Jane Doe v. State, Appellate Case No. 2015-001726

CourtUnited States State Supreme Court of South Carolina
PartiesJane Doe, Petitioner, v. State of South Carolina, Respondent.
Docket NumberOpinion No. 27728,Appellate Case No. 2015-001726
Decision Date26 July 2017

Jane Doe, Petitioner,
State of South Carolina, Respondent.

Appellate Case No. 2015-001726
Opinion No. 27728


Heard March 23, 2016
July 26, 2017



John S. Nichols, of Bluestein Nichols Thompson & Delgado, L.L.C., and Bakari T. Sellers and Alexandra Marie Benevento, both of Strom Law Firm, L.L.C., all 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.

ACTING JUSTICE PLEICONES: We agreed to hear this matter in our original jurisdiction. The issue in this case arises from the classifications contained in South Carolina's domestic violence statutes. Specifically, the classifications

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provide that only "Household member[s]," defined as, inter alia, a "male and female who are cohabiting or formerly have cohabited," are protected under the statutes. (Emphasis supplied). Petitioner challenges these classifications, arguing they unconstitutionally exclude unmarried, cohabiting or formerly cohabiting, same-sex couples from the protection of the domestic violence statutes—the very protections afforded their opposite-sex counterparts. Petitioner therefore asks this Court to declare that the subsections which exclude same-sex couples—S.C. Code Ann. § 16-25-10(3)(d) (effective June 4, 2015), of the Domestic Violence Reform Act, and S.C. Code Ann. § 20-4-20(b)(iv) (effective June 4, 2015), of the Protection from Criminal Domestic Violence Act (collectively "the Acts")—violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. We agree the definitional subsections at issue offend the Equal Protection Clause, and, therefore, strike the subsection from each Act.1


The General Assembly originally passed the Acts in 1984. At that time, while § 20-4-20 did not provide protection for any unmarried, cohabiting couples, § 16-25-10 stated: "As used in this article, 'family or household member' means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, and persons cohabitating or formerly cohabitating." (Emphasis supplied). Thus, as initially enacted, there were no gender-based classifications as to persons protected under the Acts.

In 1994, the original definitions of "Household member[s]" were amended and replaced with more narrow definitions providing domestic violence protection for, inter alia, "a male and female who are cohabiting or formerly have cohabited."2

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See Act No. 484, 1984 S.C. Acts 2029; Act No. 519, 1994 S.C. Acts 5926, 5926-27; 5929 (emphasis supplied). Subsequent amendments to the Acts in 2003 and 2005 retained the gender-based distinctions made in 1994. See Act No. 92, 2003 S.C. Acts 1538, 1541, 1550; Act No. 166, 2005 S.C. Acts 1834, 1836, 1842.

In June 2015, the General Assembly substantially amended the Domestic Violence Reform Act,3 which provided harsher penalties for offenders, including a partial gun ban, and authorized judges to issue permanent Orders of Protection.4 See Act No. 58, 2015 S.C. Acts 225 (effective June 4, 2015). These most recent amendments left intact the gender-based designations of "Household member[s]" first adopted in 1994. The distinction—affording protection under the Acts to unmarried, cohabiting or formerly cohabiting, opposite-sex couples only—is challenged as a violation of Equal Protection.

In this case, following an alleged domestic violence incident between petitioner and her former same-sex partner, petitioner sought an Order of Protection from the Richland County Family Court. The Family Court denied her request, finding she was not entitled to protection under the Protection from Criminal Domestic Violence Act due to the statutory definitions of "Household member." We agreed

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to hear petitioner's constitutional challenges to these definitional statutory subsections in our original jurisdiction.


Do the subsections at issue, which exclude from domestic violence protection unmarried, cohabiting or formerly cohabiting, same-sex couples, violate the Equal Protection Clause?


The Acts provide remedies for victims of domestic violence who meet the statutory definition of "Household member[s]," currently defined as: a spouse, a former spouse, persons who have a child in common, or a "male and female who are cohabiting or formerly have cohabited." § 16-25-10(3); § 20-4-20(b) (emphasis supplied). In affording protection to victims of domestic violence, both Acts protect persons in an unmarried, cohabiting or formerly cohabiting relationship, but only if the relationship is between a male and a female. Petitioner contends the definitions of "Household member[s]," delineating into classes unmarried, cohabiting or formerly cohabiting couples based on the gender of the persons in the relationship, offend the Equal Protection Clause. We agree.

