# M.E. v. T.J. > Court of Appeals of North Carolina · December 31, 2020 URL: https://www.frixlaw.com/law-library/cases/10485687 ## Case - **Court:** Court of Appeals of North Carolina - **Decided:** December 31, 2020 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10485687 ## Opinion text IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-1045 Filed: 31 December 2020 Wake County, No. 18 CVD 600773 M.E., Plaintiff-Appellant, v. T.J., Defendant-Appellee. Appeal by Plaintiff from order entered 7 June 2018 by Judge Anna Worley in District Court, Wake County. Heard in the Court of Appeals 17 September 2019. Sharff Law Firm, PLLC, by Amily McCool, and ACLU of North Carolina Legal Foundation, Inc., by Emily E. Seawell and Irena Como, for Plaintiff-Appellant. Lorin J. Lapidus, court appointed amicus curiae. Governor Roy A. Cooper, III, and Attorney General Joshua H. Stein, by Deputy Solicitor General Ryan Y. Park, for North Carolina Department of Justice, amicus curiae. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Sarah M. Saint and Eric M. David, and Equality NC, by Ames B. Simmons, for North Carolina LGBTQ+ Non-Profit Organizations, amici curiae. Womble Bond Dickinson, by Amalia Manolagas, Kevin Hall, pro hac vice, and Allen O’Rourke, Legal Aid of North Carolina, by Celia Pistolis, Amy Vukovich, and Elyisa Prendergast-Jones, and North Carolina Coalition Against Domestic Violence, by Sherry Honeycutt Everett, for Legal Aid of North Carolina, North Carolina Coalition Against Domestic Violence, and several local domestic violence support organizations, amici curiae. McGEE, Chief Judge. I. Factual and Procedural Background M.E. V. T.J. Opinion of the Court A. Introduction M.E. (“Plaintiff”) and T.J. (“Defendant”) were in a dating relationship that did not last. Plaintiff decided the relationship had reached its end and, on 29 May 2018, Plaintiff undertook the difficult task of informing Defendant that their relationship was over. According to Plaintiff, Defendant did not accept Plaintiff’s decision, and responded in a manner that ultimately led Plaintiff to visit the Wake County Clerk of Court’s office on the morning of 31 May 2018, seeking the protections of a Domestic Violence Protective Order (“DVPO”), as well as an ex parte temporary “Domestic Violence Order of Protection” (“ex parte DVPO”), pursuant to Chapter 50B of the North Carolina General Statutes: “An Act to Provide Remedies for Domestic Violence” (the “Act” or “Chapter 50B”). 1979 North Carolina Laws Ch. 561, §§ 1–8. At the time of the enactment of Chapter 50B, same-sex marriage was not legal, and the General Assembly specifically limited the protections of Chapter 50B to unmarried couples comprising “persons of the opposite sex.” Id. Although the trial court determined Plaintiff’s “allegations [we]re significant,” and “[P]laintiff ha[d] suffered unlawful conduct by [D]efendant,” the trial court denied Plaintiff’s request for an ex parte DVPO. The order denying Plaintiff’s request for an ex parte DVPO states that the “only reason [P]laintiff [is] not receiving [an ex parte] 50B DVPO today” is because Plaintiff and Defendant had been in a “same sex relationship and [had] not live[d] together[.]” Plaintiff received the same result at a 2 M.E. V. T.J. Opinion of the Court 7 June 2018 hearing on her request for a permanent DVPO. The trial court denied Plaintiff the protections of a Chapter 50B DVPO in a 7 June 2018 order that stated: “A civil no-contact (50C) order was granted contemporaneously on the same allegations and had the parties been of opposite genders, those facts would have supported the entry of a [DVPO] (50B).” As the trial court note, it contemporaneously entered a “No-Contact Order for Stalking” granting Plaintiff the lesser protections afforded by Chapter 50C. On appeal, Plaintiff argues that the denial of her requests for ex parte and permanent DVPOs under Chapter 50B violated her Fourteenth Amendment and state constitutional rights to due process and equal protection of the laws. We set forth additional relevant facts and address Plaintiff’s arguments below. B. Additional Facts Plaintiff went to the Clerk’s office on 31 May 2018 and explained her situation to the staff members, who gave Plaintiff the appropriate forms to file a Chapter 50B “Complaint and Motion for Domestic Violence Protective Order” (“AOC-CV-303”), which also includes a section to request a temporary “Ex Parte Domestic Violence Order of Protection.” See N.C.G.S. § 50B-2(d) (2017) (“The clerk of superior court of each county shall provide to pro se complainants all forms that are necessary or appropriate to enable them to proceed pro se pursuant to this section. The clerk shall, 3 M.E. V. T.J. Opinion of the Court whenever feasible, provide a private area for complainants to fill out forms and make inquiries.”). Plaintiff filled out AOC-CV-303 and additional forms she had been given, alleging Defendant had committed physical and otherwise threatening actions against her, and stating her concern that Defendant had “access to [Defendant’s] father’s gun collection.” Plaintiff requested “emergency relief” by way of “an Ex Parte Order,” based upon her belief that “there [wa]s a danger of [further] acts of domestic violence against [her]” before a formal DVPO hearing could be set. Plaintiff stated: “I want [] [D]efendant ordered not to assault, threaten, abuse, follow, harass or interfere with me[;]” “I want [] [D]efendant to be ordered to have no contact with me.” Plaintiff also asked the trial court to order Defendant “not to come on or about” Plaintiff’s residence or her place of work; to take anger management classes; and “to prohibit [] [D]efendant from possessing or purchasing a firearm.” Form AOC-CV-303 is based on the requirements for a DVPO as set forth in Chapter 50B, including the definition of “domestic violence” found in N.C.G.S. § 50B- 1. The definition of “domestic violence” in N.C.G.S. § 50B-1 includes acts by a defendant “[a]ttempting to cause bodily injury, [] intentionally causing bodily injury[, or] [p]lacing the aggrieved party . . . in fear of imminent serious bodily injury or continued harassment . . . that rises to such a level as to inflict substantial emotional distress” when the defendant’s acts were against a “person,” the plaintiff, with whom 4 M.E. V. T.J. Opinion of the Court the defendant was in a “personal relationship.” N.C.G.S. §§ 50B-1(a)(1)-(2). Relevant to Plaintiff’s appeal, the definition of “personal relationship” required that Plaintiff and Defendant were either “in a dating relationship or had been in a dating relationship.” N.C.G.S. §§ 50B-1 (b)(6). Therefore, 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 only box on AOC-CV-303 relevant to the “dating” nature of Plaintiff’s relationship with Defendant was the one that stated: “The defendant and I . . . are persons of the opposite sex who are in or have been in a dating relationship.” Having no other option, Plaintiff checked that box and filed her complaint. Plaintiff first spoke with the trial judge concerning her “request for Ex Parte Order” during the morning family court session on 31 May 2018, but was informed that because both she and Defendant were women, and only in a “dating” type relationship, N.C.G.S. § 50B-1(b)(6) did not allow the trial court to grant her an ex parte DVPO or any other protections afforded by Chapter 50B. Plaintiff was informed that she could seek a civil ex parte temporary no-contact order and a permanent civil no-contact order, pursuant to Chapter 50C. See N.C.G.S. § 50C-2 (2017). Chapter 50C expressly states that its protections are for “person[s] against whom an act of 5 M.E. V. T.J. Opinion of the Court unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b).” N.C.G.S. § 50C-1(8) (2017) (emphasis added). Plaintiff returned to the Clerk’s office, obtained the forms for Chapter 50C protections, including Form AOC-CV-520, “Complaint for No-Contact Order for Stalking,” filled them out, and filed them. Plaintiff’s motions for both civil ex parte and permanent no-contact orders were filed under a new case file number. Plaintiff decided to argue for both an ex parte DVPO and a permanent DVPO under Chapter 50B and, should these Chapter 50B requests be denied, for Chapter 50C ex parte and permanent civil “Temporary No-Contact Order[s] for Stalking.” Plaintiff’s actions were heard at the afternoon session that same day, 31 May 2018, and the trial court entered its “‘Amended’ Ex Parte Domestic Violence Order of Protection,” which denied Plaintiff’s request for an ex parte DVPO, but set a hearing date of 7 June 2018 for a hearing on Plaintiff’s request for a permanent DVPO.1 In the “Relationship to Petitioner” section of this order, the box checked by the trial court to define Plaintiff’s relationship to Defendant was “of opposite sex, currently or formerly in dating relationship[.]” The trial court also checked Box 8, which states that “[P]laintiff has failed to prove grounds for ex parte relief[;]” Box 14, stating “the 1 This order had “Amended” handwritten at the top of the order, likely because the original date set for the hearing of Plaintiff’s “Complaint and Motion for Domestic Violence Protective Order,” 12 June 2018, was changed by hand on the order to 7 June 2018. 6 M.E. V. T.J. Opinion of the Court request for Ex Parte Order is denied[;]” and Box 15, “Other: (specify)[,]” writing: “HEARING ONLY – set for hearing on [7 June 2018] . . .; allegations are significant but parties are in same sex relationship and have never lived together, therefore do not have relationship required in [N.C.G.S. § 50B-1(b)].” The trial court granted Plaintiff’s ex parte request pursuant to Chapter 50C by entering a “Temporary No-Contact Order for Stalking or Nonconsensual Sexual Conduct” (the “ex parte 50C Order”), also on 31 May 2018. See N.C.G.S. § 50C-6(a) (2017). In the ex parte 50C Order, the trial court found as fact that “[P]laintiff has suffered unlawful conduct by [] [D]efendant in that:” “On 5/29/18, [D]efendant got physically aggressive and was screaming in [Plaintiff’s] face; [D]efendant then left after LEO [law enforcement officers] were called; after LEO left,” Defendant “attempted to re-enter [Plaintiff’s] house; LEO returned to remove [Defendant] from [Plaintiff’s] house; since that date, [D]efendant has repeated[ly] called [Plaintiff], texted [P]laintiff from multiple numbers, and contacted [P]laintiff’s friends and family[.]” The trial court found that Defendant “continues to harass [P]laintiff[,]” and that “[D]efendant committed acts of unlawful conduct against [] [P]laintiff.” The trial court concluded that the “only reason [P]laintiff [is] not receiving [a] 50B DVPO today” is because Plaintiff and Defendant had been “in [a] same sex relationship and do not live together[,]” and that N.C.G.S. § 50B-1(b), as plainly written, requires the dating 7 M.E. V. T.J. Opinion of the Court relationship involved to have consisted of people of the “‘opposite sex[.]’” (Emphasis added). The “HEARING ON [Plaintiff’s] 50B and 50C MOTIONS” was conducted on 7 June 2018. At this hearing, the trial court considered Plaintiff’s “Complaint for No- Contact Order for Stalking or Nonconsensual Sexual Conduct” under N.C.G.S. §§ 50C-2 and 50C-5, and her “Complaint and Motion for Domestic Violence Protective Order” under N.C.G.S. §§ 50B-2 and 50B-3. Defendant appeared pro se, but Plaintiff was represented at this hearing, and her attorney informed the trial court: [Plaintiff] came in on May 31st and filed a complaint for that [DVPO]. She – that was what she was intending in getting the relief for, for a [DVPO] against [Defendant]. As I’m sure this court knows, that [DVPO] gives [Plaintiff] more protection than a 50C. [Plaintiff was] in an intimate relationship with [Defendant]. However, when [Plaintiff] went to file for that [DVPO] and looked at the boxes that describe the allowable personal relationships, that – unfortunately, there was not a personal relationship box that fit her relationship with [Defendant] because they [we]re in a same-sex dating relationship and have never lived together. Because of that, [Plaintiff] did go ahead and proceed with filing that complaint for a [DVPO] and chose the box that was the closest that fit her relationship [with Defendant] and checked the opposite-sex dating partners. 