Court: NC domestic violence orders must also apply to LGBT people
Published 12:02 pm Sunday, January 3, 2021
By Gary D. Robertson, Associated Press
Domestic violence protection orders issued by North Carolina judges to keep apart people in abusive or frightening dating relationships must be granted in same-sex cases as well, a divided state appeals court panel ruled Thursday.
North Carolina appears to be the only state that expressly limits such restraining orders upon dating couples who aren’t living together to those of the opposite sex, according to statements from civil rights and legal activists and a ruling elsewhere.
State law laying out how those orders are issued violate both the North Carolina and U.S. constitutions by treating LGBT people differently based upon whom they wish to be intimate with, Court of Appeals Chief Judge Linda McGee wrote in the majority opinion. The case could end up before the state Supreme Court.
Recent U.S. Supreme Court rulings requiring states to recognize gay marriage and declaring unlawful employee discrimination on the basis of sexual orientation make clear that the law must treat people in different relationships the same, McGee added.
The denial in same-sex dating cases “runs directly counter to the promotion of the public good, welfare, morals, safety and any other legitimate public interests of the state,” she wrote in directing the law applied to all dating relationships.
The ruling stemmed from a Wake County case in which a woman who ended her dating relationship with another woman in 2018 feared for her safety. She asked a local judge to issue what’s called a Domestic Violence Protective Order that kept her ex-girlfriend from having any contact with her.
The domestic violence law allows such orders to be issued between former and current spouses and same- and opposite-sex couples who live or have or lived in the same household. But it also applied to “persons of the opposite sex who are in a dating relationship or have been in a dating relationship.”
Wake County District Court Judge Anna Worley wrote that meant she lacked authority to issue the order because of the law’s language. The judge did issue a civil no-contact order to the woman, identified in the opinion only by her initials for privacy. But the civil order is considered to provide fewer protections. The ruling was appealed.
McGee said the law’s limitations “subjected (the) plaintiff to a heightened potential of harassment, or physical abuse, by denying her the more stringent and immediately accessible remedies and protections provided to ‘opposite sex’ victims of domestic violence in situations similar to hers.”
The American Civil Liberties Union of North Carolina, which represented the woman seeking the order, praised the decision.
The “ruling is an important victory for equality. Intimate partner violence does not discriminate, and neither should state laws protecting people from that violence,” Irena Como, one of the woman’s ACLU lawyers, said in a release.
Attorney General Josh Stein and Gov. Roy Cooper, who was attorney general for 16 years, filed briefs urging that the court ensure violence protection orders apply to all people. “This decision is a win for equality and inclusion and for our fight against domestic violence in North Carolina,” Cooper said Thursday.
Court of Appeals Judge Wanda Bryant agreed with McGee. Judge John Tyson disagreed, pointing to a series of procedural failings. Tyson said they included the lack of proper paperwork to seek an appeal and the failure to add legislative leaders as defendants on such a constitutional challenge to state law.
“There is no subject matter jurisdiction nor any other issues that are properly before this court,” Tyson wrote. The 2-1 decision at the intermediate-level appeals court means the Supreme Court is obligated to hear the case if asked. The defendant in the case, the woman’s ex-girlfriend, didn’t participate in the Court of Appeals matter.
WomensLaw.org, a database on domestic violence laws associated with the National Network to End Domestic Violence, said North Carolina and South Carolina had been the only states where unmarried people could only seek protection orders against opposite-sex abusers. But the South Carolina Supreme Court ruled in late 2017 that such protections must be extended to any unmarried couple.
The opinions were released on McGee and Bryant’s final day as the Court of Appeals judges. Both decided not to seek reelection in November. McGee is the longest-serving Court of Appeals judge in state history, first appointed in 1995. Bryant first joined the court in 2001.