# 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 re hearing, the Court grants the petition for rehearing, dispenses with further briefing, and substitutes the attached opinions for the opinions previously filed in this mat ter.

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, 2017THE 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 – Ref iled 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, De puty 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, o f 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 "ho usehold member" in South Carolina Code section 16-25-10(3) of the Domestic Violenc e Reform Act and section 20-4-20(b) of the Protection from Domestic Abuse Act 1 (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 for merly have cohabited.Acts") is unconstitutional under t he Due Process and Equal Prot ection Clauses of

the Fourteenth Amendment 2 to the United States Constitution. Specifically, Doe contends the provisions are unc onstitutional because neither af fords protection from domestic abuse for unmarried, same-sex individuals who are coha biting 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 samesex couple. Doe claims that she and her ex-fiancé cohabited be tween 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 hote l. On August 10, 2015, law enforcement was summoned to Doe's workplace after som eone 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 sh e felt threatened by

her ex-fiancé's actions. Law enforcement filed incident report s for both events, the first was identified as "simple assault" and the second was ide ntified as "assaultintimidation."

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 lower case Roman numerals rather tha n letters).

2 U.S. Const. amend XIV, § 1 ("A ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the Un ited 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 priv ileges 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 l aw, nor shall any person be denied the equal protection of the laws.").On August 12, 2015, Doe sought an Order of Protection 3 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), w hich defines "household

member" in the Protecti on from Domestic Abuse Act. 4

Doe filed an action for declaratory judgment in this Court's or iginal 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 grant ed Doe's petition for original jurisdiction by or der 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 proceedi ngs 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 Co unty magistrate's court. On August 13, 2015, a magistrate court judge granted Do e a Temporary Restraining Order that was convert ed to a Restraining Order on December 17, 2015.

5 The author of the dissenting opinion concludes there is no co ntroversy for which the Court should exercise its original jurisdiction. For sever al 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 cour t rules. See Rule 245(a), SCACR (authorizing Suprem e Court to entertain matters in its original jurisdiction "[i]f the public interest is involved, or if speci al grounds of emergency or other good reasons exist"). Further, this Court has exercis ed its authority to grant a petition for original jurisdiction where a legitimate constit utional 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 dete rmine 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 o f the Uniform Alcohol and Intoxication Treatment Act violated the Equal Protection cl auses of the federal and state constitutions; noting that the "questions involved ar e of such wide concern,II. Discussion

A. Arguments

In essence, Doe maintains the South Carolina General Assembly i ntentionally

excluded her from consideration for an Order of Protection in f amily court "because

of her sexual orientation." As a result, Doe claims she was de nied 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 disju nctive "male or female," the General Assembly enacted a statutory definition th at violates the Due Process and Equal Protection Clauses of the Fourteenth Amendmen t to the United

States Constitution.

Specifically, Doe asserts she ha s been arbitrarily and capricio usly 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 prot ection afforded to opposite-sex, cohabiting couples even though there is no ration al reason to justify this disparate treatment.

Although Doe acknowledges that an abuser in a same-sex relation ship could be charged with criminal assau lt 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 A cts. In particular, Doe points to the provisions of the Domestic Violence Reform Ac t that authorize enhanced penalties for convicted abusers who commit additional acts of violence,

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

Finally, any claim that "there is no controversy" before the C ourt is without

merit. While the parties may agree that Doe should be protecte d under the Acts, the parties disagree as to whether the definition of "household mem ber" is constitutional and the appropriate remedy. Additionally, even if the dissent' s position were meritorious, it would not eliminate the existence of a controve rsy. 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 th e law are admitted by all the parties" (f ootnotes 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 treatmen t 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 analysi s could be

avoided if the Court: (1) constru es the phrase "male and femal e" as proposed by Doe; or (2) sever those words from the definition so that it re ads only "cohabiting or formerly have cohabited." The State asserts that such a constr uction would be consistent with and effectuate the legislative purpose of the A cts, 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 entiret y based solely on the literal import of the word "and."