8 M.E. V. T.J. Opinion of the Court Defendant consented to an amendment to the order to indicate her relationship with Plaintiff was one “of same sex currently or formerly in dating relationship.”2 The trial court questioned the necessity of amending the Form AOC-CV-306, which is the AOC form used by trial courts to grant or deny a petitioner’s request for a DVPO—thereupon becoming the trial court’s order. The trial court stated: “I do not have a complaint that . . . would survive a Rule 12 motion” because the plain language of N.C.G.S. § 50B-1(b)(6) limits relief to only those victims who suffer violence from dating or ex-dating partners that are of the “opposite sex.” Plaintiff’s attorney argued: [Plaintiff] should be allowed to proceed with the [DVPO], that . . . the statute, . . . 50B, is unconstitutional as it’s written post the same-sex marriage equality case from the Supreme Court in Obergefell and that there’s no rational basis at this point to have a statute that limits dating relationships to folks of opposite sex. So we would ask that Your Honor consider allowing [Plaintiff] to proceed with her [DVPO] case. (Emphasis added). The trial court, by order entered 7 June 2018 (the “50B Order”), dismissed Plaintiff’s complaint under Chapter 50B based upon a finding that Plaintiff had “failed to prove grounds for issuance of a” DVPO. On the 50B Order, the trial court checked Box 8, “Other,” and wrote in the space included for Box 8: [P]laintiff has failed to state a claim upon which relief can be granted pursuant to the statute, due to the lack of statutorily defined personal relationship. A civil no- 2 On the Form AOC-CV-306, the word “opposite” was stricken and the word “same” was written just above. 9 M.E. V. T.J. Opinion of the Court contact (50C) order was granted contemporaneously on the same allegations and had the parties been of opposite genders, those facts would have supported the entry of a Domestic Violence Protective Order (50B). (Emphasis added). The trial court continued, noting: N.C.G.S. 50B was last amended by the legislature in 2017 without amending the definition of “personal relationship” to include persons of the same sex who are in or have been in a dating relationship. This recent amendment in 2017 was made subsequent to the United States Supreme Court decision in Obergefell v. Hodges[] and yet the legislature did not amend the definition of personal relationship to include dating partners of the same sex. (Emphasis added). The trial court also attached “Exhibit A”—a separate document titled “Order Denying Plaintiff’s Motion for a DVPO,” which the trial court “fully incorporated” into the 50B Order. Exhibit A states in relevant part: 2. [ ] Plaintiff, through her counsel, argued that she should be allowed to proceed on her request for a [DVPO] because the current North Carolina General Statute 50B-1(b) is unconstitutional after the United States Supreme Court decision in Obergefell v. Hodges and that there is no rational basis for denying protection to victims in same-sex dating relationships who are not spouses, ex-spouses, or current or former household members. 3. North Carolina General Statute 50B was passed by the North Carolina General Assembly in 1979 and later amended on several occasions. It states that an aggrieved party with whom they have a personal relationship may sue for a [DVPO] in order to prevent further acts of domestic violence. The question for the Court is how a personal relationship is defined. North Carolina General Statute 50B-1 states: “for purposes of this section, the term ‘personal relationship’ means wherein the parties involved: 10 M.E. V. T.J. Opinion of the Court (1) are current or former spouses; (2) are persons of opposite sex who live together or have lived together; (3) are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; (4) have a child in common; (5) are current or former household members; (6) are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.” .... 4. This definition prohibits victims of domestic violence in same sex dating relationships that are not spouses, ex- spouses, or current of former household members from seeking relief against a batterer under Chapter 50B. 5. [This court] must consider whether it has jurisdiction to create a cause of action that does not exist and to enter an order under this statute when the statute specifically excludes it. The difficult answer to this question is no, it does not. The General Assembly has the sole authority to pass legislation that allows for the existence of any domestic violence protective order. The legislature has not extended this cause of action to several other important family relationships including siblings, aunts, uncles, “step” relatives, or in-laws. 6. In this context, the Courts only have subject matter jurisdiction and the authority to act and enjoin a defendant when the legislature allows it. On numerous occasions the Court of Appeals has stricken orders entered by the District Court that do no[t] include proper findings of fact or conclusions of law that are necessary to meet the statute. [ ] Defendant must be on notice that a cause of action exists under this section when the act of domestic violence is committed. [This court] cannot enter a [DVPO] against a [d]efendant when there is no statutory basis to do so. . . . . 11 M.E. V. T.J. Opinion of the Court IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows: 1. [ ] Plaintiff has failed to prove grounds for issuance of a [DVPO] as Plaintiff does not have a required “personal relationship” with [ ] Defendant as required by [Chapter] 50B. (Emphasis added). Plaintiff appeals. This Court granted motions to file amicus curiae briefs, in support of Plaintiff, from two separate groups consisting of non-profit organizations involved in domestic violence and LGBTQ+ issues: “North Carolina Coalition Against Domestic Violence” and “North Carolina LGBTQ+ Non-Profit Organizations.” Notably, the Attorney General of the State of North Carolina also filed a motion to brief the matter as an amicus curiae, which was granted. This motion stated “the Attorney General, on behalf of the State, seeks to file a brief as amicus curiae in this case to vindicate the State’s powerful interests in safeguarding all members of the public from domestic violence.” The State argued that its interest, including the “State’s law-enforcement community,” is in “ensuring that law enforcement has robust tools at its disposal to prevent and punish domestic violence” and “in ensuring that all its people are treated equally under the law”—particularly “where certain groups are being denied equal legal protections from private violence[,]” because “[t]he State and its law- enforcement community have an obligation to ensure the safety and security of all North Carolinians, without regard to their sexual orientation.” Defendant did not 12 M.E. V. T.J. Opinion of the Court file an appellee brief, and no amici sought to file briefs contesting Plaintiff’s arguments on appeal. There were also no motions filed by any entity of the State to submit an amicus brief, or otherwise intervene in this action, for the purpose of arguing in favor of the constitutionality of the Act. Therefore, this Court, on its own motion and by order entered 3 May 2019, appointed an amicus curiae (“Amicus”), to brief an argument in response to Plaintiff’s arguments on appeal. II. Plaintiff’s Arguments on Appeal Plaintiff argues 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. See U.S. Const. amend. V; U.S. Const. amend. IX; U.S. Const. amend. XIV, § 1; N.C. Const. art. I, Declaration of Rights; N.C. Const. art. I, §§ 1, 2, 18, 19, 35, 36, 37. Therefore, as discussed below, our analysis is limited to a de novo review of whether Plaintiff was unconstitutionally denied a DVPO under N.C.G.S. § 50B-1(b)(6) solely based on the fact that Plaintiff is a woman and Defendant is also a woman. “Defendant’s appeal raises questions of public policy as well as of law. We are concerned with the law, of course, but matters of public policy . . . cannot be disregarded in their interpretation.” State v. Harris, 216 N.C. 746, 751, 6 S.E.2d 854, 858 (1940). 13 M.E. V. T.J. Opinion of the Court Plaintiff also states that her challenge to N.C.G.S. § 50B-1(b)(6) is an “as- applied” challenge, not a facial challenge. There is no dispute that, in general, if the “parties involved” in a “personal relationship” “[a]re persons of the opposite sex[,]” as defined by N.C.G.S. § 50B-1(b)(6), one of those “parties involved” may seek the protections of a DVPO against the other. Therefore, the application of N.C.G.S. § 50B-1(b)(6) does not violate the constitutional rights of “parties involved.” N.C.G.S. § 50B-1(b)(6); see also Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 460, 786 S.E.2d 335, 347 (2016), aff’d, 369 N.C. 722, 799 S.E.2d 611 (2017). There are important applications of N.C.G.S. § 50B-1(b)(6), such as protecting people in “opposite-sex” relationships from domestic violence through the issuance of DVPOs, that clearly do not violate the constitutional rights of those applicants; therefore, based upon the facts before us, Plaintiff’s challenge to N.C.G.S. § 50B-1(b)(6) is as-applied. Genesis Wildlife, 247 N.C. App. at 460, 786 S.E.2d at 347 (citation omitted) (“‘an as-applied challenge represents a plaintiff’s protest against how a statute was applied in the particular context in which plaintiff acted or proposed to act, while a facial challenge represents a plaintiff’s contention that a statute is incapable of constitutional application in any context’”); see also Doe v. State, 421 S.C. 490, 504, 808 S.E.2d 807, 814 (2017) (in which the Supreme Court of South Carolina found a statute similar to N.C.G.S. § 50B-1(b)(6) facially constitutional, but unconstitutional as applied to the petitioner). 