YOU KNOW that cliche about throwing the baby out with the bathwater? That’s what the S.C. Supreme Court did Wednesday when it struck down a state law that protects unmarried heterosexuals against domestic violence but not unmarried homosexuals.
As a result, for the first time since 1984, the domestic violence law does not apply to any unmarried couples — gay or straight — unless they have children together.
Fortunately, the court agreed Friday to delay the effect of the ruling. But that delay is temporary, which means we still have a serious problem.
Regardless of what you think about homosexuality or living together without benefit of marriage, you ought to be worried about this, because if the court’s order ever does take effect — a very real possibility — it will put a lot of people at much greater risk of injury or even death than they were last week.
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Some want to blame the three justices who signed the opinion for emasculating the law. But the blame falls squarely on the Legislature, which left the justices with no good options. But more on that — and what needs to happen now — in a moment.
The state’s domestic violence law was created in 1984 to save lives by getting disputes between intimate partners resolved — and abusers arrested or treated or at least restrained — more quickly than the regular criminal laws can. The law covers “a spouse; a former spouse; persons who have a child in common; or a male and female who are cohabiting or formerly have cohabited.”
Everyone involved in the case — all five justices; “Jane Doe,” who filed the lawsuit after a lower court refused to grant her a protective order against her female then-fiance; and even Attorney General Alan Wilson — agree that covering someone in a heterosexual relationship but not someone in a homosexual relationship violates the U.S. Constitution’s guarantee of equal protection under the law. And again, you don’t have to condone homosexual relationships to recognize that.
While striking that out means unmarried couples are now treated the same, the ‘same’ way they’re treated is without protection.
Former Chief Justice Costa Pliecones, sitting in on this case, wrote for the majority that the court had no choice but to strike out the part that covers “a male and female who are cohabiting or formerly have cohabited.” You don’t have to have a law degree to see that while striking that out means unmarried couples are now treated the same, the “same” way they’re treated is without protection.
Current Chief Justice Don Beatty wrote a dissent saying the court should have found the law was merely unconstitutional as applied to Jane Doe, and ordered lower courts to provide the same protection to homosexuals as heterosexuals. This sort of approach is not uncommon, but it is deeply disturbing. The result is that the law says one thing, and the courts act as though it says something else.
Associate Justice John Few offered two approaches.
First, he argued that, for complicated grammatical reasons, the law actually applies to homosexual couples. This too is a disturbing solution, because even if he is grammatically correct, there is no way a normal person would see in the statute what he sees. And I can tell you as a matter of politics that the Legislature in 1994 made a deliberate decision to change the law from “persons cohabiting or formerly cohabiting” to “a male and female who are cohabiting or formerly have cohabited.” It did this in order to exclude people in homosexual relationships, because some legislators wanted to make a political statement.
The world has changed a lot since then, but the Legislature has amended the law several times since then. Most recently was in 2015, when lawmakers were urged to also change “male and female” back to “persons.” They refused to do so. Hold that thought a moment.
There’s no guarantee that the court will reconsider, so we could soon find ourselves right back where we were Thursday.
Justice Few’s other argument was that since both Jane Doe and Mr. Wilson took the position that state law does cover people in unmarried same-sex relationships, the court should have declared that there was no controversy and therefore no reason to rule. This is probably the least disturbing approach offered, but it’s not a solution either.
The only appropriate solution is for the Legislature to amend the law so it does not violate the U.S. Constitution. And yes, that means some legislators will have to authorize police protection for people whose lifestyles they condemn. But the fact is that the only way they can avoid that is to abolish the whole law, because the U.S. Supreme Court decision recognizing same-sex marriage means the law covers married homosexuals.
On Thursday, the plaintiff joined the attorney general in asking the court to delay its order until Mr. Wilson can file another motion asking the court to reconsider its order. The court agreed, and that’s a good thing, because it prevents an immediate crisis for domestic violence victims. But there’s no guarantee that the court will reconsider, so we could soon find ourselves right back where we were Thursday.
The court has the power to delay an order to give the Legislature time to change the law. Given what a huge change the court just made to our law, that’s what the justices need to do: Delay the order for a set period — say, until March — for the explicit purpose of giving the Legislature time to fix the law.
It’s the Legislature that wrote an unconstitutional law, and refused year after year to fix it. It’s the Legislature that needs, finally, to fix it.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.