B. Constitutional Analysis

1. Legislative History 6

6 The author of the dissenting opinion takes issue with our ref erence 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." Fur ther, the dissent

claims it "is not truly legislative history" because it does no t "focus on some event, document, or statement separate from the amendment itself through which the Court could explain how the legislative history reflects the legislat ive intent." While the

term "legislative history" encom passes the use of the items ide ntified by the dissent, and is generally relied on if the text of the statute is ambigu ous, it is not so limited in application and may include, as we did, the historical evolu tion 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 theAn overview of the legislative history of the Acts, particularl y the term "household member," is instructive. In 1984, the General Assem bly 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 a mended 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 w ho have a child in common," and add/substitute " a male and female who ar e 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, refere nce may be made to earlier sta tutes on the subject which are regarded as in pari ma teria 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, pe rsons related by consanguinity or affinity within the second degree, and persons cohabitating or formerly cohabitating ." (Emphasis added.)

In 1984, section 20-4-20(b) stat ed: "'Family or household m ember' means spouses, former spouses, parents and children, and persons related by co nsanguinity or affinity within the second degree."

8 In 1994, section 16-25-10 was amended to read: "As used in t his article, 'household member' means spouses, former spouses, parents and c hildren, persons related by consanguinity or affi nity 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 A ssembly deleted "parents and children, pe rsons related by consanguinity or affinity within the second degree" from sec tions 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 ide ntified 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. A cts 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 reta ined 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 o f 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 purposeful ly included the phrase "male and female" within the definition of "household me mber" in 1994 and

has retained that definition.

9 In 2003, section 16-25-10 was amended to read: "As used in t his article, 'household member' means spouses, former spouses, persons who h ave a child in

common, and a male and female who are cohab iting or formerly have cohabited ." (Emphasis added.)

In 2003, section 20-4-20(b) was a mended to read: "'Househol d 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) enhan ced penalties for one convicted of s ubsequent domestic violence off enses; (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 wh o has

been convicted of domestic violence or domestic violence of a h igh and aggravated nature); id. § 16-25-65 (outlining offense of domestic violence of a high a nd 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 bey ond 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 o vercome only by a clear showing the act violates some provision of the constituti on. Id. Accordingly, our scope of review is limited in cases involving a constitutio nal 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 firs t determine the type of constitutional challenge posed by Doe. In her brief an d 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 o n the spectrum between purely as-applied relief and complete facial invalidati on." 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 so me automatic effect or that it must always control the pleadings and disposition in ev ery 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 mu st 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 i tself 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 "invali d 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 chal lenge to mount successfully, since the challenger must establish that no set o f 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 constitutionali ty." 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 challeng e should generally

not be entertained when an "as- applied" challenge could resolve the case).

In an "as-applied" challenge, the party challenging the constit utionality of the

statute claims that the "application of the statute in the part icular context in which he has acted, or in which he proposes to act, would be unconsti tutional." 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 pr ovision." 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) (discus sing "as-applied" challenges and stating, "despite some possibly impermissible application, the remainder of the statute

covers a whole range of easily identifiable and constitutionall y proscribable conduct" (internal quotation ma rks and citation omitted)). Ins tead, "[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-se x 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 orie ntation. 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 Prote ction. While this fact is not dispositive of a facial challenge, as we must necessaril y focus on the text ofthe statutes, it is significant given our judicial preference t o 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 no t overtly discriminate based on sexual orientation. Though not an all-inclusive list, the statutes would be valid a s to same-sex married couples, opposite-sex married couples, and unmarried opposite-s ex couples who live together or have lived together. Because there are numerous va lid 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 sh e was intentionally

excluded as a qualifying "household member" for an Order of Pro tection in family

court. Thus, the question becomes whether the statutory defini tion of "household member" as applied denied Doe e qual 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 a nd conditions, both in privileg es 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; a nd; (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 inst ant case, Doe has met her burde n 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 appropr iate 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 b ecause 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 t han all other couples; and (3) lacks a rational reason to justify this disparate treatment.