14 M.E. V. T.J. Opinion of the Court Although Plaintiff is making an as-applied challenge to N.C.G.S. § 50B-1(b)(6) in this action, as in Doe, if we decide in favor of Plaintiff’s as-applied challenge, our holdings will also prevent the unconstitutional denial of DVPOs to other persons “in similar same-sex relationships[.]” Doe, 421 S.C. at 509–10, 808 S.E.2d at 817 (citation omitted) (“[W]e declare sections [of the relevant statutes] unconstitutional as applied to Doe. Therefore, the family court may not utilize these statutory provisions to prevent Doe or those in similar same-sex relationships from seeking an Order of Protection.”). In other words, if this Court decides that N.C.G.S. § 50B-1(b)(6) was unconstitutionally applied to Plaintiff in denying her request for a DVPO, based solely or in part on her gender or gender-identity, denial of the protections of Chapter 50B to any similarly situated plaintiff would also be prohibited as an unconstitutional application of the statute to that plaintiff. We note that the trial court found as fact: “A civil no-contact (50C) order was granted contemporaneously on the same allegations [contained in Plaintiff’s complaint and motion for a DVPO] and had the parties been of opposite genders, those facts would have supported the entry of a Domestic Violence Protective Order (50B).” (Emphasis added). This finding of fact is not challenged on appeal, and is therefore binding.3 Matter of M.C., 374 N.C. 882, __, 844 S.E.2d 564, 567 (2020). 3 Had the trial court granted Plaintiff a Chapter 50B DVPO, that decision would be a matter of law that we would review de novo, but the unchallenged statement that the trial court would have granted the DVPO, had Plaintiff been a man, is a finding of fact that is conclusive on appeal. 15 M.E. V. T.J. Opinion of the Court III. N.C.G.S. § 50B-1 The trial court concluded that “had [Plaintiff and Defendant] been of opposite genders, th[e] facts [found] would have supported the entry of a” DVPO, but it denied Plaintiff’s request for a DVPO because the “definition [in N.C.G.S. § 50B-1(b)(6)] prohibits victims of domestic violence in same sex dating relationships that are not spouses, ex-spouses, or current or former household members from seeking relief against a batterer under Chapter 50B.” Issuance of a DVPO pursuant to both N.C.G.S. §§ 50B-2 and 3 requires a proper allegation of “domestic violence” as defined by N.C.G.S. § 50B-1, which states in relevant part: (a) Domestic violence means 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 rises to such a level as to inflict substantial emotional distress[.] .... (b) For purposes of this section, the term “personal relationship” means a relationship wherein the parties involved: (1) Are current or former spouses; 16 M.E. V. T.J. Opinion of the Court (2) Are persons of opposite sex who live together or have lived together; (3) Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; (4) Have a child in common; (5) Are current or former household members; (6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. . . . . N.C.G.S. § 50B-1 (emphasis added). The clear intent of this definition of “domestic violence” is to exclude victims of domestic violence from the protection of the Act if they and their abusive partners are of the same “sex”—though both men and women can seek the protections of a DVPO, so long as their alleged abusers are of the “opposite sex.” Although the Act has been amended multiple times, including after the United States Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644, 192 L. Ed. 2d 609 (2015), N.C.G.S. § 50B-1 has not been amended to retract the language limiting the protections of a DVPO in certain circumstances to persons in “opposite-sex” relationships. IV. Legal Background and Review Plaintiff’s arguments are challenges based upon the due process and equal protection clauses of both our state and federal constitutions. Below, we will review 17 M.E. V. T.J. Opinion of the Court Plaintiff’s challenge under the Constitution of North Carolina, then review Plaintiff’s Fourteenth Amendment arguments. In the recent opinions involving Fourteenth Amendment challenges to state action directed at people of “same-sex” status, the analyses of the United States Supreme Court have been based upon the Due Process Clause, the Equal Protection Clause, and a hybrid application of both—incorporating both the due process concept of fundamental “liberty” and equal protection “disparate treatment” review. The review in these cases does not appear to fit neatly within the traditional “rational basis,” “intermediate scrutiny,” or “strict scrutiny” review of challenges under the Fourteenth Amendment. We will hereafter refer to this “hybrid” review as “full Fourteenth Amendment” review. In addition, the Supreme Court recently decided Bostock v. Clayton County, 590 U.S. __, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020), in which Justice Gorsuch’s majority opinion held, in a federal employment discrimination action, that when an employer takes discriminatory action against an employee based on the employee’s “status” as gay, lesbian, or transgender, the employer is necessarily discriminating against the employee based upon that employee’s “sex.” Id. at __, 140 S. Ct. at 1746, 207 L. Ed. 2d at __. Although this opinion was not decided under the Fourteenth Amendment, we consider Justice Gorsuch’s analysis in order to determine if the definitional holdings related to discrimination “based upon” “sex” should, or must, be 18 M.E. V. T.J. Opinion of the Court applied to Fourteenth Amendment challenges alleging discrimination based on LGBTQ+ status. If so, then allegations of discrimination based on the LGBTQ+ status of an individual are also allegations of discrimination based on the “sex” or “gender” of that person for Fourteenth Amendment purposes, and would require at least “intermediate scrutiny” review, as required in all actions alleging “sex” or “gender” discrimination. In light of the ambiguity surrounding the appropriate test to apply in LGBTQ+ based Fourteenth Amendment cases, we will conduct alternative reviews—pursuant to due process, equal protection, and the full Fourteenth Amendment review we discern from the line of opinions culminating in Obergefell. “‘[A]n alternative holding is not dicta but instead is binding precedent. See, e.g., Massachusetts v. United States, 333 U.S. 611, 623 (1948) (explaining that where a case has “been decided on either of two independent grounds” and “rested as much upon the one determination as the other,” the “adjudication is effective for both”)’” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255–56 (11th Cir. 2017) (citations omitted)). We believe these alternative holdings under the state and federal constitutions are both appropriate and necessary because it is ultimately our Supreme Court that has the authority to definitively decide these issues under the Constitution of North Carolina, State v. Berger, 368 N.C. 633, 638–39, 781 S.E.2d 248, 252 (2016), and it is axiomatic that the United States Supreme Court is the ultimate arbiter of issues raised under the Constitution of the United States. Further, the Supreme Court has 19 M.E. V. T.J. Opinion of the Court regularly rendered opinions basing its holdings finding Fourteenth Amendment violations on both the Due Process Clause and the Equal Protection Clause. A. North Carolina Constitution 1. General Principles The immutable fact when deciding a statutory challenge under the North Carolina Constitution is: “[W]e cannot construe the provisions of the North Carolina Constitution to accord the citizens of North Carolina any lesser rights than those which they are guaranteed by parallel federal provisions in the federal Constitution.” Libertarian Party of N. C. v. State, 200 N.C. App. 323, 332, 688 S.E.2d 700, 707 (2009) (citation omitted), aff’d as modified, 365 N.C. 41, 707 S.E.2d 199 (2011). However, while “the United States Constitution provides a constitutional floor of fundamental rights guaranteed all citizens of the United States, [] the state constitutions frequently give citizens of individual states basic rights in addition to those guaranteed by the United States Constitution.” State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998). The sections of the North Carolina Constitution relevant to this case are found in Article I: Article I, Section 1 establishes that all persons are afforded the “inalienable rights [of] . . . life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” N.C. Const. art. I, § 1. Article I, Section 19 provides, “[n]o person shall be . . . deprived of his life, liberty, or property, but by the law of the land.” N.C. Const. 20 M.E. V. T.J. Opinion of the Court art. I, § 19. “The law of the land, like due process of law, serves to limit the state’s police power to actions which have a real or substantial relation to the public health, morals, order, safety or general welfare.” Hope – A Women’s Cancer Ctr., P.A. v. State, 203 N.C. App. 593, 602–03, 693 S.E.2d 673, 680 (2010) (citation omitted); see also State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949) (citations omitted) (“The term ‘law of the land’ is synonymous with ‘due process of law,’ a phrase appearing in the Federal Constitution and the organic law of many states.”). The protections of the “law of the land” or “due process,” requirements are “‘intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.’” Gunter v. Town of Sanford, 186 N.C. 452, 456, 120 S.E. 41, 43 (1923) (citations omitted). These fundamental guaranties are very broad in scope, and are intended to secure to each person subject to the jurisdiction of the State extensive individual rights, including that of personal liberty. The term “liberty,” as used in these constitutional provisions, does not consist simply of the right to be free from arbitrary physical restraint or servitude, but is “deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. . . . It includes the right of the citizen to be free to use his faculties in all lawful ways[.]” .... An exertion of the police power inevitably results in a limitation of personal liberty, and legislation in this field 21 M.E. V. T.J. Opinion of the Court “is justified only on the theory that the social interest is paramount.” In exercising this power, the legislature must have in view the good of the citizens as a whole rather than the interests of a particular class. Ballance, 229 N.C. at 769, 51 S.E.2d at 734-35 (citations omitted). Concerning the equal protection clause of section 19: [Our Supreme] Court has said that the principle of the equal protection of the law, made explicit in the Fourteenth Amendment to the Constitution of the United States, was also inherent in the Constitution of this State even prior to the revision thereof at the General Election of 1970. . . . . .... [Even when “]the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with . . . an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.” S.S. Kresge Co. v. Davis, 277 N.C. 654, 660–61, 178 S.E.2d 382, 385–86 (1971) (emphasis added) (citations omitted). It is a fundamental obligation of the courts of this state to protect the people from unconstitutional laws, as well as the unconstitutional application of the laws. Id. at 660–61, 178 S.E.2d at 385–86 (emphasis added) (citations omitted) (the “constitutional protection against unreasonable discrimination under color of law” “extends also to the administration and the execution of laws valid on their face”). Article I is construed liberally in this regard: 22 M.E. V. T.J. Opinion of the Court In Trustees of the University of North Carolina v. Foy, 5 N.C. 57 (1805), the Court recognized the supremacy of rights protected in Article I [of the North Carolina Constitution] and indicated that it would only apply the rules of decision derived from the common law and such acts of the legislature that are consistent with the Constitution. . . . . It is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State. Our Constitution is more detailed and specific than the federal Constitution in the protection of the rights of its citizens. . . . . We give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property. Corum v. Univ. of N.C. Through Bd. of Governors, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992) (emphasis added) (citations omitted). The police powers of the State, though broad, are limited by constitutional guarantees. “In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offence or manifest evil, or the preservation of the public health, safety, morals, or general welfare, and that there is some clear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do, in some plain, appreciable, and appropriate manner, tend towards the accomplishment of the object for which the power is exercised.” 