North Carolina: The Last Frontier for Equality in Domestic Violence Protections for Same-Sex Couples
North Carolina is the only state that does not recognize equivalent domestic violence protection for same-sex couples as it does for opposite-sex couples. See Am. Bar Ass’n, Domestic Violence Civil Protection Orders (CPOs), (2014). Chapter 50B domestic violence protection orders are restricted to only opposite-sex dating relationships in North Carolina. N.C. Gen. Stat. § 50B-1(b). The resulting discrimination against the unprotected and vulnerable parties in same-sex dating relationships is only because the abusers are the same sex as their victims.
The Status Quo in North Carolina
Chapter 50B of the North Carolina General Statutes defines domestic violence as:
the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense: (1) Attempting to cause bodily injury, or intentionally causing bodily injury; or (2) Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A, that rise to such a level as to inflict substantial emotion distress; or (3) Committing any act defined in G.S. 14-27.21 through G.S. 14-27.33.
N.C. Gen. Stat. § 50B-1(a).
Chapter 50B further states that “personal relationship” means a relationship where the parties involved are current or former spouses, are persons of opposite sex who live together or have lived together, are related as parents and children, are related as grandparents and grandchildren, have a child in common, are current or former household members, or are persons of the opposite sex who are in a dating relationship. § 50B-1(b). Same-sex couples are only protected if they have been married, live or have lived together, or have children together. Id. Chapter 50B provides protection to persons of the opposite sex who are in a dating relationship but denies protection to persons of the same sex who are in a dating relationship. § 50B-1(b)(6).
The statute further defines a dating relationship as “one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship.” Id. The term excludes casual acquaintances or ordinary “fraternization” between people in social situations. Id. This definition excludes same-sex couples in dating relationships from domestic violence protection while providing that same protection to opposite-sex couples in dating relationships. This effectively would provide domestic violence protection to parties but for the sex of the parties.
The protections afforded opposite-sex couples that are not afforded to same-sex couples in dating relationships is clearly a violation of the equal protection under the law and due process of the law as promised by the United States Constitution and North Carolina Constitution. U.S. Const. amend. XIV, § 1; N.C. Const. art. I, § 19. This issue of constitutional protection has been brought before numerous courts, such as South Carolina and Louisiana, that had similar language in their statutes providing for domestic violence protection orders or their equivalent, that restricted domestic violence protective orders to same-sex couples because of their sex. See Doe v. State, 421 S.C. 490, 507-08, 808 S.E.2d 807, 815 (2017); Act No. 79, 2017 La. Sess. Law Serv. Act 79 (H.B. 27) (West). It was only recently, 2017 for both South Carolina and Louisiana, that these states changed their statute to include equivalent domestic violence protection for same-sex couples. Id. North Carolina cannot wait any longer to follow suit.
The Last State Standing
South Carolina’s extension of domestic violence protection to same-sex couples at equivalent to the protection provide to opposite-sex couples made North Carolina the last state that allows for the infringement on Constitutional protection of equal protection under the law and due process of the law.
In 2017, South Carolina’s Supreme Court was presented with the issue of whether their statutory language unconstitutionally blocked same-sex couples equal domestic violence protection as opposite-sex couples. Doe, 421 S.C. at 495-96. South Carolina Code section 16-25-10(3) defined “household member” as “a male and female who are cohabiting or formerly have cohabited.” Id. at 498. This is similar to how North Carolina defines “personal relationship” in the context of domestic violence protection orders. N.C. Gen. Stat. § 50B-1(b)(6).
The plaintiff in Doe v. State sued to declare the statute unconstitutional because the language violated her equal protection and due process rights under the Fourteenth Amendment. Doe, 421 S.C. at 495-96. The Supreme Court of South Carolina held that the statute was unconstitutional as applied to the plaintiff using the rational basis test under the equal protection clause even though the plaintiff argued the case should be subject to the intermediate level of scrutiny. Id. at 505. “We readily agree . . . that the Equal Protection Clause requires that same-sex couples . . . must be included within [state statutory] protections from domestic violence.” See State’s Petition for Rehearing at 1-2, Doe v. State, 421 S.C. 490, 808 S.E.2d 807 (2017), (No. 2015-1726). The South Carolina court decided to remedy the lack of protection to same-sex couples by not allowing the family court to use the statutory language to prevent those in same-sex relationships from seeking an order for protection in the case of domestic violence. Doe, 421 S.C. at 509. This resolution was chosen instead of invalidating the entire provision because the court felt that protection for victims of domestic violence cannot be halted for any period of time. Id.
