In August, I wrote about the Supreme Court’s first opinion in Doe v. State. The SC Supreme Court held that South Carolina’s domestic violence laws, both criminal and civil, discriminate against same-sex couples and violate the Equal Protection Clause:

The Court struck portions of South Carolina’s domestic violence statutes as unconstitutional because they violate the Equal Protection Clause as to same-sex couples. The Court’s decision as it stands will continue to deny protection to same-sex couples at the expense of denying protection to all unmarried couples who do not have a child in common.

The Court’s decision was then stayed as they reconsidered their decision at the urging of all parties to the case. On Friday of last week, the Court issued a new decision replacing the original opinion, finding that the definitions of household member in SC’s domestic violence laws are unconstitutional as applied to same-sex couples and therefore the definitions must include same-sex couples.

Facially Invalid or Unconstitutional as Applied – What’s the Difference?

The Court had three options available to it – they could have declared the statutes facially invalid, unconstitutional as applied to the plaintiff, or they could have done nothing.

Unconstitutional on its Face

The Court’s original opinion found that the definitions of household member, which specifically excluded same-sex couples, both in criminal charges and for purposes of issuing protection orders in the family court, were “facially invalid.” The remedy for a statute which is unconstitutional on its face is to strike the portions of the statute that make it unconstitutional. In this case, the result of striking the definitions that excluded same-sex couples was to continue to exclude same-sex couples at the expense of also excluding opposite-sex couples who live together or formerly lived together. If the Court strikes the offending portion of the statutes, a person in a same-sex relationship cannot be charged with criminal domestic violence (CDV) and an alleged victim in a same-sex relationship could not seek an order of protection from the family court.

Unconstitutional as Applied

In the original opinion, Chief Justice Beatty recommended that the Court find that the definitions of household member are unconstitutional as applied to the plaintiff in this case (and therefore other same-sex couples as well). Except for Justice Few, the rest of the Court came around to this remedy in the new opinion that was released Friday. By declaring the CDV laws unconstitutional as applied to the plaintiff, the Court preserved all pending criminal domestic violence cases and made it clear that orders of protection are available to all CDV victims regardless of their sexual orientation.

Do Nothing?

Justice Few again dissented from the majority opinion, arguing that the statute was not unconstitutional at all because it actually does apply to same-sex couples. Despite:

  • Doe v. State was filed after the family court denied a protective order to the plaintiff based on her sexual orientation.
  • The clear language of SC’s CDV laws excludes same-sex couples.
  • To be clear, South Carolina’s legislature amended the definitions of household member in 1994 specifically to exclude same-sex couples.

Charged with CDV in Myrtle Beach SC?

If you are facing CDV charges in the Myrtle Beach, Conway, Charleston, or Columbia areas, it makes no difference what your sexual orientation is. There are, however, many defenses that may be available to you to get your CDV dismissed or to win your case at trial. Schedule a free, confidential consultation to discuss the facts of your case by calling (843) 488-5000 or filling out our online form.

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