Doe v. State

The Supreme Court of South Carolina
Jane Doe, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2015-001726

ORDER

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
 THE STATE OF SOUTH CAROLINA
In The Supreme Court

Jane Doe, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2015-001726

IN THE ORIGINAL JURISDICTION

Opinion No. 27728
Heard March 23, 2016 – Refiled November 17, 2017

DECLARATORY JUDGMENT ISSUED

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.
 David Matthew Stumbo, of Greenwood and Barry J.
Barnette, of Spartanburg, both for Amicus Curiae
Solicitors' Association of South Carolina, Inc.

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
South Carolina Code section 16-25-10(3) of the Domestic Violence Reform Act and
section 20-4-20(b) of the Protection from Domestic Abuse Act1 (collectively "the

1
The Acts define "household member" as:

(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.
Acts") is unconstitutional under the Due Process and Equal Protection Clauses of
the Fourteenth Amendment2 to the United States Constitution. Specifically, Doe
contends the provisions are unconstitutional because neither affords protection from
domestic abuse for unmarried, same-sex individuals who are cohabiting or formerly
have cohabited. In order to remain within the confines of our jurisdiction and
preserve the validity of the Acts, we declare sections 16-25-10(3) and 20-4-20(b)
unconstitutional as applied to Doe.

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."

S.C. Code Ann. § 16-25-10(3) (Supp. 2017) (emphasis added); id. § 20-4-20(b)
(2014) (defining "household member" identical to section 16-25-10(3), but
designating provisions with lowercase Roman numerals rather than letters).
2
U.S. Const. amend XIV, § 1 ("All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws."); see S.C.
Const. art. I, § 3 ("The privileges and immunities of citizens of this State and of the
United States under this Constitution shall not be abridged, nor shall any person be
deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.").
 On August 12, 2015, Doe sought an Order of Protection3 from the Richland
County Family Court. The family court judge summarily denied Doe's request,
citing a lack of jurisdiction pursuant to section 20-4-20(b), which defines "household
member" in the Protection from Domestic Abuse Act.4

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

3
An "Order of Protection" is defined as "an order of protection issued to protect the
petitioner or minor household members from the abuse of another household
member where the respondent has received notice of the proceedings and has had an
opportunity to be heard." S.C. Code Ann. § 20-4-20(f) (2014).
4
Subsequently, Doe sought a Restraining Order in a Richland County magistrate's
court. On August 13, 2015, a magistrate court judge granted Doe a Temporary
Restraining Order that was converted to a Restraining Order on December 17, 2015.
5
The author of the dissenting opinion concludes there is no controversy for which
the Court should exercise its original jurisdiction. For several reasons, we disagree
with this conclusion. Initially, in granting Doe's petition for original jurisdiction, we
found the case satisfied the requirements of our appellate court rules. See Rule
245(a), SCACR (authorizing Supreme Court to entertain matters in its original
jurisdiction "[i]f the public interest is involved, or if special grounds of emergency
or other good reasons exist"). Further, this Court has exercised its authority to grant
a petition for original jurisdiction where a legitimate constitutional issue has been
raised. See, e.g., Am. Petroleum Inst. v. S.C. Dep't of Revenue, 382 S.C. 572, 677
S.E.2d 16 (2009) (accepting matter in original jurisdiction to address Petitioners'
claim that Act at issue violated the "one subject" provision of the South Carolina
Constitution), holding modified by S.C. Pub. Interest v. Lucas, 416 S.C. 269, 786
S.E.2d 124 (2016); Tucker v. S.C. Dep't of Highways & Pub. Transp., 314 S.C. 131,
442 S.E.2d 171 (1994) (exercising original jurisdiction to determine whether the
statute at issue violated the South Carolina Constitution); Thompson v. S.C. Comm'n
on Alcohol & Drug Abuse, 267 S.C. 463, 467, 229 S.E.2d 718, 719 (1976)
(exercising original jurisdiction and holding that provisions of the Uniform Alcohol
and Intoxication Treatment Act violated the Equal Protection clauses of the federal
and state constitutions; noting that the "questions involved are of such wide concern,
 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,

both to law enforcement personnel and to the public, that the court should determine
the issues in this declaratory judgment action").

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)).
restrictions on a convicted abuser's ability to carry a firearm, additional penalties for
violations of protection orders, and more stringent expungement requirements.