23 M.E. V. T.J. Opinion of the Court State v. Williams, 146 N.C. 618, 627, 61 S.E. 61, 64 (1908) (emphasis added) (citations omitted). When no fundamental rights or protected classes of people are involved, the courts apply the following test: If a statute is to be sustained as a legitimate exercise of the police power, it must have a rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare. In brief, it must be reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm. Ballance, 229 N.C. at 769–70, 51 S.E.2d at 735 (emphasis added) (citations omitted). Certain restrictions on constitutional rights, such as ones based on “sex” or gender, require “intermediate scrutiny”: “Articulations of intermediate scrutiny vary depending on context, but tend to require an important or substantial government interest, a direct relationship between the regulation and the interest, and regulation no more restrictive than necessary to achieve that interest.” State v. Packingham, 368 N.C. 380, 387, 777 S.E.2d 738, 745 (2015) (citation omitted), rev’d on other grounds, North Carolina v. Packingham, ___ U.S. ___, 198 L. Ed. 2d 273 (2017). However: “‘[A] law which burdens certain explicit or implied fundamental rights must be strictly scrutinized. It may be justified only by a compelling state interest, and must be narrowly drawn to express only the legitimate interests at stake.’” Libertarian Party, 200 N.C. App. at 332, 688 S.E.2d at 707 (citation omitted). 24 M.E. V. T.J. Opinion of the Court As our Supreme Court has recognized, the “liberty” protected by our constitution includes the right to live as one chooses, within the law,4 unmolested by unnecessary State intrusion into one’s privacy, or attacks upon one’s dignity. Tully v. City of Wilmington, 370 N.C. 527, 534, 810 S.E.2d 208, 214 (2018) (citation omitted) (“The basic constitutional principle of personal liberty and freedom embraces the right of the individual to be free to enjoy the faculties with which he has been endowed[.] This precept emphasizes the dignity, integrity and liberty of the individual, the primary concern of our democracy.”). 2. Application to Plaintiff’s Appeal After Obergefell, and other precedent of the Supreme Court, there is no longer any doubt that any two consenting adults have a fundamental right to marry each other—absent fraud impacting a legitimate government interest. As far as romantic relationships are concerned, 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. Therefore, there can be no State interest in interfering with Plaintiff’s liberty to date whomever she wants to date, or to interfere with Plaintiff’s private and intimate choices related to dating another consenting adult. Under the North Carolina Constitution, Plaintiff is similarly situated with every other adult in this regard. 4 Meaning valid, constitutional laws. 25 M.E. V. T.J. Opinion of the Court The minimum level of review for Plaintiff’s state constitutional challenges is that required by the Constitution of the United States, which we hold below is at least intermediate scrutiny. Therefore, N.C.G.S. § 50B-1(b)(6) can only survive Plaintiff’s as-applied challenge if the State proves, at a minimum, (1) that the statute protects an “important or substantial government interest,”, (2) that the statute’s requirements have a “direct relationship between the regulation and the interest [the State seeks to protect],” and (3) that the “regulation [is] no more restrictive than necessary to achieve that interest.” Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C. 289, 298, 749 S.E.2d 429, 436 (2012) (citation omitted). The State cannot meet its burden in this case. “‘The best indicia of [legislative] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.’” State v. Byrd, 185 N.C. App. 597, 603, 649 S.E.2d 444, 449 (2007) (citation omitted), rev’d on other grounds, 363 N.C. 214, 675 S.E.2d 323 (2009). “It is without question that the language of the statute, the spirit of Section 50B, and what [it] seeks to accomplish is to protect individuals from domestic violence through, inter alia, the imposition of an enhanced sentencing to serve as a deterrent against those who perpetrate the violence.” Id. We can conceive of no scenario in which denying the protections of a DVPO to victims of domestic violence perpetrated by a same-sex partner furthers the “intent” of Chapter 50B, nor “what [it] seeks to accomplish”—reduction in domestic 26 M.E. V. T.J. Opinion of the Court violence. Id. The requirement in N.C.G.S. § 50B-1(b)(6) that Plaintiff’s complaint for a DVPO be denied solely based upon the “same-sex” nature of her relationship serves no government interest, much less any “important or substantial government interest.” Hest Techs., 366 N.C. at 298, 749 S.E.2d at 436. As applied to Plaintiff, the “regulation” involved, N.C.G.S. § 50B-1(b)(6), is in direct conflict with the purposes of the Act. Also, the “regulation,” along with serving no “important,” “substantial,” or even legitimate government interest, is highly restrictive—it constitutes a total and complete ban on Plaintiff, and those similarly situated, obtaining DVPO protections against those who desire to do them harm. There is no question but that, as applied to Plaintiff, N.C.G.S. § 50B-1(b)(6) fails strict scrutiny, and violates both the due process clause—substantive and procedural, and the equal protection clause, of art. I, § 19, and the State, in its amicus brief, does not make any such argument—it argues the Act was unconstitutional as applied to Plaintiff and those similarly situated. Even had the State desired to make such an argument, N.C.G.S. § 50B-1(b)(6) cannot survive even the lowest level of scrutiny. Absent any legitimate State interest, the statute is not “a legitimate exercise of the police power”; there is no “rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare”; and there is no scenario where it could be considered “reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm.” Ballance, 229 N.C. at 769–70, 51 S.E.2d at 735 (citations omitted). Instead, 27 M.E. V. T.J. Opinion of the Court N.C.G.S. § 50B-1(b)(6), by denying Plaintiff and similarly situated people the protections it provides victims of domestic violence in “opposite-sex” dating relationships, runs directly counter to the promotion of the public good, welfare, morals, safety, and any other legitimate public interests of the State. We hold, pursuant to the North Carolina Constitution, that N.C.G.S. § 50B- 1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated. See Dunn v. Pate, 334 N.C. 115, 123, 431 S.E.2d 178, 183 (1993) (“Plaintiffs have offered no argument as to what significant governmental interests, if any, were served by this gender-based distinction . . . and we will not speculate as to what those interests may have been. Since the . . . statutes at issue required unequal application of the law while serving no clearly discernable important governmental interest, they were unconstitutional . . . and will not [] be enforced by this Court.”). B. The Fourteenth Amendment 1. Text and Purpose The first clause, the Privileges and Immunities Clause, prohibits differential treatment of any citizen of the United States based upon their present or former state citizenship. It also lays the foundational principle upon which the Due Process Clause and the Equal Protection Clause are premised—United States citizenship stands as a guarantee against the abridgement, by state action, of certain “privileges and immunities” that are fundamental rights of every United States citizen. Id. 28 M.E. V. T.J. Opinion of the Court It is the duty of this Court, like every court, to ensure the “privileges and immunities” referenced in the Fourteenth Amendment—which include the guarantee that all individual rights recognized in the Bill of Rights, as well as all other “fundamental rights” recognized as such in the Constitution and common law—are available to every citizen of our nation, and that all such persons, regardless of any other “statuses” that might be applied to them, receive equal privilege and protection under the law as those similarly situated. The Supreme Court’s recent decisions involving laws discriminating against “same-sex” individuals rely, in part, on the dissent from the Civil Rights Cases, decided shortly after ratification of the Fourteenth Amendment. The dissenting opinion recognized that the particular “status” of an individual, or “classifications” of particular groups of people to which an individual may be deemed a member, were generally irrelevant when considering the individual’s rights under the Fourteenth Amendment, and whether any of these rights had been violated. Civil Rights Cases, 109 U.S. 3, 29–30, 27 L. Ed. 835, 845 (1883) (Harlan, J., dissenting). The only status generally relevant to an individual’s right to the full panoply of privileges, immunities, and protections guaranteed by the Constitution is that of citizen.5 2. Due Process 5 When a citizen is similarly situated to others to whom a particular law applies. 