Based on our interpretation of t he Acts, the overall legislativ e purpose is to protect victims from domestic violence that occurs within the h ome 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 Do mestic Abuse Act was enacted to deal with the problem of abuse between family m embers. The effect of the Act was to bring the parties before a judge as quickly as possible to prevent furthe r 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." T hus, the State maintains the General Assembly defined "household member" as "a male and female who are cohabiting or formerly ha ve cohabited" to address the p rimary problem of

domestic violence within opposite-sex couples.

Without question, the statistics relied on by the State are acc urate. 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 t hat individuals within

11 Cf. S.C. Const. art. I, § 24 (ou tlining Victims' Bill of Rights an d providing that it is intended to "preserve and protect victims' rights to justice and due process regardless of race, sex, age, re ligion, or economic status").same-sex couples experience a similar degree of domestic violen ce as those in opposite-sex couples. See Christina Samons, Same-Sex Domestic Violence: The Need for Affirmative Legal Protecti ons at All Levels of Government , 22 S. Cal. Rev.

L. & Soc. Just. 417, 430-35 (2013) (recognizing recent reform t o criminal and family laws for domestic violence involving same-sex couples at the fe deral 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 Testim ony on Battered Woman's Syndrome in SameSex Domestic Violence Cases , 24 St. Thomas L. Rev. 544 (2012) (discussing similarities of domestic violence in same-sex versus opposite-s ex couples; recognizing disparity in remedies afforded by the courts to vic tims of domestic violence in same-sex versus opposite-sex couples).

Because the Acts are intended to p rovide protection for all vic tims of domestic violence, the definition of "household member," which eliminate s Doe's relationship

as a "qualifying relationship" for an Order of Protection, bear s no relation to furthering the legislative purpose of Acts.

Additionally, the definition of "household member" treats unmar ried, samesex couples who live together or have lived together differentl y 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 fo r 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 oppositesex married or formerly married couple; (4) an opposite-sex cou ple, 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 elim inated, for the most part, dis parate 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 vio lated the Equal Protection and Due Process Clauses).

13 Sections 16-25-10(3)(c) and 20- 4-20(b)(iii) identify a "house hold member" as including " persons who have a child in common." Thus, arguably an unmarried, same-sex couple who has a child i n common would constitute a "q ualifying 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 un married, same-sex couple who had three children in common but did not reside together).Thus, while Doe and her ex-fiancé we re similarly situated to ot her unmarried or formerly married couples, particularly unmarried opposite-se x 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 cohabiti ng or formerly have cohabited. 14

Because it is clear that the definition of "household member" v iolates the Equal Protection clauses of our state and federal constitutions , we must declare it

unconstitutional. See Joytime Distribs. & Am usement 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 constituti on."). 15

5. Remedy

Having concluded that the defin ition 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, th is Court cannot construe and effectively amend th e statutes to change the plain language of "and" to "or" as proposed by the State. See Shelley Constr. Co. v. Se a Garden Homes, Inc.

, 287 S.C. 24, 28, 336 S.E.2d 488, 491 (Ct. App. 1985) ("We are n ot at liberty, under the guise of construction, to a lter the plain language of the s tatute by adding words

14 We need not reach Doe's Due Process challenge as the Equal Pr otection 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 cour ts will not issue advisory opini ons 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 dome stic 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 i s 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 st atutory 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 househol d, that public policy

must emanate from the legislature").

Also, even though the Acts inc lude severability clauses, 16 there is no reason to employ them as we have found the sections containing the definition of

"household member" are not facia lly invalid. Rather, the const itutional infirmity is based on their application to Do e, i.e., not including unmarrie d same-sex couples in the definition of "household member." Thus, severance cannot r ectify the underinclusive nature of the definition.