North Carolina cannot continue to deprive same-sex couples of protection that is provided to opposite-sex couples because it is not only a violation of the federal and state constitutions, but because it places citizens in North Carolina in danger. The purpose of the Chapter 50B provision for protection for victims of domestic violence is protect citizens, and this provision does not adhere to its purpose. Specifically, the North Carolina Court of Appeals has held that the purpose of Chapter 50B is to “immediately and effectively protect  victims of domestic violence [.]” State v. Poole, 228 N.C.App. 248, 264, 745 S.E.2d 26, 37 (2013). When North Carolina excludes those that are in the same vulnerable position as members of opposite-sex relationships, but are of the same sex, the State is unconstitutionally denying equal protection and due process rights under the federal and state constitutions.
M.E. v. T.J. Claims this Constitutional Challenge
The case bringing a constitutional challenge to the status of domestic violence protection for same-sex couples in North Carolina reached the North Carolina Court of Appeals this year and a three-judge panel heard oral arguments in September. Oral arguments included representation of the Attorney General’s Office, Mr. Ryan Park, Deputy Solicitor General, arguing in support of the extension of domestic violence protection to individuals in same-sex dating relationships for policy reasons that included public safety.
The case, M.E. v. T.J., involves two anonymous women that were in a same-sex dating relationship. When M.E. wanted to end the relationship, T.J. become violent by threatening M.E. App.’s Br. p. 5. This placed M.E. in fear for her life because she knew that T.J. had access to her father’s firearms, which led her to seek a Chapter 50B Domestic Violence Protection Order under North Carolina law. Id. The Chapter 50B order can also require the abuser to turn over firearms to their local Sheriff’s Office and prohibit the abuser from purchasing a firearm. §§ 50B-3(a)(11), 50B-3.1(a).
Both judges, in the ex parte proceeding and in the hearing for longer extension of the Chapter 50C no-contact order, found M.E. to be the victim of abuse. Id. at 6. The judges stated that the only reason that M.E. did not receive a Chapter 50B domestic violence protection order was because she was in a same-sex relationship and because the parties were not of different genders. Id. As far as the court was concerned, M.E. and T.J. were not in a statutorily recognized relationship under Chapter 50B. Id.
The 50C No-Contact Order Provides Inadequate Protection to Same-Sex Couples
M.E. did walk away from court with some protection, but it is insufficient as it does not provide domestic violence victims with important protections that a 50B domestic violence protective order provides. The 50C Civil No-Contact Order provides basic protections for stalking or non-consensual sexual contact. N.C. Gen. Stat. § 50C. The 50C order provides for basic protections from continued harassment of the victim by ordering the accused party from contacting the victim of the harassment. Id. While the 50B order provides for the abuser to surrender firearms and prohibits the abuser from purchasing firearms, a 50C order provides no such protections. §§ 50B-3(10), 50C. It was also discussed during oral arguments that the consequences for violation of a 50B order are much higher than under a 50C order.
Therefore, the 50C order left M.E. still vulnerable to T.J.’s use of the firearms that she had access to that were in her father’s possession. The victim in an opposite-sex couple would not have to fear for their life because their abuser still had access to guns and could easily violate the 50C order to use them against their victim. Citizens of North Carolina should not have to tolerate this constant fear.
The American Civil Liberties Union Arrives on the Scene
When M.E.’s case returned on appeal, she was represented by the American Civil Liberties Union of North Carolina (“ACLU”) and Amily McCool with the Scharff Law Firm who were poised to explain to the court in a 38-page brief why Chapter 50B does not survive the heightened scrutiny applied to cases challenging the constitutionality of discrimination based on sexual orientation and sex. The brief contains a two-fold argument that M.E. is not only the victim of discrimination based on her sexual orientation, but she is also the victim of discrimination based on her sex. Appellant’s Br. p. 10. The ACLU and Attorney McCool further state that while Chapter 50B cannot survive under heightened scrutiny, it also cannot even survive under the most deferential level of scrutiny applied to determine whether legislation is unconstitutional. Id. at 26.