29 M.E. V. T.J. Opinion of the Court “[T]he Due Process Clause, like its forebear in the Magna Carta, was intended to secure the individual from the arbitrary exercise of the powers of government[,]” Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed. 2d 662, 668 (1986) (citations and quotation marks omitted), and it “furnishes a guaranty against any encroachment by the State on the fundamental rights belonging to every citizen.” Sale v. State Highway & Pub. Works Comm’n, 242 N.C. 612, 617, 89 S.E.2d 290, 295 (1955) (emphasis added) (citation omitted). Of course, the State can pass and enforce laws that impact the fundamental rights of certain groups of people, when done constitutionally: The police power of the State extends to all the compelling needs of the public health, safety, morals and general welfare. Likewise, the liberty protected by the Due Process . . . Clause[] of the Federal . . . Constitution[] extends to all fundamental rights of the individual. It is the function of the courts to establish the location of the dividing line between the two by the process of locating many separate points on either side of the line. State v. Dobbins, 277 N.C. 484, 497, 178 S.E.2d 449, 457 (1971). There are two interests protected by the Due Process Clause: Due process has come to provide two types of protection for individuals against improper governmental action, substantive and procedural due process. State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998). Substantive due process ensures that the government does not engage in conduct that “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952), or hinder rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937). In the event that 30 M.E. V. T.J. Opinion of the Court the legislation in question meets the requirements of substantive due process, procedural due process “ensures that when government action deprive[s] a person of life, liberty, or property . . . that action is implemented in a fair manner.” Thompson, 349 N.C. at 491, 508 S.E.2d at 282. State v. Bryant, 359 N.C. 554, 563–64, 614 S.E.2d 479, 485 (2005) (citations omitted). Certain violations of substantive due process are so substantial that no procedure is sufficient to remedy the violation and, therefore, procedural due process analysis is not required to find the state action in question unconstitutional. Lesser violations of substantive due process require procedural due process analysis to determine whether the interests of the state advanced by its action, along with the procedural safeguards included in the state action, are sufficient to survive due process analysis. As recognized by our Supreme Court: That there is a limit to the police power which the courts must, when called upon in a judicial proceeding, ascertain and declare is as well settled as the existence of the power itself. . . . . “It does not at all follow that every statute enacted ostensibly for the promotion of [the public good] is to be accepted as a legitimate exercise of the police power of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. . . . . If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to these objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts so to adjudge and thereby give effect to the Constitution.” Williams, 146 N.C. at 627, 61 S.E. at 64 (emphasis added) (citations omitted). We review substantive and procedural due process in turn. 31 M.E. V. T.J. Opinion of the Court a. Substantive Due Process “‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’” Lawrence v. Texas, 539 U.S. 558, 578, 156 L. Ed. 2d 508, 526 (2003) (citation omitted). The Due Process Clause “furnishes a guaranty against any encroachment by the State on the fundamental rights belonging to every citizen.” Sale, 242 N.C. at 617, 89 S.E.2d at 295 (emphasis added) (citation omitted). When state action is alleged to abridge recognized personal rights fundamental to every individual, or when it is alleged to intrude upon constitutionally recognized liberty interests by targeting certain “categories” or “classes” of individuals, substantive due process review is required. If state action unduly encroaches on “fundamental personal rights,” whether of an individual or a “class” of people, then strict scrutiny review applies. Clayton v. Branson, 170 N.C. App. 438, 455, 613 S.E.2d 259, 271 (2005) (citations omitted); Lawrence, 539 U.S. at 577–79, 156 L. Ed. 2d at 525–26 (substantive due process prohibits state proscription of the liberty rights of members of a particular group—a “suspect class”—based on animus or historical acceptance of discrimination against the class). Under strict scrutiny review, “‘the party seeking to apply the law must demonstrate that it serves a compelling state interest.’” State v. Fowler, 197 N.C. App. 1, 21, 676 S.E.2d 523, 540– 41 (2009) (emphasis added) (citation omitted); Clayton, 170 N.C. App. at 455, 613 S.E.2d at 271. 32 M.E. V. T.J. Opinion of the Court However, “‘[i]f the right infringed upon is not fundamental in the constitutional sense, the party seeking to apply it need only meet the traditional test of establishing that the law is rationally related to a legitimate state interest.’” Fowler, 197 N.C. App. at 21, 676 S.E.2d at 540–41 (emphasis added) (citation omitted); Clayton, 170 N.C. App. at 455, 613 S.E.2d at 271 (citations and quotation marks omitted) (explaining that, “[u]nless legislation involves a suspect classification or impinges upon fundamental personal rights, . . . the mere rationality standard applies and the law in question will be upheld if it has any conceivable rational basis”). When fundamental rights are abridged by state action, the state’s interest must be weighed against the intrusion into those rights—factoring the nature of the fundamental right as well as the extent of the “intrusion.” See, e.g., Dobbins, 277 N.C. at 499, 178 S.E.2d at 457–58 (“the right to travel on the public streets is a fundamental segment of liberty and, of course, the absolute prohibition of such travel requires substantially more justification than the regulation of it by traffic lights and rules of the road”); Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523 (citing Romer v. Evans, 517 U.S. 620, 624, 634, 134 L. Ed. 2d 855, 861(2003)) (“Romer invalidated an amendment to Colorado’s Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by ‘orientation, conduct, practices or relationships,’ and deprived them of protection under state antidiscrimination laws. We concluded that the provision was ‘born of animosity toward the class of persons 33 M.E. V. T.J. Opinion of the Court affected’ and further that it had no rational relation to a legitimate governmental purpose.” (citing Romer v. Evans, 517 U.S. 620, 624, 634, 134 L. Ed. 2d 855, 861(2003))). Pursuant to precedent set by the Supreme Court, substantive due process prohibits state proscription of the liberty rights of members of a particular group—a suspect class—when it is based on animus towards the class, or historical acceptance of discrimination against the class. Lawrence, 539 U.S. at 575–79, 156 L. Ed. 2d at 523–26 (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”). Substantive due process therefore prohibits a state from arbitrarily deciding which “classes” of people may enjoy the constitutional protections of recognized fundamental rights and which “classes” may be excluded. For example: [In United States v. Windsor, 570 U.S. 744, 186 L. Ed. 2d 808 (2013), the Supreme Court’s] concern sprung from [the] creation of two classes of married couples within states that had legalized same-sex marriage: opposite-sex couples, whose marriages the federal government recognized, and same-sex couples, whose marriages the federal government ignored. The resulting injury to same- sex couples served as the foundation for the Court’s conclusion that [the Defense of Marriage Act] violated the Fifth Amendment’s Due Process Clause.” Bostic v. Schaefer, 760 F.3d 352, 378 (4th Cir. 2014). This Court, like the Supreme Court in Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523, considers the Court’s equal 34 M.E. V. T.J. Opinion of the Court protection analysis in Romer in our substantive due process analysis. The Court in Romer noted: [The challenged law] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for [the law] is itself instructive; ‘[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” Romer, 517 U.S. at 633, 134 L. Ed. 2d at 866 (citation omitted). b. Procedural Due Process “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ . . . interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 31 (1976). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333, 47 L. Ed. 2d at 32 (citation omitted). “‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires 35 M.E. V. T.J. Opinion of the Court consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 334–35, 47 L. Ed. 2d at 33 (citations omitted). c. Application to Plaintiff’s Appeal We first determine whether, by denying Plaintiff a DVPO based upon the nature of the relationship she had with the Defendant, any fundamental rights of Plaintiff’s were abridged. Plaintiff, like everyone, enjoys a fundamental right to personal safety: The liberty preserved from deprivation without due process include[s] the right “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security. Ingraham v. Wright, 430 U.S. 651, 673, 51 L. Ed. 2d 711, 731 (1977) (emphasis added) (citations omitted). “The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 n.3, 103 L. Ed. 2d 249, 259 n.3 (1989) (emphasis added) (citation omitted); see also Kennedy v. 36 M.E. V. T.J. Opinion of the Court City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (“It is well established that the Constitution protects a citizen’s liberty interest in her own bodily security. It is also well established that, although the state’s failure to protect an individual against private violence does not generally violate the guarantee of due process, it can where the state action ‘affirmatively place[s] the plaintiff in a position of danger,’ that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced.” (citations omitted)). Plaintiff had the same constitutional right under the Fourteenth Amendment to seek love or companionship with another woman as she would have had to seek such a relationship with a man. Her liberty rights were identical to those of any other woman seeking a dating relationship with a man. Plaintiff’s constitutional rights to liberty, privacy, and intimacy in her relationship with Defendant were identical in every way to those of any other woman in an “opposite sex” relationship. Plaintiff would have had the fundamental right to marry Defendant; just as she had the fundamental liberty right to decide to end her relationship with Defendant. However, pursuant to N.C.G.S. § 50B-1(b)(6), Plaintiff, and those similarly situated, are intentionally denied, by the State, the same protections against the domestic violence that may occur after a “break-up,” or for any other “reason” one person decides to intentionally injure another. 37 M.E. V. T.J. Opinion of the Court The State, through its legislation, has subjected 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.6 By its plain language, N.C.G.S. § 50B-1(b)(6) creates a class of persons singled out for exposure to a heightened risk of “fear of imminent serious bodily injury or continued harassment,” as well as “intentionally caus[ed] bodily injury.” N.C.G.S. §§ 50B-1(a)(1)-(2). The class of excluded, or potentially excluded, persons is that class of people who are identified as members of the LGBTQ+ community, whether by self- identification or by statutory definition. The factors most commonly used in identifying members of the LGBTQ+ class are sexual orientation and gender identity—though we do not mean to suggest these two classifications, which are themselves made up of people whose “sexual” and “gender” “identities” express great diversity, are meant to approach a full definition of the LGBTQ+ “class,” or its “members.” However, because the courts are required to classify people based upon the plain language of the statute, the Act requires the courts to intrude into the private lives of petitioners in order to know whether it must tell an abused person that Chapter 50B protections cannot be provided—because the State has determined 6 We again note that the State, through the executive branch, argues in favor of Plaintiff, and a ruling requiring all persons, including those in the LGBTQ+ community, equal access to the full protections offered in Chapter 50B. However, only the General Assembly can amend the statutes. 