M.E. v. T.J., ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020)

The plaintiff and defendant were in a same-sex dating relationship, and when it ended M.E. sought a domestic violence protective order against T.J. The plaintiff alleged that the defendant had engaged in harassment and threatening conduct, and had access to firearms. At a hearing on the requested order, the trial court concluded that it could not enter a 50B protective order because the “allegations are significant but parties are in same sex relationship and have never lived together, therefore do not have relationship required” under the statute. The parties’ relationship fell outside the scope of the statute because “pursuant to the definitions in N.C.G.S. § 50B-1, violence against a person with whom the perpetrator either is, or has been, in a ‘dating relationship’ is not ‘domestic violence,’ no matter how severe the abuse, unless the perpetrator of the violence and the victim of the violence ‘[a]re persons of the opposite sex[.]’ N.C.G.S. § 50B-1(b)(6).” The trial court entered a civil no-contact order pursuant to Chapter 50C instead, and the plaintiff appealed.

The Attorney General’s office and several non-profit groups filed amicus curiae briefs in support of the petitioner, and neither the defendant nor any other parties filed a brief on defendant’s behalf, so the appellate court appointed an amicus curiae to file a brief in response to the plaintiff’s argument. Noting that the trial court would have held that the allegations supported the entry of a 50B order if not for the fact that petitioner and defendant were the same sex, the plaintiff argued that “the trial court’s denial of her request for a DVPO violated constitutional rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as the associated provisions of the North Carolina Constitution.” The plaintiff made an as-applied constitutional challenge, but the appellate court observed that its ruling would apply to any other similarly situated applicants. Noting the “ambiguity surrounding the appropriate test to apply in LGBTQ+ based Fourteenth Amendment cases” in the wake of recent cases including Obergefell v. Hodges, 576 U.S. 644 (2015), the Court of Appeals reviewed plaintiff’s claim under several alternative levels of review, but ultimately held that “no matter the review applied, N.C.G.S. § 50B-1(b)(6) does not survive Plaintiff’s due process and equal protection challenges under either the North Carolina Constitution or the Constitution of the United States.” 

First, the appellate court applied the traditional scrutiny framework (rational basis, intermediate scrutiny, or strict scrutiny) to evaluate the plaintiff’s due process and equal protection claims under the state constitution and the Fourteenth Amendment. Pursuant to Obergefell and other precedent, “any member of the LGBTQ+ community has the same rights and freedoms to make personal decisions about dating, intimacy, and marriage as any non-LGBTQ+ individual.” A statute impinging on those liberties on the basis of sex or gender must pass a higher level of scrutiny (“at least” intermediate). Since excluding the plaintiff from the protections of the statute served no legitimate government interest, and was in fact contrary to the broader statutory purpose of protecting all victims of domestic violence, “N.C.G.S. § 50B-1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated” under the state constitution, and “cannot survive even the lowest level of scrutiny.” Turning to the Fourteenth Amendment, the court likewise held that the statute did not pass constitutional muster. Plaintiff’s rights and interests were “were identical in every way to those of any other woman in an ‘opposite sex’ relationship” yet she and others similarly situated “are intentionally denied, by the State, the same protections against the domestic violence that may occur after a ‘break-up’” based solely upon sex or membership in a particular class. The court held that the opposite-sex requirement in G.S. 50B-1(b)(6) failed the higher scrutiny test because it was an arbitrary distinction that bore no reasonable or just relation to the classification of protected individuals. The court again noted that the statute would not pass even the lower level of rational basis scrutiny, since there was no cognizable government interest that such a restriction would serve.

Next, reviewing U.S. Supreme Court precedent that culminated in Obergefell, the appellate court found that the cases have “labored to determine the correct standards to apply in the face of government action that had a discriminatory effect on members of the LGBTQ+ community,” resulting in an alternative approach described as a “full Fourteenth Amendment review” that “does not readily fit within the ‘rational basis,’ ‘intermediate scrutiny,’ or ‘strict scrutiny’ triad.” This hybrid approach involves three considerations: (1) the government’s clear intent in passing the law; (2) the impact of majority opposition becoming law and policy, and the consequence it has on those whose liberty is denied; and (3) the particular harms inflicted on same-sex individuals, couples, or families. More specifically, courts must view laws that deny rights to LGBTQ+ individuals as initially suspect, and consider factors such as the state’s actual intent in passing the law, the particular harms suffered by affected individuals, the long history of disapproval of LGBTQ+ relationships, and the injury caused by state action which singles out and stigmatizes those individuals. Those factors are then weighed against any legitimate interest advanced by the law, considering the particular facts and context. Applying those factors and relevant precedent to the present case, the court held that “N.C.G.S. § 50B-1(b)(6) does not survive this balancing test” given the plain language of the statute denying protections to similarly situated people based on sex or gender.

The majority opinion closed by addressing issues related to its appointment of amicus curiae to brief a response to the plaintiff’s appeal. Due to public interest and the potential impact of the decision, as well as the fact that no brief was filed by or on behalf of the defendant, the court appointed an amicus curiae to “defend the ruling of the trial court” and provide the court with the benefit of an opposing view on the constitutionality of the statute. However, the court clarified that an appointed amicus curiae has a limited role under the appellate rules, and does not have the same standing as the original party. As a result, the additional arguments raised by the amicus on behalf of the defendant challenging the court’s jurisdiction and seeking to amend the record on appeal were dismissed as a nullity.

The trial court’s order denying the plaintiff a 50B protective order was reversed and remanded for entry of an appropriate order. The trial court was instructed to apply G.S. 50B-1(b)(6) as stating: “Are persons who are in a dating relationship or have been in a dating relationship.” The court’s ruling applies to any other similarly situated person who seeks a 50B protective order, and the same-sex or opposite-sex nature of the relationship shall not be a factor in the decision to grant or deny the order.

Judge Tyson dissented, and would have held that the appellate court lacked jurisdiction to decide the matter based on the plaintiff’s dismissal of the original 50B complaint, as well as her failure to argue and preserve the constitutional issues, join necessary parties, and comply with other procedural and appellate rules.