Further, even if we were to attempt to remedy the constitutiona l infirmity through severance, we find severa nce of the entire phrase "a ma le and female who are cohabiting or formerly have cohabited" to be unavailing sin ce 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 wh o are cohabiting or formerly have cohabited. Yet, it would be available to unma rried 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. A s a result, the Acts would be r endered 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 sev erability is whether the constitutional portion of the s tatute remains complete in i tself, wholly independent of that which is reje cted, and is of such a charact er as that it may fairly be presumed that the Legislature would have passe d it independe nt of that which is

in conflict with the Constitution. " (internal quotation marks a nd citation omitted)). Accordingly, we reject any suggestion to sever the Acts as it i s inconsistent with our rules of statutory construction a nd 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 consequen ces for victims of domestic viol ence. To leave these

16 Act No. 58, 2015 Acts 225, 265-66 (providing a severability c lause in 2015

Domestic Violence Reform Act); Act No. 166, 2005 Acts 1834, 184 6 (providing a severability clause in 2005 Act amending Protection from Domest ic Abuse Act,

which includes definition of "hous ehold member" in section 20-4 -20).victims unprotected for any length of time would be a great dis service 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 1 6-25-10(3) and 20-4

- 20(b) unconstitutional as applied to Doe. Therefore, the famil y court may not utilize these statutory provisions to prevent Doe or those in similar s ame-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 par entage statute, which expressly referred to a mother, father, and husband, viol ated 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; ide ntifying appropriate remedy by stating, "Accordingly, instead of striking section 144.13(2) from the [I owa] Code, we will preserve it as to married opposit e-sex couples and require the [Iowa Department of Public Health] to apply the statu te to married lesbian couples" ).

Declared Unconstitutional As Applied

.

KITTREDGE and HEARN, JJ., concur. Acting Justice Pleicones, concurring in result only. FEW, J ., dissenting in a separate o pinion.JUSTICE FEW: Jane Doe, the State, and all members of this Court agree to th is central point: if the Acts exclude unmarried, same-sex couples from the protecti ons they provide all other citizen s, they are obviously unconstitut ional. See U.S. C ONST

. amend. XIV, § 1 ("No state shall . . . deny to any person . . . the equal protection of the laws."); S.C. C ONST . art. I, § 3 ("nor shall any person be denied the equal protection of the laws"); Sunset Cay, LLC v. C ity of Folly Beach , 357 S.C. 414, 428, 593 S.E.2d 462, 469 (2004) ("To sa tisfy the equal protection cl ause, a classification

must . . . rest on some r ational 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 pr esents 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 no t [decide] . . . academic questions or make an adjudicati on 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 o f protection

from a threat of domestic violence pursuant to section 20-4-40 of the Protection from

Domestic Abuse Act. S.C. Code A nn. § 20-4-40(a) (2014). By it s 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 pos ition that the definition of "household member" includes unmarried, same-sex couples, and thus includes her. Doe argues to thi s Court that the definition sho uld be interpreted toinclude 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 cou ples, and thus includes Doe. In its Answer, the State contends that any "cons titutional problem associated with the definitions at issue . . . may be addressed through interpretation to encompass unmarried, same-se x couples." In its return to Do e's petition for original jurisdiction, the State wrote, "There is . . . no evid ence that the Legislature intentionally discriminated against same-sex couples." At oral argument before this Court, the State disagreed with t he statement "it is clear it i s 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 say ing the statute

covers Jane Doe?" to which the State responded, "Yes." In maki ng these statements, the State asks this Court to interpret the definition of "house hold member" to include Doe and partners in other non-m arital same-sex domestic relatio nships.

If Doe had appealed the family court's ruling that the Protecti on from Domestic Abuse Act did not apply to her, she would have present ed a justiciable controversy to this Court. Doe chose not to appeal, and she fi led this action. When the State agreed with Doe that t he Act should be interpreted to protect her, it eliminated any controversy. The majority overlooks this import ant 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 th at 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 'ho usehold member' to include any person, male or female . . . ."

18 A justice of the Court stated, "Following the legislative hist ory of this statute, it is clear it is the legislative intent to exclude homosexual couple s. 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 th ere 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 b e 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 unl ess 'its repugnance to

the Constitution is clear b eyond a reasonable doubt'").