38 M.E. V. T.J. Opinion of the Court they are not entitled to the same protections granted to similarly situated “opposite- sex” petitioners. A judicial inquiry and experience that may be, for many, an unwanted intrusion into their private lives that could lead to harmful consequences. N.C.G.S. § 50B-1(b)(6) imposes a statutory requirement that the trial court conduct this invasive inquiry, and the inquiry itself can result in emotional and psychological harm to the petitioners—and under the Act the outcome must always result in denial of the requested DVPO. In this case, based on her allegations, Plaintiff, after having been physically assaulted, having been accosted on her property, having had the sanctity of her home invaded, and having been harassed, was seeking protections the State affords solely to a single class of people—one comprised of those whose personal identity includes romantic attraction to people of the opposite sex.7 Further, Plaintiff could have obtained a DVPO if she and Defendant had cohabitated, if they were married, or had joint custody of a child. Plaintiff’s right of personal security, like everyone’s, is fundamental, yet the State has denied her protective services it affords others based entirely on her LGBTQ+ status. It is solely this status that led the trial court to believe it lacked the jurisdiction to grant Plaintiff a DVPO. The Act’s denial of Plaintiff’s right to security 7 And whose requests for protection under the act are based on alleged injury resulting from an “opposite sex” “dating relationship.” 39 M.E. V. T.J. Opinion of the Court placed her in a position that “expose[d] [her] to a danger which . . . she would not have otherwise faced.” Kennedy, 439 F.3d at 1061 (citation omitted). The Supreme Court has also recognized a general fundamental liberty right to personal “autonomy,” “identity,” and “dignity”: “The fundamental liberties protected by [the Due Process] Clause include most of the rights enumerated in the Bill of Rights. In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell, 576 U.S. at 663, 192 L. Ed. 2d at 623 (citations omitted). The Supreme Court recognizes that some of the most important and fundamental choices involving protected “liberties” are those involving personal and intimate unions with others. Id. at 665–66, 192 L. Ed. 2d at 624. Though these choices may lead to marriage, it is not necessary that they reach that point before they become constitutionally fundamental. Id. (emphasis added) (citation omitted) (“Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.”). The Court has stated: In explaining the respect the Constitution demands for the autonomy of the person in making these [very personal] choices, we stated as follows: “These matters, involving the most intimate and personal choices a person may make in a lifetime, 40 M.E. V. T.J. Opinion of the Court choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523 (emphasis added) (citation omitted). Plaintiff has a right to the liberty to pursue her “own concept of existence” and the other “myster[ies] of human life” with the same autonomy, dignity and security as any other person in her situation. This pursuit will undeniably be impacted by the choices she makes regarding romantic or intimate partners. This right, “central to personal dignity and autonomy,” is fundamental, and should not be interfered with by the State. By telling Plaintiff that her existence is not as valuable as that of individuals who engage in “opposite-sex” relationships, the State is not just needlessly endangering Plaintiff, it is expressing State-sanctioned animus toward her. Adopting the reasoning and analysis of the Court in Windsor, we hold: [T]hough [the General Assembly] has great authority to design laws to fit its own conception of sound . . . policy, it cannot deny the liberty protected by the Due Process Clause[.] What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of [N.C.G.S. § 50B-1(b)(6) is] to demean 41 M.E. V. T.J. Opinion of the Court those persons who are in a lawful [dating relationship that turns violent]. This requires the Court to hold, as it now does, that [N.C.G.S. § 50B-1(b)(6), as applied,] is unconstitutional as a deprivation of the liberty of the person protected by the [Fourteenth] Amendment of the Constitution. Windsor, 570 U.S. at 774, 186 L. Ed. 2d at 829–30. 3. Equal Protection a. General Principles “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 320 (1985) (citation omitted). The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Romer, 517 U.S. at 631, 134 L. Ed. 2d at 865 (emphasis added) (citations omitted). Further, the State must respect “the principle that government and each of its parts remain open on impartial terms to all who seek its assistance: 42 M.E. V. T.J. Opinion of the Court “‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’” Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’” Romer, 517 U.S. at 633–34, 134 L. Ed. 2d at 866–67 (citations omitted). At a minimum, the state cannot make a statutory classification of people in order “to make them unequal to everyone else. . . . . A State cannot so deem a class of persons a stranger to its laws.” Romer, 517 U.S. at 635, 134 L. Ed. 2d at 868. “‘[A] classification cannot be made arbitrarily[.]’ . . . . ‘[A]rbitrary selection can never be justified by calling it classification.’” McLaughlin v. Florida, 379 U.S. 184, 190, 13 L. Ed. 2d 222, 227 (1964) (citations omitted). Finally, “[j]udicial inquiry under the Equal Protection Clause . . . does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose[.]” Id. at 191, 13 L. Ed. 2d at 228. Pursuant to the generally applied approach: Our analysis of the Opponents’ Fourteenth Amendment claims has two components. First, we ascertain what level of constitutional scrutiny applies: either rational basis review or some form of heightened scrutiny, such as strict scrutiny. Second, we apply the appropriate level of 43 M.E. V. T.J. Opinion of the Court scrutiny to determine whether the . . . [l]aws pass constitutional muster. Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny. Glucksberg, 521 U.S. 702, 719–20; Zablocki, 434 U.S. 374, 383. We therefore begin by assessing whether the . . . [l]aws infringe on a fundamental right. Fundamental rights spring from the Fourteenth Amendment’s protection of individual liberty, which the Supreme Court has described as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Casey, 505 U.S. 833, 851. Bostic, 760 F.3d at 375 (citations omitted). Strict scrutiny also applies “when a regulation classifies persons on the basis of certain designated suspect characteristics[.]” Dep’t of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207 (2001) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16–17, 36 L. Ed. 2d 16, 33 (1973); Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142, 149 (1980)). If a regulation receives strict scrutiny, then the state must prove that the classification is necessary to advance a compelling government interest; otherwise, the statute is invalid. San Antonio, 411 U.S. at 16–17. Other classifications, including gender and illegitimacy, trigger intermediate scrutiny, which requires the state to prove that the regulation is substantially related to an important government interest. Clark v. Jeter, 486 U.S. 456471 (1988); Craig v. Boren, 429 U.S. 190407 (1976). If a regulation draws any other classification, it receives only rational-basis scrutiny, and the party challenging the regulation must show that it bears no rational relationship to any legitimate government interest. If the party cannot 44 M.E. V. T.J. Opinion of the Court so prove, the regulation is valid. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); Texfi, 301 N.C. at 11. Rowe, 353 N.C. at 675, 549 S.E.2d at 207 (citations omitted). b. Application to Plaintiff’s Appeal The core of the Equal Protection Clause is the principle that “all persons similarly circumstanced shall be treated alike.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37, 72 L. Ed. 770, 774 (1928) (citations and quotation marks omitted). As noted, “generally [ ] the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances, and that it applies to the exercise of all the powers of the state which can affect the individual[.]” Id. “[C]lassifications affecting fundamental rights are given the most exacting scrutiny.” Clark, 486 U.S. at 461, 100 L. Ed. 2d at 471 (citations omitted). We have held above that Plaintiff has a fundamental right to liberty, which includes the right to personal security, dignity and “‘the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’ Casey, 505 U.S. 833, 851.” Bostic, 760 F.3d at 375 (citation omitted). Therefore, we hold Plaintiff’s as- applied challenge to the Act must be reviewed under strict scrutiny. The only thing preventing Plaintiff from being similarly situated to an “opposite-sex” person in a former “dating relationship” is the statute itself—N.C.G.S. § 50B-1(b)(6). Plaintiff’s LGBTQ+ status is a “mere difference” between her and a woman in an “opposite-sex” “dating relationship,” and this status “is not enough” to 45 M.E. V. T.J. Opinion of the Court justify the injury the State is perpetrating on Plaintiff. Coleman, 277 U.S. at 37, 72 L. Ed. at 774 (citations omitted). The statute only serves to promote both the frequency and severity of domestic violence, in a targeted group that is, pursuant to the Constitution of the United States, in no legally cognizable or relevant manner different from the group identified by N.C.G.S. § 50B-1 as persons who are, or have been, in a “dating relationship” with a person of the “opposite-sex” and, therefore, permitted the protections of a DVPO by N.C.G.S. § 50B-1(b)(6). The “opposite-sex” distinction limiting the protections of N.C.G.S. § 50B-1(b)(6) was “made arbitrarily,” and so remains, and N.C.G.S. § 50B-1(b)(6) bears no “reasonable” nor “just relation to [Chapter 50B] in respect to which the classification is proposed[.]” Coleman, 277 U.S. at 37, 72 L. Ed. at 774 (citations and quotation marks omitted). N.C.G.S. § 50B- 1(b)(6) “is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer, 517 U.S. at 635, 134 L. Ed. 2d at 868. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633, 134 L. Ed. 2d at 867 (emphasis added) (citations omitted). Because the State has provided Chapter 50B protections to the “majority” of persons in “dating relationships,” it cannot deny them to a “minority” without surviving strict 46 M.E. V. T.J. Opinion of the Court scrutiny review—which it cannot do. DeShaney, 489 U.S. at 197 n.3, 103 L. Ed. 2d at 259 n.3 (citation omitted) (“The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.”). We further hold that N.C.G.S. § 50B-1(b)(6), as applied to Plaintiff and those similarly situated, cannot withstand even “rational basis” review and, therefore, it would also fail “intermediate scrutiny.” There is simply no rational basis that could support this law, in part because there is no cognizable government interest that N.C.G.S. § 50B-1(b)(6) could serve to protect as applied in Plaintiff’s case. 4. Review in Cases Alleging State Action Targeted at LGBTQ+ Status Seventeen years after the Supreme Court upheld a Georgia statute outlawing certain sex acts associated with same-sex relationships in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), the Court overruled Bowers in Lawrence, later noting that “Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation.” Obergefell, 576 U.S. at 678, 192 L. Ed. 2d at 633. Lawrence relied heavily on two cases the Court had decided after Bowers, one based on due process grounds and the other on equal protection grounds: Two principal cases decided after Bowers cast its holding into . . . doubt. In Planned Parenthood [] v. Casey, [] the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to 47 M.E. V. T.J. Opinion of the Court marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans. There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Lawrence, 539 U.S. at 573–74, 156 L. Ed. 2d at 522–23 (citations omitted). In Casey, the Supreme Court stated in plain terms that the “liberties” protected by the Fourteenth Amendment have, and will continue to, evolve as society evolves: 48 M.E. V. T.J. Opinion of the Court The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . . The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound.” Casey, 505 U.S. at 849–50, 120 L. Ed. 2d at 697 (citations omitted). In Romer, the Supreme Court considered of the Colorado amendment, and decided: “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” It was this specific targeting of people of LGBTQ+ status for 49 M.E. V. T.J. Opinion of the Court discriminatory treatment by the state that the Court found unacceptable and in direct contradiction to the guarantees of the Fourteenth Amendment: Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’” Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’” Romer, 517 U.S. at 633–34, 134 L. Ed. 2d at 866–67 (citations omitted). The Court recognized the particular harm that is done when state discrimination is directed against a classification of people who are, and have historically been, subjected to societal animus. “[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 634, 134 L. Ed. 2d at 867 (emphasis added) (citation omitted). The Supreme Court recognized, in Lawrence, that its test for determining the constitutionality of allegedly discriminatory state action against a minority group included, as justification for upholding the challenged action, the fact that discrimination and animus directed at the targeted minority group had been considered acceptable and appropriate by the “majority” for some historically 50 M.E. V. T.J. Opinion of the Court “significant” period of time. Lawrence, 539 U.S. at 567, 156 L. Ed. 2d at 518. The Court held this kind of judicial review—one that considered as the basis for upholding discriminatory state action the fact that such discrimination not only existed in reality, but was approved of by a majority of the populace, based upon “historical” and ongoing animus toward the group targeted by the state action—was violative of both the spirit and the constitutional requirements of the Fourteenth Amendment. Id.; see also Obergefell, 576 U.S. at 671–72, 192 L. Ed. 2d at 628. This truth was further recognized by the Court in Windsor, as well as that the fundamental right of “liberty” includes personal “dignity” and “integrity”—the right to make intimate decisions and live one’s life in a manner that is true to oneself without unwarranted interference or judgment backed by the laws of the state: By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. Windsor, 570 U.S. at 769, 186 L. Ed. 2d at 826–27 (citation omitted). 51 M.E. V. T.J. Opinion of the Court In considering a Fourth Amendment challenge to the Defense of Marriage Act (“DOMA”), the Court in Windsor, following Romer, conducted a review that was, in large part, “animus”-based review: DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 2692 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. Id. at 769–70, 186 L. Ed. 2d at 827 (emphasis added) (citations omitted); see also id. at 772, 186 L. Ed. 2d at 828 (citations omitted) (“By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. . . . . The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship [New York] State has sought to dignify.”). “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality[.]” Windsor, 570 U.S. at 772, 186 L. Ed. 2d at 828. “Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.” Id. “[T]hough Congress has great authority to design 52 M.E. V. T.J. Opinion of the Court laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment”—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.” Id. at 774, 186 L. Ed. 2d at 829, 830. “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Id. at 774, 186 L. Ed. 2d at 829–30 (emphasis added). In Obergefell, the Court finally held what its opinions in Romer, Lawrence, and Windsor had been trending toward—that the fundamental right to marry attaches to all people, and it is a violation of the Fourteenth Amendment for the state to deprive a person of this fundamental right based solely on who they love and choose to marry. The state cannot deny someone in the LGBTQ+ community the benefit of a constitutionally protected right based solely on that person’s LGBTQ+ status.8 The 8 And though there may be some particular set of facts that could survive Fifth or Fourteenth Amendment review for such a law, we do not doubt that such a law, and set of facts, would be the rare exception. 53 M.E. V. T.J. Opinion of the Court Court, building on Romer, Lawrence, and Windsor, recognized what, in retrospect, was obvious—discrimination, whether newly minted or historically accepted, cannot be the very justification for upholding the law challenged as discriminatory. Obergefell, 576 U.S. at 665, 192 L. Ed. 2d at 624–25; id. at 671–72, 192 L. Ed. 2d at 628. The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” . . . . History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present. The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. Id. at 663–64, 192 L. Ed. 2d at 623–24 (emphasis added) (citations omitted). If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving, 388 U.S. 1, 12; Lawrence, 539 U.S. at 566–67. 54 M.E. V. T.J. Opinion of the Court The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. . . . . [W]hen [a] sincere, personal opposition [to same-sex marriage based on “religious or philosophical premises,”] becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right. Id. at 671–72, 192 L. Ed. 2d at 628–29 (emphasis added) (citations omitted). The Court’s opinion in Obergefell establishes that legislation targeting the rights of those in the LGBTQ+ community is subject to something greater than “rational basis” review.9 The Court in Obergefell highlighted the interconnected role of the Due Process Clause’s “liberty” guarantees and the right to “equal protection under the law” guaranteed by the Equal Protection Clause, held that the protections of the Fourteenth Amendment apply equally to LGBTQ+ and non-LGBTQ+ persons, and gave particular attention to the injuries inflicted by laws targeting LGBTQ+ persons for unequal treatment. Obergefell, 576 U.S. at 671–76, 192 L. Ed. 2d at 628– 31. The Court concluded: It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged 9 The words “rational basis,” “intermediate scrutiny,” “strict scrutiny,” “test,” and “review” do not occur in the opinion within any context related to the review conducted by the Court based on the facts before it. 55 M.E. V. T.J. Opinion of the Court that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. Id. at 675, 192 L. Ed. 2d at 631 (citations omitted). The Court then held “that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Id. at 675–76, 192 L. Ed. 2d at 631. The Court in Obergefell, as it did in Romer, Lawrence, and Windsor, was clearly operating pursuant to this principle as it 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. Id. at 675, 192 L. Ed. 2d at 631 (citation omitted) (“Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State ‘cannot demean their existence or control their destiny by making their private sexual conduct a crime.’”); id., at 675, 192 L. Ed. 2d at 631. The resulting standard, which must be applied in light of the particular facts of the case under review, is based upon both the Due Process and Equal Protection 56 M.E. V. T.J. Opinion of the Court Clauses, incorporating both the due process concept of fundamental “liberty” and the equal protection “disparate treatment” review—what we, above, have called “full Fourteenth Amendment” review.10 See Lawrence, 539 U.S. at 575, 156 L. Ed. 2d at 523 (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”). “In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.” Obergefell, 576 U.S. at 672, 192 L. Ed. 2d at 629 (citations omitted). The Court noted that review based upon the interrelationship between both clauses was not a novel proposition. Id. at 674, 192 L. Ed. 2d at 630–31. This full Fourteenth Amendment review clearly requires the government to prove more than is required by the “rational basis” test, though the Court has not named or defined the appropriate “test” that should be applied in cases of this nature. We believe this omission was intentional, and that, in the cases culminating in Obergefell, the full Fourteenth Amendment review applied by the Court is a more comprehensive review that does not readily fit within the “rational basis,” “intermediate scrutiny,” or “strict scrutiny” triad. 10 We recognize that these cases were neither brought nor decided pursuant to the first clause of section 1 of the Fourteenth Amendment, the Privileges and Immunities Clause. 57 M.E. V. T.J. Opinion of the Court Instead, the Court has focused on (1) the clear intent of the government in passing challenged laws as part of its review, as the clear intent may “belie any legitimate justifications that may be claimed for” the laws, Romer, 517 U.S. at 635, 134 L. Ed. 2d at 867; id. at 634–35, 134 L. Ed. 2d at 867 (citation omitted) (“‘[I]f the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’”); (2) the additional impact when majority “opposition becomes enacted law and public policy” and “the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied[,]” Obergefell, 576 U.S. at 672, 192 L. Ed. 2d at 629; and (3) the particular harms the laws inflicted on same-sex individuals, couples, and families: “Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them[,]” id. at 675, 192 L. Ed. 2d at 631; id. at 668, 192 L. Ed. 2d at 627 (explaining “children suffer the stigma of knowing their families are somehow lesser” as a result of such laws). Pursuant to Romer, Lawrence, Windsor, and Obergefell, this Court must “dr[a]w upon principles of liberty and equality to define and protect the rights of gays and lesbians,” and insure “the State ‘[does not] demean their existence or control their 58 M.E. V. T.J. Opinion of the Court destiny’” through legislation that “impos[es] . . . disabilit[ies] on gays and lesbians serv[ing] to disrespect and subordinate them[,]” id. at 675, 192 L. Ed. 2d at 631; “impose[s] stigma and injury of the kind prohibited by our basic charter[,]” id. at 670– 71, 192 L. Ed. 2d at 628; or constitutes an “unjustified infringement [upon their] fundamental right[s,]” id. at 675, 192 L. Ed. 2d at 631 (citations omitted). From our review, we hold that Obergefell counsels, in relevant part, the following: (1) Laws that serve to deny members of the LGBTQ+ community rights afforded to non-LGBTQ+ individuals are highly suspect, and a reviewing court must consider a number of factors that will weigh against the constitutionality of such a law; among these factors (2) the reviewing court must consider the actual intent of the state in enacting the law, if possible—whether indicated by its plain language, consideration of the law’s real-world impact, through historical and legislative review including the failure to amend a law that is unnecessarily discriminatory in fact;11 (3) the court must consider the particular harms suffered by LGBTQ+ persons when the State denies them equal rights to liberty and access to the law based on their LGBTQ+ status; (4) the court must factor that the particular harms suffered are 11 Neither the government’s stated intent—unless determined to be the same as its actual intent, nor any hypothetically conceivable legitimate purpose, shall serve to mitigate the weight given to the harm that results when “the imprimatur of the State itself on an exclusion[ary law] . . . demeans or stigmatizes those whose own liberty is then denied.” Obergefell, 576 U.S. at 672, 192 L. Ed. 2d at 629; see also Lawrence, 539 U.S. at 580, 156 L. Ed. 2d at 526–27 (citations omitted) (“We have consistently held . . . that some objectives, such as ‘a bare . . . desire to harm a politically unpopular group,’ are not legitimate state interests. