Jane Doe, Petitioner, v. State of South Carolina, Respondent.
Appellate Case No. 2015-001726
The Supreme Court of South Carolina
November 17, 2017
Opinion No. 27728; Heard March 23, 2016 – Refiled November 17, 2017; IN THE ORIGINAL JURISDICTION
After careful consideration of the Respondent‘s petition for rehearing, the Court grants the petition for rehearing, dispenses with further briefing, and substitutes the attached opinions for the opinions previously filed in this matter.
s/ Donald W. Beatty C.J.
s/ John W. Kittredge J.
s/ Kaye G. Hearn J.
s/ John Cannon Few J.
s/ Costa M. Pleicones A.J.
Columbia, South Carolina
November 17, 2017
Jane Doe, Petitioner, v. State of South Carolina, Respondent.
Appellate Case No. 2015-001726
THE STATE OF SOUTH CAROLINA In The Supreme Court
Heard March 23, 2016 – Refiled November 17, 2017
Opinion No. 27728; IN THE ORIGINAL JURISDICTION
Bakari T. Sellers and Alexandra Marie Benevento, both of Strom Law Firm, L.L.C., of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Solicitor General Robert D. Cook, Deputy Solicitor General J. Emory Smith, Jr., and Assistant Attorney General Brendan Jackson McDonald, all of Columbia, for Respondent.
Richele K. Taylor and Thomas A. Limehouse, of the Office of the Governor, both of Columbia, for Amicus Curiae Governor Henry D. McMaster.
Meliah Bowers Jefferson, of Greenville, for Amicus Curiae South Carolina Coalition Against Domestic Violence and Sexual Assault.
Kevin A. Hall and M. Malissa Burnette, both of Columbia, for Amicus Curiae South Carolina Equality Coalition, Inc.
Leslie Ragsdale Fisk, of Greenwood, Tamika Devlin Cannon, of Greenville, and J. Edwin McDonnell, of Spartanburg, all for Amicus Curiae South Carolina Legal Services.
Lindsey Danielle Jacobs and Patricia Standaert Ravenhorst, both of Greenville; and Sarah Anne Ford, of Columbia, all for Amicus Curiae South Carolina Victims Assistance Network.
Alice Witherspoon Parham Casey, of Columbia, for Amicus Curiae Women‘s Rights and Empowerment Network.
CHIEF JUSTICE BEATTY: The Court granted Jane Doe‘s petition for original jurisdiction to consider whether the definition of “household member” in
I. Factual / Procedural History
This case arises out of an alleged domestic dispute between a former same-sex couple. Doe claims that she and her ex-fiancé cohabited between 2010 and 2015. Following the dissolution of the relationship, Doe moved out of the shared residence and relocated to Columbia.
On August 6, 2015, Doe contacted police to report that she was assaulted by her ex-fiancé the day before as she was leaving a Columbia hotel. On August 10, 2015, law enforcement was summoned to Doe‘s workplace after someone called regarding a disturbance in the parking lot. When the officers arrived, Doe claimed that her ex-fiancé and another individual followed her from her apartment to work. While no physical confrontation took place, Doe claimed that she felt threatened by her ex-fiancé‘s actions. Law enforcement filed incident reports for both events, the first was identified as “simple assault” and the second was identified as “assault-intimidation.”
Doe filed an action for declaratory judgment in this Court‘s original jurisdiction on August 14, 2015. Doe sought for this Court to declare unconstitutional the statutory definition of “household member” because it “leaves unmarried, same-sex victims of abuse without the benefit of the same remedy afforded to their heterosexual counterparts.” This Court granted Doe‘s petition for original jurisdiction by order dated November 5, 2015.5
II. Discussion
A. Arguments
In essence, Doe maintains the South Carolina General Assembly intentionally excluded her from consideration for an Order of Protection in family court “because of her sexual orientation.” As a result, Doe claims she was denied a remedy that is readily accessible to similarly situated opposite-sex couples. Doe explains that by purposefully defining “household member” as “a male and female who are cohabiting or formerly have cohabited” rather than in the disjunctive “male or female,” the General Assembly enacted a statutory definition that violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
Specifically, Doe asserts she has been arbitrarily and capriciously deprived of the right to protect her life as she cannot obtain an Order of Protection in family court. Further, Doe contends she is being denied the same protection afforded to opposite-sex, cohabiting couples even though there is no rational reason to justify this disparate treatment.