Under Joytime Distributors , we are constrained to interpret the Acts to include unmarried, same-sex couples unle ss the Acts "so clearly" exclud e them "as to leave

no room for reasonable doubt." In other words, if the statutor y 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 the y are excluded, then

the Court is correct to find the Acts unconstitutional. That t ext, 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 import ant respects. 19 The first—now finding the Acts uncons titutional "as applied," but p reviously finding the applicable subsections of the Acts unconstitutional on their fa ce—is a significant

19 Chief Justice Beatty, who was not the author of the original m ajority 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—reversi ng itself from a finding that the Acts are clear and unambiguous 20 to an analysis based on the premise that the applicable subsections of the Acts are not clear 21 —demonstrates my analysis is correct. This fundamental change in the Court's reasoning s hould require an explanation as to how the majority can ignore the presumption o f 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 requ isite "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 A cts. Rather, the majority's analysis is driven by the actions the General Assemb ly 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 b eyond 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 inte rpretation 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 wi th Justice Few that the language at issue is ambiguous," and, "The plain language i s clear . . . ." Doe

, Op. No. 27728 (Shearouse Adv . Sh. No. 28 at 59 n.6).

21 As I will explain, the major ity'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 t ext of the statute is clear a nd unambiguous.

22 The majority's approach is improper for a second reason—this i s not truly legislative history. The majority has merely looked at the ame ndments to the definition of "household member," and drawn inferences from tho se amendments to

conclude what the Gene ral Assembly intended. That is called "g uesswork," not the consideration of history. A proper legislative history analysis would focus on some event, document, or statement se parate from the amendment itsel f through which the Court could explain how the leg islative history reflects the le gislative intent.By turning directly to legislative history to support its analy sis without any reference to the text of the definitions, the majority has nece ssarily 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, sam e-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 prot ect unmarried, same-sex couples. In 1994, "household member" was defined in t erms of pairs or groups of people, "spouses, former spouses, parents and childre n, persons related

. . . ." See supra note 8. In that context, the Acts logically applied when dome stic

violence occurred between the members of a define d pair or group. In 2005, however, the definitions were amended so that the primary subse ctions of each

definition are now framed in terms of individual people: "a spo use; . . . 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 Protect ion' in cases of abuse

to a household member." § 20-4-40 (emphasis added). The "petiti on 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 Domes tic 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 2 005 amendments contain a substantive change tha t 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, househ old member is

defined in terms of individuals— upon whom domestic violence might be committed. The majority overlooks t his substantive change in l abelling my analysis

"forced."definition of "household member." Reading the Protection from Domestic Abuse Act under this structure, Doe a nd other partners in unmarried, same-sex relationships are protected.

To understand this point, consider the operation of the Acts re garding

individuals included in the first and second subsections of the definition—"a spouse" and "a former spouse." A person may seek an order of protectio n 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 defin ition, an order of protection is available "in case s of abuse to [a spouse]." If we apply that provision using the second subsection of the definition, an order of prot ection is available "in cases of abuse to [a former spouse]."

Now consider the operation of the Acts regarding individuals in cluded in the

fourth subsection—"a male and female who are cohabiting or form erly have

cohabited"—the subsection the ma jority finds unconstitutional. An order of protection is availabl e "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 availab le when domestic violence is committed upon members of unmarried, same-sex coupl es of both genders—male and female. Doe is covered.

The interpretation I have just explained is not only a reasonab le interpretation,

it is the only reasonable interpretation. The majority's interpretation that the General Assembly intended to exclude sam e-sex couples is based on the p remise that the subsection applies only when "a m ale and female" are cohabiting together. This interpretation works only if the Acts are construed to apply wh en domestic violence occurs between members of a defined pair or group. That constru ction was eliminated, however, with the 2005 amendments. As discussed ab ove, 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 Gener al 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 a pply only when there are two vic tims.

The presence of the word "and" ins tead of "or" in the fourth su bsection of the definition of household member may be troubling, but it does no t require the conclusion the General Assembly intentionally excluded unmarrie d, same-sex couples from the Acts. Rather, it merely demonstrates the ambi guity in the

definition. It is more reasonabl e to resolve that ambiguity in favor of constitutionality by including Doe and other members of unmarri ed, same-sexcouples than it is to resolve it in favor of finding a maliciou s 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 therefo re constitution al.