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

6
The author of the dissenting opinion takes issue with our reference to "legislative
history." Interestingly, the dissent contends it is "improper," yet relies on the 1994
and 2005 versions of the Acts to declare that "[i]t is in fact perfectly reasonable to
construe the Acts to protect unmarried, same-sex couples." Further, the dissent
claims it "is not truly legislative history" because it does not "focus on some event,
document, or statement separate from the amendment itself through which the Court
could explain how the legislative history reflects the legislative intent." While the
term "legislative history" encompasses the use of the items identified by the dissent,
and is generally relied on if the text of the statute is ambiguous, it is not so limited
in application and may include, as we did, the historical evolution of the statute at
issue. See 73 Am. Jur. 2d Statutes § 97, at 336 (2012) ("In determining legislative
intent, the court may review the earlier versions of the law. Therefore, in the
 An overview of the legislative history of the Acts, particularly the term
"household member," is instructive. In 1984, the General Assembly enacted the
Criminal Domestic Violence Act and the Protection from Domestic Abuse Act. Act
No. 484, 1984 S.C. Acts 2029. Notably, both Acts are contained within Act No.
484; however, the definition of "household member" is different in each Act.7 Over
the course of the next thirty-one years, the General Assembly amended the Acts four
times, the most extensive in 2015.

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

construction of a statute, reference may be made to earlier statutes on the subject
which are regarded as in pari materia with the later statute.").
7
In 1984, section 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 added.)

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."
8
In 1994, section 16-25-10 was amended to read: "As used in this article,
'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 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, the General Assembly deleted "parents and children, persons related
by consanguinity or affinity within the second degree" from sections 16-25-10 and
20-4-20. Act No. 92, 2003 S.C. Acts 1538, 1541; 1550.9

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.

9
In 2003, section 16-25-10 was amended to read: "As used in this article,
'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.)

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.)
10
See, e.g., S.C. Code Ann. § 16-25-20 (Supp. 2017) (providing: (1) enhanced
penalties for one convicted of subsequent domestic violence offenses; (2) degrees of
domestic violence offenses; and (3) penalties for a violation of an order of
protection); id. § 16-25-30 (prohibiting possession of a firearm by a person who has
been convicted of domestic violence or domestic violence of a high and aggravated
nature); id. § 16-25-65 (outlining offense of domestic violence of a high and
aggravated nature).
 2. Presumption of Constitutionality

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).
 One asserting a facial challenge claims that the law is "invalid in toto – and
therefore incapable of any valid application." Steffel v. Thompson, 415 U.S. 452,
474 (1974). This type of challenge is "the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the [statute] would be valid." United States v. Salerno, 481 U.S. 739,
745 (1987). Thus, "[u]nless the statute is unconstitutional in all its applications, an
as-applied challenge must be used to attack its constitutionality." Travelscape,
L.L.C. v. S.C. Dep't of Revenue, 391 S.C. 89, 109 n.11, 705 S.E.2d 28, 39 n.11 (2011)
(quoting Williams v. Pryor, 240 F.3d 944, 953 (11th Cir. 2001)); Renne v. Geary,
501 U.S. 312, 323-24 (1991) (recognizing that a facial challenge should generally
not be entertained when an "as-applied" challenge could resolve the case).

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
the statutes, it is significant given our judicial preference to remedy any
constitutional infirmity in the least restrictive way possible.

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. U.S. Const. amend.
XIV, § 1; S.C. Const. art. I, § 3. Equal protection "requires that all persons be treated
alike under like circumstances and conditions, both in privileges conferred and
liabilities imposed." GTE Sprint Commc'ns Corp. v. Pub. Serv. Comm'n of S.C., 288
S.C. 174, 181, 341 S.E.2d 126, 129 (1986) (quoting Marley v. Kirby, 271 S.C. 122,
123-24, 245 S.E.2d 604, 605 (1978)). "The sine qua non of an equal protection claim
is a showing that similarly situated persons received disparate treatment." Grant v.
S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995).

"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).
 Turning to the facts of the instant case, Doe has met her burden of showing
that similarly situated persons received disparate treatment. Doe suggests that this
case should be subject to the intermediate level of scrutiny as a result of "gender
classification"; however, she seems to concede that the appropriate standard is the
rational basis test. While there is some limited authority to support the application
of intermediate scrutiny, we need not make that determination because the definition
of "household member" as applied to Doe cannot even satisfy the rational basis test.