M.E.’s counsel not only used North Carolina cases to support the argument of constitutional infringement, but Supreme Court cases such, as Romer, Lawrence, Windsor, Obergefell, and Pavan, that state that heightened scrutiny must be used when determining whether a law is unconstitutional for denial of equal protection based on sexual orientation and sex. Id. at 13. In a case of heightened scrutiny, a piece of legislation must (1) serve an important government objective that (2) the discriminatory means employed are substantially related to achieving that purpose. United State v. Virginia, 518 U.S. 515, 524 (1996). The justification for the discrimination cannot be based on “lingering prejudices”, “moral disapproval”, a “desire to harm a politically unpopular group”, or “overbroad generalizations” about sex. Malecek v. Williams, 804 S.E.2d 592, 596 (N.C. Ct. App. 2017); Dep’t of Agric. V. Moreno, 413 U.S. 528, 534 (1973); Virginia, 518 U.S. at 533.
The Chapter 50B domestic violence protective order clearly does not achieve the important government purpose of protecting victims of domestic violence because it is grossly under-inclusive, thus the means employed are not substantially related to achieving that purpose. The purpose of the statute is to protect all victims of domestic violence, and by only protecting victims of domestic violence in opposite-sex couples, the statute is not including a large group of people that also need protection in cases of domestic violence, like M.E.
The only possible justification for the limitation of protection of same-sex couples in domestic violence situations are one of the four restricted justifications listed above. “Lingering prejudices” and “moral disapproval” were issues dealt with in the Civil Rights era and have no basis in our modern adjudication system for why a citizen should not receive protection under the law. Malecek, 84 S.E.2d at 596; Loving v. Virginia, 388 U.S. 1 (1967). Desire to harm a politically unpopular group is against the make-up of our democratic system’s protection of minority representation in legislation. Dep’t of Agric., 413 U.S. at 534. United States Supreme Court Justice Ruth Bader Ginsburg correctly stated that “nobody should be forced into a predetermined role on account of sex [.]” Ruth Bader Ginsburg, Gender and the Constitution, 44 U. Cin. L. Rev. 1, 1 (1976). Overbroad generalizations also have no basis for the justification of a law not protecting same-sex couples because a woman can shoot a gun just as easily as a man can shoot a gun, so equal protection from all people who threaten you is vital. Virginia, 518 U.S. at 533.
The Attorney General’s Support of Extension of Protection
“By irrationally excluding some members of society from the law’s protections, Chapter 50B’s sex-based distinctions impair the State’s ability to prevent and punish domestic violence.” Brief by Amicus Curiae The State of North Carolina In Support of Plaintiff-Appellant, 13, M.E. v. T.J. (No. COA 18-1045), https://www.acluofnorthcarolina.org/en/cases/domestic-violence-protections-lgbtq-people. This quote from North Carolina’s Attorney General Office affirms the State’s commitment to applying North Carolina law for the purpose it was enacted, as every law should. This supports the Court of Appeals, hopefully, finding that Chapter 50B regarding a domestic violence protective order was unconstitutionally applied to M.E.’s case of domestic violence.
Deputy Solicitor General Park discusses the opportunity the court has to make sure those that are similarly situated to M.E. do not have to suffer from inadequate protection under the law. Id. at 9. On behalf of the Attorney General’s Office, Park recommends that Chapter 50B’s application be extended to individuals in same-sex dating relationships instead of invalidating the statute. Id. at 18. “When courts identify a constitutional flaw in a statute, the preferred remedy is one that fixes the constitutional defect while doing the least amount of damage to the overall statutory scheme.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328-30 (2006). Effectively, the court should fix the “problematic portions while leaving the remainder intact” of the statute. Id. at 328.
Park further supports this recommendation with how the inclusion of previously unincluded groups have been handled. Brief by Amicus Curiae The State of North Carolina In Support of Plaintiff-Appellant at 18. “Courts generally elevate the disfavored group to equality—rather than reducing the rights of all.” Califano v. Westcott, 443 U.S. 76, 87 (1979) (“Where a statute is defective because of underinclusion . . . extension [of rights], rather than nullification, is the proper course”). Furthermore, the Court disfavors an avenue that would impose a hardship on those that the statute is meant to benefit, or in this case, protect. Id. at 84.
