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 samesex 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 "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 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 SameSex 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, samesex 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 oppositesex 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 underinclusive 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 Pleicones, 

concurring in result only. FEW, J., dissenting 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.