Although Doe acknowledges that an abuser in a same-sex relationship could be charged with criminal assault and battery and that she could obtain a Restraining Order in magistrate‘s court, she claims that these remedies are not commensurate with the heightened penalties and protections afforded by the Acts. In particular, Doe points to the provisions of the Domestic Violence Reform Act that authorize enhanced penalties for convicted abusers who commit additional acts of violence,
To remedy the disparate treatment and avoid the invalidation of the Acts in their entirety, Doe advocates for this Court to: (1) construe the word “and” in sections 16-25-10(3)(d) and 20-4-20(b)(iv) to mean “or“; and (2) declare the definition of “household member” to include any person, male or female, who is currently cohabiting with someone or who has formerly cohabited with someone.
In response, the State contends that any constitutional analysis could be avoided if the Court: (1) construes the phrase “male and female” as proposed by Doe; or (2) sever those words from the definition so that it reads only “cohabiting or formerly have cohabited.” The State asserts that such a construction would be consistent with and effectuate the legislative purpose of the Acts, which is to protect against violence between members of the same household.
Alternatively, if the Court strikes down the Acts based on a constitutional violation, the State submits the Court could delay implementing its decision to allow the General Assembly time to amend the statutes consistent with this Court‘s ruling. Ultimately, given the importance of the domestic violence statutes, the State implores this Court not to invalidate the Acts in their entirety based solely on the literal import of the word “and.”
B. Constitutional Analysis
1. Legislative History6
In 1994, the General Assembly amended sections 16-25-10 and 20-4-20 to delete “family or” preceding “household member,” add “persons who have a child in common,” and add/substitute “a male and female who are cohabiting or formerly have cohabited” for “and persons cohabitating or formerly cohabitating.” Act No. 519, 1994 S.C. Acts 5926, 5926-27; 5929.8
In 2005, the General Assembly retained the 2003 definition of “household member” in sections 16-25-10 and 20-4-20(b), but separately identified each qualifying household member with numbers in section 16-25-10 and lowercase Roman numerals in section 20-4-20(b). Act No. 166, 2005 S.C. Acts 1834, 1836; 1842.
In 2015, the General Assembly extensively amended the Criminal Domestic Violence Act to provide for the “Domestic Violence Reform Act.” Act No. 58, 2015 S.C. Acts 225 (effective June 4, 2015). While the new Act retained the definition of “household member,” it provided for, inter alia, enhanced penalties for one convicted of subsequent offenses of domestic violence, the offense of domestic violence of a high and aggravated nature, and the prohibition of possession of a firearm for one convicted of domestic violence.10
Although a review of the statutory evolution is not dispositive of the instant case, it is conclusive evidence the General Assembly purposefully included the phrase “male and female” within the definition of “household member” in 1994 and has retained that definition.
With this background in mind, we must presume the Acts are constitutional “unless [their] repugnance to the constitution is clear and beyond a reasonable doubt.” Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999). This general presumption of validity can be overcome only by a clear showing the act violates some provision of the constitution. Id. Accordingly, our scope of review is limited in cases involving a constitutional challenge to a statute “because all statutes are presumed constitutional and, if possible, will be construed to render them valid.” Hendrix v. Taylor, 353 S.C. 542, 550, 579 S.E.2d 320, 324 (2003) (internal quotation marks and citation omitted).
3. Facial versus “As-Applied” Challenge
Cognizant of the presumption of constitutionality, we must first determine the type of constitutional challenge posed by Doe. In her brief and the allegations in the declaratory judgment pleadings, it appears that Doe claims the statutes are facially invalid and invalid “as applied” to her. However, as will be discussed, we find that Doe can only utilize an “as-applied” challenge.