It is undeniable that in 1994, the General Assembly divided the original class designated "persons cohabiting or formerly cohabiting" into two sub-classes. The members of the first sub-class—consisting of unmarried, cohabiting or formerly cohabiting, opposite-sex couples—remain entitled to seek protection under the Acts if they become victims of domestic violence. To the contrary, since 1994, similarly situated same-sex couples are no longer afforded such protection.

The Equal Protection Clause states, "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause applies to government classifications, which occur when government action imposes a burden or confers a benefit on one class of persons to the exclusion of others. See Russell W. Galloway, Jr., Basic Equal Protection Analysis, 29 Santa Clara L. Rev. 121, 123 (1989) (citing San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 59 (1973) (Stewart, J., concurring) ("The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.")). A government classification does not violate the Equal Protection Clause, however, if the classification can

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survive the applicable level of scrutiny. Denene, Inc. v. City of Charleston, 359 S.C. 85, 91, 596 S.E.2d 917, 920 (2004) (citing 16B Am.Jur.2d Constitutional Law § 812 (1998)). While the applicable level of scrutiny may be unclear,5 we find the statutory subsections cannot survive even the most government-friendly, deferential level of scrutiny—the rational basis standard.

A statutory classification does not violate the Equal Protection Clause under the rational basis standard if: (1) the classification bears a reasonable relation to the legislative purpose sought to be achieved; (2) the members of the class are treated alike under similar circumstances and conditions; and (3) the classification rests on some reasonable basis. See Curtis v. State, 345 S.C. 557, 574, 549 S.E.2d 591, 599-600 (2001) (citing Whaley v. Dorchester Cnty. Zoning Bd. of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999)). In this case, we cannot find a reasonable basis for providing protection to one set of domestic violence victims—unmarried, cohabiting or formerly cohabiting, opposite-sex couples—while denying it to others.6 Accordingly, we find no constitutionally valid rational basis for the

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statutory classifications created by the definitional subsections at issue under the Acts.

Having found the definitional subsections excluding unmarried, cohabiting or formerly cohabiting, same-sex couples violate the Equal Protection Clause, the inquiry then becomes: What is the remedy?

A statute may be constitutional and valid in part and unconstitutional and invalid in part. See Thayer v. South Carolina Tax Comm'n, 307 S.C. 6, 12-13, 413 S.E.2d 810, 814-15 (1992) (citing Strom v. Amvets, 280 S.C. 146, 311 S.E.2d 721 (1984)). Where a portion of a statute is deemed unconstitutional, courts should determine whether the unconstitutional portion may be severed from the remainder of the statute. See Dean v. Timmerman, 234 S.C. 35, 43, 106 S.E.2d 665, 669 (1959) (citation omitted). The test for severability is whether the constitutional7 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. . . ." Id. (quoting Shumpert v. South Carolina Dep't of Highways, 306 S.C. 64, 409 S.E.2d 771 (1991) (citation omitted)). The existence of a severability clause within a piece of legislation indicates the General Assembly's intent that the several parts of the legislation be treated independently, and that in the event a portion of the legislation is found unconstitutional, the remainder be allowed to stand. See State v. Dykes, 403 S.C. 499, 509, 744 S.E.2d 505, 510 (2013); Joytime Distributors & Amusement Co. v. State, 338 S.C. 634, 648-49, 528 S.E.2d 647,

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654 (1999).

In this case, the test for severability is met. Specifically, all provisions of the Acts, save the discriminatory definitions, are capable of being executed in accordance with the legislative intent. Thayer, 307 S.C. at 12-13, 413 S.E.2d at 814-15. Further, it may be fairly presumed the General Assembly would have passed each Act absent the offending provision, and both Acts contain severability clauses. See Joytime Distributors, 338 S.C. at 648-49, 528 S.E.2d at 654; Thayer, 307 S.C. at 12-13, 413 S.E.2d at 814-15. Therefore, the remedy for this constitutional infirmity is to sever the discriminatory provision from each Act.8 See Thayer, 307 S.C. at 13, 413 S.E.2d at 814-15. The remainder of each Act—providing domestic violence protection...

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