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

11
Cf. S.C. Const. art. I, § 24 (outlining Victims' Bill of Rights and providing that it
is intended to "preserve and protect victims' rights to justice and due process
regardless of race, sex, age, religion, or economic status").
same-sex couples experience a similar degree of domestic violence as those in
opposite-sex couples. See Christina Samons, Same-Sex Domestic Violence: The
Need for Affirmative Legal Protections at All Levels of Government, 22 S. Cal. Rev.
L. & Soc. Just. 417, 430-35 (2013) (recognizing recent reform to criminal and family
laws for domestic violence involving same-sex couples at the federal level and
identifying need for similar reform at state level); Leonard D. Pertnoy, Same
Violence, Same Sex, Different Standard: An Examination of Same-Sex Domestic
Violence and the Use of Expert Testimony on Battered Woman's Syndrome in Same-
Sex Domestic Violence Cases, 24 St. Thomas L. Rev. 544 (2012) (discussing
similarities of domestic violence in same-sex versus opposite-sex couples;
recognizing disparity in remedies afforded by the courts to victims of domestic
violence in same-sex versus opposite-sex couples).

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.

12
Judicial declarations have eliminated, for the most part, disparate treatment
between same-sex and opposite-sex couples. See Obergefell v. Hodges, 135 S. Ct.
2584 (2015) (holding that states' ban on same-sex marriages violated the Equal
Protection and Due Process Clauses).
13
Sections 16-25-10(3)(c) and 20-4-20(b)(iii) identify a "household member" as
including "persons who have a child in common." Thus, arguably an unmarried,
same-sex couple who has a child in common would constitute a "qualifying
relationship" for an Order of Protection. See, e.g., V.L. v. E.L., 136 S. Ct. 1017
(2016) (holding the Alabama Supreme Court erred in refusing to grant full faith and
credit to a Georgia decree of adoption, which was between an unmarried, same-sex
couple who had three children in common but did not reside together).
 Thus, while Doe and her ex-fiancé were similarly situated to other unmarried
or formerly married couples, particularly unmarried opposite-sex couples who live
together, Doe was precluded from seeking an Order of Protection based on the
definition of "household member." We find there is no reasonable basis, and the
State has offered none, to support a definition that results in disparate treatment of
same-sex couples who are cohabiting or formerly have cohabited.14

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. & Amusement Co. v. State, 338 S.C. 634,
640, 528 S.E.2d 647, 650 (1999) ("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

14
We need not reach Doe's Due Process challenge as the Equal Protection issue is
dispositive. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518
S.E.2d 591 (1999) (recognizing that an appellate court need not address remaining
issues on appeal when the disposition of an independent issue is dispositive);
Sangamo Weston, Inc. v. Nat'l Surety Corp., 307 S.C. 143, 414 S.E.2d 127 (1992)
(concluding that appellate courts will not issue advisory opinions that are purely
academic and do not affect the outcome of the case).
15
In contrast, the dissent finds "the only" reasonable interpretation is that "Doe is
covered" because "an order of protection is available when domestic violence is
committed upon members of unmarried, same-sex couples of both genders–male and
female." Notably, the author of the dissenting opinion is the sole proponent of this
interpretation, which not only lacks supporting authority but is based on a forced
construction of the statutory language.
which the Legislature saw fit not to include."); cf. State v. Leopard, 349 S.C. 467,
473, 563 S.E.2d 342, 345 (Ct. App. 2002) (declining to alter statutory definition of
"household member" in section 16-25-10; stating, "[i]f it is desirable public policy
to limit the class to those physically residing in the household, that public policy
must emanate from the legislature").

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.E2d 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

16
Act No. 58, 2015 Acts 225, 265-66 (providing a severability clause in 2015
Domestic Violence Reform Act); Act No. 166, 2005 Acts 1834, 1846 (providing a
severability clause in 2005 Act amending Protection from Domestic Abuse Act,
which includes definition of "household member" in section 20-4-20).
victims unprotected for any length of time would be a great disservice to the citizens
of South Carolina.

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.
JUSTICE FEW: Jane Doe, the State, and all members of this Court agree to this
central point: if the Acts exclude unmarried, same-sex couples from the protections
they provide all other citizens, they are obviously unconstitutional. See U.S. CONST.
amend. XIV, § 1 ("No state shall . . . deny to any person . . . the equal protection of
the laws."); S.C. CONST. art. I, § 3 ("nor shall any person be denied the equal
protection of the laws"); Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 428,
593 S.E.2d 462, 469 (2004) ("To satisfy the equal protection clause, a classification
must . . . rest on some rational basis.").