“The line between facial and as-applied relief is [a] fluid one, and many constitutional challenges may occupy an intermediate position on the spectrum between purely as-applied relief and complete facial invalidation.” 16 C.J.S. Constitutional Law § 153, at 147 (2015). Further, “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 331 (2010). Rather, “[t]he distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Id.
“A facial challenge is an attack on a statute itself as opposed to a particular application.” State v. Legg, 416 S.C. 9, 13, 785 S.E.2d 369, 371 (2016) (citing City of Los Angeles, Calif. v. Patel, ___U.S. ___, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015)). Consequently, in analyzing a facial challenge to the constitutional validity of a statute, a court “considers only the text of the measure itself and not its application to the particular circumstances of an individual.” 16 C.J.S. Constitutional Law § 163, at 161 (2015).
In an “as-applied” challenge, the party challenging the constitutionality of the statute claims that the “application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional.” Ada v. Guam Soc‘y of Obstetricians & Gynecologists, 506 U.S. 1011, 1011 (1992) (Scalia, J., Rehnquist, C.J., and White, J., dissenting), denying cert. to 962 F.2d 1366 (9th Cir. 1992). However, “finding a statute or regulation unconstitutional as applied to a specific party does not affect the facial validity of that provision.” Travelscape, 391 S.C. at 109, 705 S.E.2d at 39; see Sec‘y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 965 (1984) (discussing “as-applied” challenges and stating, “despite some possibly impermissible application, the remainder of the statute covers a whole range of easily identifiable and constitutionally proscribable conduct” (internal quotation marks and citation omitted)). Instead, “[t]he practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative.” Ada, 506 U.S. at 1011.
Here, Doe contends that by failing to include unmarried same-sex couples within the definition of “household member,” the statutes are not only facially invalid, but invalid “as applied” because they excluded her from consideration for an Order of Protection in family court based on her sexual orientation. We conclude that Doe has failed to establish that the statutes are facially unconstitutional.
In prefacing our analysis, we note that Doe has not launched a wholesale attack on the Acts or the definition of “household member” nor does she advocate for invalidation of the statutory provisions in their entirety. Rather, she merely seeks to be included with those eligible to receive an Order of Protection. While this fact is not dispositive of a facial challenge, as we must necessarily focus on the text of
Turning to the text of the definition of “household member,” we find that it is facially valid because it does not overtly discriminate based on sexual orientation. Though not an all-inclusive list, the statutes would be valid as to same-sex married couples, opposite-sex married couples, and unmarried opposite-sex couples who live together or have lived together. Because there are numerous valid applications of the definition of “household member,” it is not “invalid in toto.” Consequently, Doe must use an “as-applied” challenge to present her claim that she was intentionally excluded as a qualifying “household member” for an Order of Protection in family court. Thus, the question becomes whether the statutory definition of “household member” as applied denied Doe equal protection of the laws.
4. Equal Protection
The Equal Protection Clauses of our federal and state constitutions declare that no person shall be denied the equal protection of the laws.
“Courts generally analyze equal protection challenges under one of three standards: (1) rational basis; (2) intermediate scrutiny; or, (3) strict scrutiny.” Denene, Inc. v. City of Charleston, 359 S.C. 85, 91, 596 S.E.2d 917, 920 (2004). “If the classification does not implicate a suspect class or abridge a fundamental right, the rational basis test is used.” Id. “Under the rational basis test, the requirements of equal protection are satisfied when: (1) the classification bears a reasonable relation to the legislative purpose sought to be affected; (2) the members of the class are treated alike under similar circumstances and conditions; and; (3) the classification rests on some reasonable basis.” Id. “Those attacking the validity of legislation under the rational basis test of the Equal Protection Clause have the burden to negate every conceivable basis which might support it.” Boiter v. S.C. Dep‘t of Transp., 393 S.C. 123, 128, 712 S.E.2d 401, 403-04 (2011) (citations omitted).
