South Carolina’s highest court has ruled a section of the state’s domestic violence law is unconstitutional because it does not give battered unmarried same-sex partners the same protections as their heterosexual counterparts.
A woman — who is referred to as “Jane Doe” in the filings– sued the state last year over an apparent loophole in a 2015 domestic violence reform law. The law creates tougher penalties for abusive partners when their victims apply for orders of protection against them. It allows “household members” to get the protection orders, but uses an older law’s definition of “household member” to be current or former spouses, those who share a child or were at some point in a cohabitating relationship between a man and woman.
“Doe” filed the lawsuit after a Richland County court would not grant her an emergency order of protection when she was assaulted and choked by her lesbian ex-fiancé. The judge in that case ruled the law only specifically covers unmarried cohabiting partners if they are of the opposite sex. The State Attorney General’s Office argued last year the law was not meant to discriminate and asked the court to interpret it as already protecting unmarried, same-sex partners.
In the majority opinion, former chief justice Costa Pleicones said the law’s disparity violates the U.S. Constitution’s “Equal Protection” clause. “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,” Pleicones wrote.
There was no public conversation about the “household members” language during the 2015 debate. Even an attorney who argued on behalf of Jane Doe, former State Rep. Bakari Sellers, said he learned about the apparent gap while researching this particular case.
Pleicones’ opinion specifies that the court’s decision does not toss out the entire domestic violence law, but does invalidate language about cohabiting couples. “The remainder of each Act—providing domestic violence protection to “Household member[s]” defined as a spouse, former spouse, or persons who have a child in common—remain in effect,” he said.
State Attorney General Alan Wilson expressed concerns about the consequences of Pleicones eliminating the cohabitation language entirely. “The approach taken… makes it impossible for us to protect victims of dating violence under our current domestic violence laws,” he said in a statement. “Instead of extending the protections of South Carolina’s domestic violence laws to a larger group of couples, the effect of this decision will limit those protections to a much smaller group of people.”
Those concerns were echoed by dissenting Chief Justice Donald Beatty and Associate Justice John Few. Beatty said the court should have instead ruled the old definition of “household members” unconstitutional rather than strike language from the 2015 law. Few argued the law could be interpreted as already protecting unmarred same-sex victims since there was little evidence legislators intended to exclude them at the time.