Alabama has successfully remedied previously discriminatory language in a statute providing for protection in domestic violence cases. Alabama provides protection for victims of domestic violence for anyone in a “dating relationship” which it defines as “a recent frequent, intimate association.” Ala. Code § 30-5-2(a)(4). North Carolina can easily end its system of discrimination of victims in domestic violence situations, as Alabama did, by extending the definition of a “personal relationship” to include parties in a dating relationship of the same sex.
The Unique Weapon of Abuse in Same-Sex Relationships
As identified in the amicus brief filed by North Carolina LGBTQ+ Non-Profit Organizations, not only are parties in same-sex dating relationships vulnerable to the same instances of domestic violence as parties in opposite-sex dating relationships, they are also vulnerable to a special weapon of abuse. Brief of Amici Curiae North Carolina LGBTQ Non-Profit Organizations, 7, M.E. v. T.J. (No. COA 18-1045) https://www.acluofnorthcarolina.org/en/cases/domestic-violence-protections-lgbtq-people. Parties in same-sex dating relationships are also vulnerable abuse stemming from a party threatening to “out” their victims. Id. at 8. See Sandra E. Lundy, Abuse That Dare Not Speak Its Name: Assisting Victims of Lesbian and Gay Domestic Violence in Massachusetts, 28 New Eng. L. Rev. 273, 282083 (1993). This is not a component of an opposite-sex relationship because of the historical acceptance of opposite-sex couples.
Additionally, the current Victim’s Rights Act provides rights to victims of certain crimes who are in a Chapter 50B “personal relationship,” thereby excluding victims of same-sex dating violence. See N.C. Gen. Stat. § 15A-830(g). When there is nowhere to turn, victims often return to their abusers.” Natalie E. Serra, Queering International Human Rights: LGBT Access to Domestic Violence Remedies, 21 Am. U. J. Gender Soc. Pol’y L. 583, 605 (2013).
What is Next for North Carolina and Echoes of HB2
The question of assault on a female and rape statutes that have gendered language was brought up by a judge during oral arguments in this case. If Chapter 50B protections are extended to same-sex couples and the gendered language is changed to extend to all parties in a relationship instead of only parties in opposite-sex relationship, it remains to be an issue whether statutes that protect women specifically from men specifically should remain valid under this same reasoning.
Furthermore, as indicated in all three briefs that were filed with the Court of Appeals in support of the extension of protection, North Carolina has an extensive history of discriminating against the LGBTQ+ community. The most relevant case of discrimination was House Bill 2 in 2016 that made it illegal for cities to allow those who had not surgically or legally changed the gender on their birth certificate to use the public restroom for the gender that they identify as. SeeMichael Gordon, Mark S. Price, & Katie Peralta, Understanding HB2: North Carolina’s newest law solidifies state’s role in defining discrimination, The Charlotte Observer (Mar. 2016), https://www.charlotteobserver.com/news/politics-government/article68401147.html.
This was not only a major loss for the LGBTQ+ community in North Carolina, it was a loss for North Carolina as it denied protection to a vulnerable group of citizens. While “HB2” was repealed in 2017, some anti-discrimination ordinances still remain in place in North Carolina, which means that this discrimination may still be a part of North Carolina’s future.
North Carolina adapt to protect all of its citizens. In order to continue to ensure its citizens the highest protection and equal protection under the law, Chapter 50B must extend protection to parties in same-sex dating relationships. Without a decision to change the course of discrimination against the LGBTQ+ community, with the extension of domestic violence protections as only one step, North Carolina could lose valuable cultural and economic opportunities, as it did with the passage of HB2. Id. (citing the National Basketball Association deciding to move its All-Star Game out of North Carolina which cost the City of Charlotte $100 million).
North Carolina may be the last state to extend domestic violence equivalent protection to parties in same-sex relationships, but it has every chance to change that with an opinion from the Court of Appeals invalidating the application of 50B to M.E. and extending the right to a Chapter 50B protective order to parties in same-sex dating relationships in North Carolina.