Defining “household member” to include “a male and female who are cohabiting or formerly have cohabited,” yet exclude (1) a male and male and (2) a female and female who are cohabiting or formerly have cohabited,” fails this low level of scrutiny. Specifically, we conclude the definition: (1) bears no relation to the legislative purpose of the Acts; (2) treats same-sex couples who live together or have lived together differently than all other couples; and (3) lacks a rational reason to justify this disparate treatment.
Based on our interpretation of the Acts, the overall legislative purpose is to protect victims from domestic violence that occurs within the home and between members of the home. See Moore v. Moore, 376 S.C. 467, 476, 657 S.E.2d 743, 748 (2008) (“The Protection from Domestic Abuse Act was enacted to deal with the problem of abuse between family members. The effect of the Act was to bring the parties before a judge as quickly as possible to prevent further violence.” (quoting 17 S.C. Jur. Criminal Domestic Violence, § 14 (Supp. 2007))).
Statistics, as identified by the State, reveal that “women are far more at risk from domestic violence at the hands of men than vice versa.” Thus, the State maintains the General Assembly defined “household member” as “a male and female who are cohabiting or formerly have cohabited” to address the primary problem of domestic violence within opposite-sex couples.
Without question, the statistics relied on by the State are accurate. However, a victim of domestic violence is not defined by gender, as the word is non-gender specific.11
Moreover, although the Acts may have been originally enacted to address traditional findings of domestic violence, new research shows that individuals within
Because the Acts are intended to provide protection for all victims of domestic violence, the definition of “household member,” which eliminates Doe‘s relationship as a “qualifying relationship” for an Order of Protection, bears no relation to furthering the legislative purpose of Acts.
Additionally, the definition of “household member” treats unmarried, same-sex couples who live together or have lived together differently than all other couples. As we interpret the definition of “household member” a person, who fits within one of the following relationships, would be eligible for an Order of Protection: (1) a same-sex married or formerly married couple;12 (2) a same-sex couple, either married or unmarried, who have a child in common;13 (3) an opposite-sex married or formerly married couple; (4) an opposite-sex couple, either married or unmarried, who have a child in common; and (5) an unmarried opposite-sex couple who is living together or who has lived together.
Because it is clear that the definition of “household member” violates the Equal Protection clauses of our state and federal constitutions, we must declare it unconstitutional. See Joytime Distribs., 338 S.C. at 640, 528 S.E.2d at 650 (“A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates a provision of the constitution.“).15
5. Remedy
Having concluded that the definition of “household member” is unconstitutional as applied to Doe, we must next determine the appropriate remedy.
Clearly, in the context of the statutory scheme of the Acts, this Court cannot construe and effectively amend the statutes to change the plain language of “and” to “or” as proposed by the State. See Shelley Constr. Co. v. Sea Garden Homes, Inc., 287 S.C. 24, 28, 336 S.E.2d 488, 491 (Ct. App. 1985) (“We are not at liberty, under the guise of construction, to alter the plain language of the statute by adding words
Also, even though the Acts include severability clauses,16 there is no reason to employ them as we have found the sections containing the definition of “household member” are not facially invalid. Rather, the constitutional infirmity is based on their application to Doe, i.e., not including unmarried same-sex couples in the definition of “household member.” Thus, severance cannot rectify the under-inclusive nature of the definition.