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. S.C. Code Ann. § 20-4-40(a) (2014). By its terms, the Act
applies to "any household members in need of protection." Id. By filing the action
seeking the protection of the Act, Doe necessarily took the position that the
definition of "household member" includes unmarried, same-sex couples, and thus
includes her. Doe argues to this Court that the definition should be interpreted to
include her.17 Her alternative argument—that the Act is unconstitutional—is based
on the family court ruling she chose not to appeal. Rather than appeal, she filed this
action naming the State as the only defendant.

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

17
As the majority explains, "Doe advocates for this Court to: (1) construe the word
'and' . . . to mean 'or'; and (2) declare the definition of 'household member' to include
any person, male or female . . . ."
18
A justice of the Court stated, "Following the legislative history of this statute, it is
clear it is the legislative intent to exclude homosexual couples. Otherwise, they
would not have changed the word 'person' to 'male and female.'" The State
responded, "I respectfully disagree."
an act of the General Assembly to be unconstitutional unless there was no choice but
to do so.

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

19
Chief Justice Beatty, who was not the author of the original majority opinion, has
not been inconsistent, but from the outset has advanced the argument that is now the
position of the Court. See Doe, Op. No. 27728 (Shearouse Adv. Sh. No. 28 at 62)
(Beatty, C.J., concurring in part and dissenting in part).
reversal, but not important to my analysis. The second—reversing itself from a
finding that the Acts are clear and unambiguous20 to an analysis based on the premise
that the applicable subsections of the Acts are not clear21—demonstrates my analysis
is correct. This fundamental change in the Court's reasoning should require an
explanation as to how the majority can ignore the presumption of constitutional
validity we said was the law in Joytime Distributors. The majority recites the words,
"This general presumption of validity can be overcome only by a clear showing the
act violates some provision of the constitution." But the requisite "clear showing"
simply cannot be made based on an argument that the Acts ambiguously set forth the
definition that violates the constitution.

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.").

20
In the original decision, the majority stated, "We disagree with Justice Few that
the language at issue is ambiguous," and, "The plain language is clear . . . ." Doe,
Op. No. 27728 (Shearouse Adv. Sh. No. 28 at 59 n.6).
21
As I will explain, the majority's finding of unconstitutional legislative intent is
based on what it contends is an analysis of legislative history, which is an analysis
our law does not permit when the text of the statute is clear and unambiguous.
22
The majority's approach is improper for a second reason—this is not truly
legislative history. The majority has merely looked at the amendments to the
definition of "household member," and drawn inferences from those amendments to
conclude what the General Assembly intended. That is called "guesswork," not the
consideration of history. A proper legislative history analysis would focus on some
event, document, or statement separate from the amendment itself through which the
Court could explain how the legislative history reflects the legislative intent.
 By turning directly to legislative history to support its analysis without any
reference to the text of the definitions, the majority has necessarily conceded the text
is not clear, but ambiguous. This concession should have brought the majority's
analysis back to the presumption of constitutionality, and the Court's duty to try to
find a way to construe the Acts as constitutional. Abbeville Cty. Sch. Dist., 410 S.C.
at 628, 767 S.E.2d at 161; Stephen W., 409 S.C. at 76, 761 S.E.2d at 232; S.C. Pub.
Interest Found., 403 S.C. at 645, 744 S.E.2d at 523; Joytime Distributors, 338 S.C.
at 640, 528 S.E.2d at 650; Clarke, 177 S.C. at 435, 181 S.E. at 484. If it is reasonable
to do so, we should construe the Acts to protect unmarried, same-sex couples, and
find the Acts constitutional. See Town of Mt. Pleasant v. Roberts, 393 S.C. 332,
342, 713 S.E.2d 278, 283 (2011) ("Any ambiguity in a statute should be resolved in
favor of a just, equitable, and beneficial operation of the law.").

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

23
The majority incorrectly states "the General Assembly retained the 2003 definition
of 'household member'" with the 2005 amendments. Rather, the 2005 amendments
contain a substantive change that is important to my analysis. Before 2005, the
household member was defined in terms of groups—between whom domestic
violence might be committed. After the 2005 amendments, household member is
defined in terms of individuals—upon whom domestic violence might be
committed. The majority overlooks this substantive change in labelling my analysis
"forced."
definition of "household member." Reading the Protection from Domestic Abuse
Act under this structure, Doe and other partners in unmarried, same-sex relationships
are protected.

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
couples than it is to resolve it in favor of finding a malicious motive behind the 1994
amendments.

I respectfully believe Doe and other members of unmarried, same-sex couples
are covered by the Acts and the Acts are therefore constitutional.