On July 26, 2017 the South Carolina Supreme Court, in the case of Doe v. State, 421 S.C. 490, 808 S.E.2d 807 (2017), remedied the equal protection infirmity of a Domestic Abuse statute that granted protection to opposite sex cohabitants but denied that protection to same sex cohabitants by denying that protection to all unmarried cohabitants. Stuck with language that afforded the protection to a “male and female who are cohabiting or formerly have cohabited,” the Supreme Court basically determined that in 1994–when this language was added–the state legislature was so homophobic that it would never have intended to apply this protection to same sex couples. While likely true in 1994, it’s not so true in 2017–and literally no one was advocating the elimination of domestic abuse protection to all unmarried cohabiting couples. Thus predicting the immanent reversal of this decision–as I did–was not an act of supernatural clairvoyance.
Sure enough, on November 17, 2017, the Supreme Court reversed itself, with the previous majority basically, but not completely, adopting the reasoning of Chief Justice Beatty’s previously concurring in part, dissenting in part opinion and with Beatty now drafting the majority opinion. In doing so, the Supreme Court held that the household member definition would apply to all unmarried cohabiting or formerly cohabiting couples, regardless of their genders. However, in cobbling a majority, the basis for the Supreme Court’s decision is opaque. It found that the definition was not facially unconstitutional but was unconstitutional as applied to Doe. It refused to adopt the state’s suggestion of simply turning the “and” into an “or” in the phrase “male and female,” determining that this would be improper judicial legislating. Yet, somehow, it determined that the protection should apply to all cohabiting couples, irrespective of gender. Anyone who can explain how the Supreme Court reached this result is urged to respond with a comment.
The original opinion in Doe was a poorly reasoned disaster. While correctly noting that a domestic abuse statute that protected unmarried opposite sex cohabitants but not unmarried same sex cohabitants was constitutionally impermissible, the remedy it imposed had no public support. While one can understand the court’s reluctance to turn an “and” into an “or,” the language “male and female” was unnecessary to the statute and could have been struck as infirm as the respective genders of the cohabiting couple is what made the subsection unconstitutional. One can understand the Supreme Court’s dilemma in avoiding the appearance of judicial legislating while not eviscerating a domestic abuse statute’s protections in a state that leads the nation in domestic violence deaths per capita. Perhaps an opaque decision was the solution to this Gordian knot.
Today when lots of couples, of opposite sex or same sex, are cohabiting with out marriage then all the laws of marital cruelty must be made applicable, this includes domestic violence.
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