Same-Sex Couples and 50B Domestic Violence
M.E. v. T.J., ___ N.C. App. ___ (2020).
Domestic Violence Protection Orders (DVPO) are under chapter 50B in North Carolina. They are sought by complaining parties when they are the victims of violence. But under this section, in order to seek a DVPO, a complaining party must first claim domestic violence perpetrated by someone with whom the complaining party has or had a personal relationship. However, even with recent amendments, the statute currently did not allow for a same-sex, non-married, couple to seek a DVPO if they did not reside together. Below is what could be a landmark case, declaring that the 50B statute is unconstitutional.
- Facts: Plaintiff and Defendant were in a same-sex relationship. The relationship ended, but Plaintiff sought a 50B Domestic Violence Protective Order (DVPO) and emergency ex parte DVPO. The trial court denied the request for ex parte DVPO, despite finding that Plaintiff’s allegations were “significant” and that Defendant had been unlawful. The reasoning was that Plaintiff and Defendant were in a same sex relationship and had not resided together. The DVPO was also denied for the same reason. Plaintiff appealed.
- Issue: Did the trial court err when it denied the 50B ex parte DVPO and DVPO?
- Rationale: Plaintiff argued that the denial of her DVPO requests violated her constitutional rights to due process and under the equal protection clause. One way a 50B DVPO is granted is by showing that unlawful acts were committed by a person that lives with the complaining party, or in a personal relationship with the complaining party. Some ways the 50B statute define a personal relationship are a current or former spouse, or two persons of opposite sex that live together or have lived together, or persons of the opposite sex who are in a dating relationship or have been. The Court of Appeals arrived at a constitutional test that must consider: 1) laws that serve to deny members of the LGBTQ+ community the same rights afforded to non-members are suspect; 2) actual intent of the law enacted (taking cues from plain language, impact, historical and legislative review); 3) harms caused to persons from the deprivation of rights; 4) the harms stemming from a long history of disapproval of LGBTQ+ persons; and 5) the particular injuries to dignity and autonomy that occur when state action deprives those members of the same rights afforded to non-members. The next step is to weigh those factors against the legitimate state interest. In this case, there was no legitimate interest in not allowing a complaining party to bring an action under 50B against their same-sex partner or ex-partner.
- Lessons and Observations:
- First, when reading this opinion, it is known that the Court of Appeals suggests that the NC Supreme Court can review and fashion an alternative holding. The Court in this case included alternative holdings, first based on a line of cases: Romer, Windsor, Lawrence, and Obergefell, which decided landmark LGBTQ+ issues. Second, based on the more recent Bostock, which concluded that discrimination based on LGBTQ+ status is always discrimination based on sex or gender. No matter which method is used, the conclusion still ends up being that the 50B statute is unconstitutional because it can deprive LGBTQ+ members from filing for DVPOs against their same-sex partners.