Further, even if we were to attempt to remedy the constitutional infirmity through severance, we find severance of the entire phrase “a male and female who are cohabiting or formerly have cohabited” to be unavailing since the constitutional infirmity would remain. Protection afforded by the Acts would still be elusive to Doe and would no longer be available to opposite-sex couples who are cohabiting or formerly have cohabited. Yet, it would be available to unmarried persons such as former spouses (same-sex or not) and persons (same-sex or not) with a child in common. Absent an “as-applied” analysis, the “household member” definitional sections must be struck down. As a result, the Acts would be rendered useless. Such a drastic measure is neither necessary nor desired. See Thayer v. S.C. Tax Comm‘n, 307 S.C. 6, 13, 413 S.E.2d 810, 814-15 (1992) (“The test for severability is whether the constitutional portion of the statute remains complete in itself, wholly independent of that which is rejected, and is of such a character as that it may fairly be presumed that the Legislature would have passed it independent of that which is in conflict with the Constitution.” (internal quotation marks and citation omitted)). Accordingly, we reject any suggestion to sever the Acts as it is inconsistent with our rules of statutory construction and would contravene the intent of the General Assembly.
Finally, we decline to invalidate the Acts in their entirety. Such a decision would result in grave consequences for victims of domestic violence. To leave these
III. Conclusion
In order to address the important issue presented in this case and remain within the confines of the Court‘s jurisdiction, we declare sections 16-25-10(3) and 20-4-20(b) unconstitutional as applied to Doe. Therefore, the family court may not utilize these statutory provisions to prevent Doe or those in similar same-sex relationships from seeking an Order of Protection. Cf. Gartner v. Iowa Dep‘t of Pub. Health, 830 N.W.2d 335, 354 (Iowa 2013) (concluding that presumption of parentage statute, which expressly referred to a mother, father, and husband, violated equal protection as applied to a married lesbian couple to whom a child was born to one of the spouses during the couple‘s marriage; identifying appropriate remedy by stating, “Accordingly, instead of striking section 144.13(2) from the [Iowa] Code, we will preserve it as to married opposite-sex couples and require the [Iowa Department of Public Health] to apply the statute to married lesbian couples“).
Declared Unconstitutional As Applied.
KITTREDGE and HEARN, JJ., concur. Acting Justice Costa M. Pleicones, concurring in result only. FEW, J., concurring in part and dissenting in part in a separate opinion.
Jane Doe, Petitioner, v. State of South Carolina, Respondent.
Appellate Case No. 2015-001726
The Supreme Court of South Carolina
For two reasons, I would not declare the Acts unconstitutional. First, Doe and the State agree the Protection from Domestic Abuse Act protects Doe, and thus, there is no controversy before this Court. Second, Doe and the State are correct: ambiguity in both Acts—particularly in the definition of household member—requires this Court to construe the Acts to provide Doe the same protections they provide all citizens, and thus, the Acts are not unconstitutional.
I. There is no Controversy before the Court
Our courts will not address the merits of any case unless it presents a justiciable controversy. Byrd v. Irmo High Sch., 321 S.C. 426, 430-31, 468 S.E.2d 861, 864 (1996). In Byrd, we stated, “Before any action can be maintained, there must exist a justiciable controversy,” and, “This Court will not [decide] . . . academic questions or make an adjudication where there remains no actual controversy.” Id.; see also Peoples Fed. Sav. & Loan Ass‘n v. Res. Planning Corp., 358 S.C. 460, 477, 596 S.E.2d 51, 60 (2004) (“A threshold inquiry for any court is a determination of justiciability, i.e., whether the litigation presents an active case or controversy.“). Doe and the State agree the Protection from Domestic Abuse Act protects Doe, and therefore, there is no controversy.
Jane Doe filed an action in the family court seeking an order of protection from a threat of domestic violence pursuant to section 20-4-40 of the Protection from Domestic Abuse Act.
The State, however, agrees with the position Doe took in family court—the definition of household member includes unmarried, same-sex couples, and thus includes Doe. In its Answer, the State contends that any “constitutional problem associated with the definitions at issue . . . may be addressed through interpretation to encompass unmarried, same-sex couples.” In its return to Doe‘s petition for original jurisdiction, the State wrote, “There is . . . no evidence that the Legislature intentionally discriminated against same-sex couples.” At oral argument before this Court, the State disagreed with the statement “it is clear it is the legislative intent to exclude homosexual couples.”18 Also at oral argument, the State was asked—referring to the Protection from Domestic Abuse Act—“You‘re saying the statute covers Jane Doe?” to which the State responded, “Yes.” In making these statements, the State asks this Court to interpret the definition of “household member” to include Doe and partners in other non-marital same-sex domestic relationships.
