- The Court of Appeals appointed an amicus to brief defenses of the trial court’s ruling because defendant did not file an appellee brief; the court later limited the amicus’s procedural powers.
- The Court of Appeals reversed: it held N.C.G.S. § 50B-1(b)(6) unconstitutional as applied to Plaintiff and remanded for entry of an appropriate Chapter 50B order; the majority applied state constitutional review, full Fourteenth Amendment analysis, and held Bostock supports treating sexual-orientation/gender-identity discrimination as sex-based.
Issues
| Issue | Plaintiff's Argument | Defendant's/State/Trial Court Argument | Held |
|---|---|---|---|
| Whether N.C.G.S. § 50B‑1(b)(6) (limiting dating-relationship DVPOs to opposite‑sex partners) violated state due process and equal protection as applied | Statute unlawfully denied DVPO protection to same‑sex dating victims; as‑applied challenge under NC Constitution (due process & equal protection) | Statute’s plain language excludes same‑sex dating partners; legislature, not court, must expand statutory categories; trial court lacked authority to grant DVPO beyond text | Reversed: as‑applied the statute violates NC due process and equal protection; Chapter 50B must be applied without opposite‑sex limitation for dating relationships |
| Whether the statute violated the Fourteenth Amendment (due process and equal protection/full Fourteenth Amendment review) | The opposite‑sex limitation discriminates against LGBTQ+ persons, abridges fundamental liberties (liberty, dignity, personal security) and is motivated by invidious classification; requires heightened review | Same as state argument: textual statutory limit and legislative prerogative; no congressional/state counter‑argument defending constitutionality was advanced | Reversed: under full Fourteenth Amendment analysis (incorporating Romer/Lawrence/Windsor/Obergefell) the statute is unconstitutional as applied; strict or heightened scrutiny applies and the statute fails |
| Whether Bostock’s statutory holding (Title VII) affects Fourteenth Amendment analysis by treating sexual‑orientation/gender‑identity discrimination as sex discrimination | Plaintiff: Bostock shows discrimination based on sexual orientation/gender identity necessarily involves discrimination based on sex; triggers at least intermediate review | Implicit counter: classification is textual/statutory; any Bostock extension is a separate question | Court: Bostock is persuasive; discrimination against LGBTQ+ status is discrimination "because of sex," thus at least intermediate scrutiny applies and supports striking the statute as applied |
| Proper role/limits of court‑appointed amicus and procedural jurisdictional issues raised by amicus | Plaintiff: appeal properly before court; amicus may brief but cannot expand the record or substitute for parties | Amicus argued jurisdictional defects and filed motions (court concluded amicus lacked standing for certain motions) | Court held amici may brief issues within the record and limited scope; amicus motions to dismiss/supplement beyond party record were nullities; review limited to settled record and parties’ arguments |
Key Cases Cited
- Windsor v. United States, 570 U.S. 744 (2013) (federal law denying recognition to same‑sex marriages demeaned and burdened liberty and equality; animus‑based review)
- Romer v. Evans, 517 U.S. 620 (1996) (laws singling out homosexuals for disfavored legal status are born of animus and lack a legitimate relation to government interests)
- Lawrence v. Texas, 539 U.S. 558 (2003) (substantive due process protects intimate choices and invalidates laws rooted in moral disapproval of homosexual conduct)
- Obergefell v. Hodges, 576 U.S. 644 (2015) (same‑sex couples have fundamental right to marry; equal dignity and liberty protections apply)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (employment discrimination against homosexual or transgender persons is discrimination ‘‘because of sex,’’ informing constitutional analysis of sex‑based disparate treatment)