If Doe had appealed the family court‘s ruling that the Protection from Domestic Abuse Act did not apply to her, she would have presented a justiciable controversy to this Court. Doe chose not to appeal, and she filed this action. When the State agreed with Doe that the Act should be interpreted to protect her, it eliminated any controversy. The majority overlooks this important detail. When both sides agree, there is no controversy.
II. The Acts are not Unconstitutional
In Joytime Distributors & Amusement Co. v. State, 338 S.C. 634, 528 S.E.2d 647 (1999), this Court repeated the longstanding rule of law that we will not construe
This Court has a very limited scope of review in cases involving a constitutional challenge to a statute. All statutes are presumed constitutional and will, if possible, be construed so as to render them valid. A legislative act will not be declared unconstitutional unless its repugnance to the constitution is clear and beyond a reasonable doubt. A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates a provision of the constitution.
338 S.C. at 640, 528 S.E.2d at 650; see In re Stephen W., 409 S.C. 73, 76, 761 S.E.2d 231, 232 (2014) (same); S.C. Pub. Interest Found. v. S.C. Transp. Infrastructure Bank, 403 S.C. 640, 645, 744 S.E.2d 521, 523 (2013) (same); Clarke v. S.C. Pub. Serv. Auth., 177 S.C. 427, 435, 181 S.E. 481, 484 (1935) (same); see also Abbeville Cty. Sch. Dist. v. State, 410 S.C. 619, 628, 767 S.E.2d 157, 161 (2014) (reciting the principle that “we will not find a statute unconstitutional unless ‘its repugnance to the Constitution is clear beyond a reasonable doubt‘“).
Under Joytime Distributors, we are constrained to interpret the Acts to include unmarried, same-sex couples unless the Acts “so clearly” exclude them “as to leave no room for reasonable doubt.” In other words, if the statutory text of the definition of “household member” in the Acts is clear, and if that text so clearly excludes unmarried, same-sex couples as to leave no reasonable doubt they are excluded, then the Court is correct to find the Acts unconstitutional. That text, however, is not clear.
We originally decided this case on July 26, 2017. Doe v. State, Op. No. 27728 (S.C. Sup. Ct. filed July 26, 2017) (Shearouse Adv. Sh. No. 28 at 55). In this substituted opinion the Court has reversed itself in two important respects.19 The first—now finding the Acts unconstitutional “as applied,” but previously finding the applicable subsections of the Acts unconstitutional on their face—is a significant
The Court‘s new analysis pays no attention to the text of the Acts. Rather, the majority‘s analysis is driven by the actions the General Assembly took in 1994, and is based solely on what the majority calls “legislative history.” This approach is improper because we have repeatedly declared we will not look beyond the text of the statute itself, and thus will not consider other indicators of legislative intent such as “history,” unless the text of the statute is ambiguous.22 See, e.g., Smith v. Tiffany, 419 S.C. 548, 555, 799 S.E.2d 479, 483 (2017) (“If a statute is clear and explicit in its language, then there is no need to resort to statutory interpretation or legislative intent to determine its meaning.” (quoting Timmons v. S.C. Tricentennial Comm‘n, 254 S.C. 378, 401, 175 S.E.2d 805, 817 (1970))); 419 S.C. at 556, 799 S.E.2d at 483 (“Absent an ambiguity, there is nothing for a court to construe, that is, a court should not look beyond the statutory text to discern its meaning.“).
It is in fact perfectly reasonable to construe the Acts to protect unmarried, same-sex couples. In 1994, “household member” was defined in terms of pairs or groups of people, “spouses, former spouses, parents and children, persons related . . . .” See supra note 8. In that context, the Acts logically applied when domestic violence occurred between the members of a defined pair or group. In 2005, however, the definitions were amended so that the primary subsections of each definition are now framed in terms of individual people: “a spouse; . . . a former spouse.” See Act No. 166, 2005 S.C. Acts 1834, 1836.23 Under this current structure, the Acts apply when domestic violence is committed upon the members of the defined group.
The Protection from Domestic Abuse Act follows this structure. The Act “created an action known as a ‘Petition for an Order of Protection’ in cases of abuse to a household member.” § 20-4-40 (emphasis added). The “petition for relief must allege the existence of abuse to a household member.” § 20-4-40(b) (emphasis added). Under the current version of the Protection from Domestic Abuse Act, therefore, the Act operates to protect citizens from abuse “to” a person listed in the
To understand this point, consider the operation of the Acts regarding individuals included in the first and second subsections of the definition—“a spouse” and “a former spouse.” A person may seek an order of protection under the Protection from Domestic Abuse Act “in cases of abuse to a household member.” If we apply that provision using the first subsection of the definition, an order of protection is available “in cases of abuse to [a spouse].” If we apply that provision using the second subsection of the definition, an order of protection is available “in cases of abuse to [a former spouse].”
Now consider the operation of the Acts regarding individuals included in the fourth subsection—“a male and female who are cohabiting or formerly have cohabited“—the subsection the majority finds unconstitutional. An order of protection is available “in cases of abuse to [a male . . .],” or “in cases of abuse to [a female . . .].” In fact, an order of protection is available “in cases of abuse to [a male and a female].” In other words, an order of protection is available when domestic violence is committed upon members of unmarried, same-sex couples of both genders—male and female. Doe is covered.
The interpretation I have just explained is not only a reasonable interpretation, it is the only reasonable interpretation. The majority‘s interpretation that the General Assembly intended to exclude same-sex couples is based on the premise that the subsection applies only when “a male and female” are cohabiting together. This interpretation works only if the Acts are construed to apply when domestic violence occurs between members of a defined pair or group. That construction was eliminated, however, with the 2005 amendments. As discussed above, the Acts now apply when abuse is committed upon the members of the defined group. Thus, the majority‘s interpretation leads to an absurd result. The General Assembly clearly did not intend the Acts to apply “in cases of abuse to [a male and female].” Under such a reading the Acts would apply only when there are two victims.
The presence of the word “and” instead of “or” in the fourth subsection of the definition of household member may be troubling, but it does not require the conclusion the General Assembly intentionally excluded unmarried, same-sex couples from the Acts. Rather, it merely demonstrates the ambiguity in the definition. It is more reasonable to resolve that ambiguity in favor of constitutionality by including Doe and other members of unmarried, same-sex
I respectfully believe Doe and other members of unmarried, same-sex couples are covered by the Acts and the Acts are therefore constitutional.
Notes
(a) a spouse;
(b) a former spouse;
(c) persons who have a child in common; or
(d) a male and female who are cohabiting or formerly have cohabited.
Finally, any claim that “there is no controversy” before the Court is without merit. While the parties may agree that Doe should be protected under the Acts, the parties disagree as to whether the definition of “household member” is constitutional and the appropriate remedy. Additionally, even if the dissent‘s position were meritorious, it would not eliminate the existence of a controversy. See 1A C.J.S. Actions § 16, at 259 (2016) (defining “controversy” and stating, “In a limited sense, it may be defined as an allegation of fact on one side which is denied by the other side, but the element of dispute is not essential to constitute a justiciable controversy, as such a controversy may exist even if all of the facts and the law are admitted by all the parties” (footnotes omitted)).
In 1984, section 20-4-20(b) stated: “‘Family or household member’ means spouses, former spouses, parents and children, and persons related by consanguinity or affinity within the second degree.”
In 1994, section 20-4-20(b) read: “‘Household member’ means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.” (Emphasis added.)
In 2003, section 20-4-20(b) was amended to read: “‘Household member’ means spouses, former spouses, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.” (Emphasis added.)