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”). 59 M.E. V. T.J. Opinion of the Court based in part on “a long history of disapproval of the[] relationships” between LGBTQ+ persons, id. at 675, 192 L. Ed. 2d at 631; (5) the court must assess the injury that occurs when official State action, which singles out members of the LGBTQ+ community for the denial of rights afforded non-LGBTQ+ persons—including that such action imposes a state-sanctioned “stigma” upon LGBTQ+ individuals which “diminishes” them, “demeans their existence,” interferes with their “autonomy” and “control of their destiny,” impugns their “dignity,” and serves to unfairly call into question their rightful place as equal members of society—as equal “citizens,” id. at, 670–71, 675, 192 L. Ed. 2d at 628, 631 (citations omitted). These factors must be weighed against whatever legitimate interest is advanced by the challenged action, considering the context and particular facts involved. The Court in Obergefell emphasized the importance of the principle that “‘[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power[,]” id. at 677, 192 L. Ed. 2d at 632 (alteration in original) (citation omitted), and held “the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of [a] fundamental right” denied based upon a person’s LGBTQ+ status, id. at 675, 192 L. Ed. 2d at 631. We hold in this case that N.C.G.S. § 50B-1(b)(6) does not survive this balancing test. “A State cannot so deem a class of persons a stranger to its laws.” Romer, 517 60 M.E. V. T.J. Opinion of the Court U.S. at 635, 134 L. Ed. 2d at 868. Plaintiff has asked this Court “for equal dignity in the eyes of the law. The Constitution grants [Plaintiff] that right.” Obergefell, 576 U.S. at 681, 192 L. Ed. 2d at 635. The Act fails to survive the review required pursuant to our analyses of Romer, Lawrence, Windsor, and Obergefell, and we so hold. D. Bostock v. Clayton County 1. The Decision The United States Supreme Court recently decided Bostock, 590 U.S. __, 140 S. Ct. 1731, 207 L. Ed. 2d 218, which this Court finds relevant to our review. Writing for the majority, Justice Gorsuch noted: “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” , Id. at ___, 140 S. Ct. at 1737, 207 L. Ed. 2d at ___. The Court was deciding a statutory challenge to part of Title VII— 42 U.S.C. § 2000e-2(a)(1): “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President”—42 U.S.C. § 2000e-2 was enacted in 1964. Bostock, 590 U.S. at ___, 140 S. Ct. at 1738, 207 L. Ed. 2d at ___ (emphasis added) (citation omitted). Further, the 61 M.E. V. T.J. Opinion of the Court Court added, “we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally.” Id. at ___, 140 S. Ct. at 1750, 207 L. Ed. 2d at ___. The Court stated in relevant part: “With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is ‘unlawful . . . for an employer to . . . discriminate against any individual . . . because of such individual’s . . . sex[.]’ § 2000e–2(a)(1).” Id. at ___, 140 S. Ct. at 1738, 207 L. Ed. 2d at ___ (emphasis added) (citation omitted). In Bostock, “The only statutorily protected characteristic at issue . . . [was] ‘sex[.]’” Id. at ___, 140 S. Ct. at 1739, 207 L. Ed. 2d at ___. “Appealing to roughly contemporaneous dictionaries, the employers [argued] that, as used here, the term ‘sex’ in 1964 referred to ‘status as either male or female [as] determined by reproductive biology.’” Id. The Court stated that it would “proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female[,]” “because nothing in our approach to these cases turns on the outcome of the parties’ debate [concerning the definition of ‘sex’], and because the employees concede the point for argument’s sake[.]” Id. (emphasis added). Therefore, the Court focused on whether, pursuant to a plain language reading, discrimination “because of” an employee’s “sex”—even when narrowly defined as limited to reproductive biology—included discrimination based upon a person’s status as gay, lesbian, or transgender. The Court noted that, applying the 62 M.E. V. T.J. Opinion of the Court restricted definition of “sex” argued by the employers, and the “ordinary meaning” of “because of,” the statute required at a minimum proof of “but-for” causation: [T]he statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” In the language of law, this means that Title VII’s “because of” test incorporates the “‘simple’” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. Id. (citations omitted). The Court held: It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision [to fire the employee]. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee— put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Id. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___. The Court gives plenary examples to demonstrate the principles and logic behind this holding, which are instructive. See Id. at ___, 140 S. Ct. at 1741–49, 207 L. Ed. 2d at ___. Although in Bostock the Court was construing a statute, its definitions and analysis are relevant to due process and equal protection claims, in that it holds the definition of “sex,” absent any qualifying language, includes “homosexuals” or “transgender” people when the issue 63 M.E. V. T.J. Opinion of the Court is discrimination or disparate treatment based, at least in part, on the status of a person as “homosexual” and “transgender”—i.e, based on a person’s sexual orientation or gender identity. Therefore, the majority held that discrimination against someone because that person is “homosexual” or “transgender”—i.e., based on who that person chooses to have intimate relations with, or the gender identity with which the person identifies—constitutes discrimination against that person, at least in part, based on their gender, or “sex;” Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision[.] Id. at ___, 140 S. Ct. at 1737, 207 L. Ed. 2d at ___ (emphasis added); id. at ___, 140 S. Ct. at 1742, 207 L. Ed. 2d at ___ (“an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person”). The Court reasoned: [H]omosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires [the] . . . 64 M.E. V. T.J. Opinion of the Court intentiona[l] treat[ment of] individual[s] . . . differently because of their sex. Id. at ___, 140 S. Ct. at 1742, 207 L. Ed. 2d at ___ (emphasis added). Neither does it affect the analysis if an employer “is equally happy to fire male and female employees who are homosexual or transgender.” Id. Further, “the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. . . . . [The analysis does not change i]f another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.” Id. at ___, 140 S. Ct. at 1744, 207 L. Ed. 2d at ___ (emphasis added). The Court held: “We do not hesitate to recognize today . . .: An employer who fires an individual merely for being gay or transgender” is discriminating against that person because of that individual’s “sex.” Id. at ___, 140 S. Ct. at 1754, 207 L. Ed. 2d at ___. “The fact that [it is the combination of] female sex and attraction to women [that] can . . . get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case . . . sex plays an essential but-for role.” Id. at ___, 140 S. Ct. at 1748, 207 L. Ed. 2d at ___ (emphasis added). The context surrounding the discriminatory act must be factored into the analysis, and that includes the “sex” of a complainant’s partner, or the “sex” of the complainant at birth, as determined by biology. Id. 2. Relevance to Plaintiff’s Appeal 65 M.E. V. T.J. Opinion of the Court We first note that the Supreme Court has held that “because of” language used to determine a “discriminatory purpose” when required for an Equal Protection Clause challenge “applies to the ‘class-based, invidiously discriminatory animus’ requirement of” federal statutes. Therefore, the Court’s analysis of Title VII in Bostock is also relevant to similar requirements imposed by the Fourteenth Amendment in the case before us. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 272, 122 L. Ed. 2d 34, 48 (1993) (citations omitted). Though Bostock was decided by statutory interpretation of certain language in Title VII, the reasoning in Bostock in support of its determination, that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex[,]” includes a common, plain language definition of “sex” in the context of discrimination that, absent some exclusionary language, must logically include sexual-orientation and gender identity. Bostock, 590 U.S. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___ (emphasis added). Therefore, the definition of “sex” in Bostock should apply equally to any law denying protections or benefits to people based upon sexual orientation or gender identity—disparate treatment based on these “statuses” is disparate treatment based, at least in part, upon “sex” or gender. See id. This Court has conducted an analysis similar to that in Bostock concerning the meaning of “racial animus” in a statute increasing punishment for certain crimes 66 M.E. V. T.J. Opinion of the Court committed “with racial animus,” and reached an analogous conclusion. See N.C.G.S. § 14-3 (2019); State v. Brown, 202 N.C. App. 499, 503, 689 S.E.2d 210, 213, disc. review denied, 364 N.C. 243, 698 S.E.2d 657 (2010). In Brown, the defendant “argue[d] that because both he and Peterson[, the victim,] [we]re of the same race, . . . the ethnic animosity statute, [could ]not apply.” Brown, 202 N.C. App. at 503, 689 S.E.2d at 213. N.C.G.S. § 14-3(c) mandates increased sentences when certain misdemeanors are “committed because of the victim’s race, color, religion, nationality, or country of origin[.]” N.C.G.S. § 14-3(c). This Court looked in part to Title VII opinions for guidance and noted: “There is nothing in either the language of [the statute], or the title of the bill, to suggest the General Assembly intended a narrow construction of what constituted ‘ethnic animosity’ or acts ‘committed because of the victim’s race or color.’” Brown, 202 N.C. App. at 508, 689 S.E.2d at 215. We held that a white man who assaults another white man based, in part, on the defendant’s objection to the victim’s romantic relationship with an African-American woman, has committed the assault “‘because of the victim’s race or color’”: Had Peterson been an African–American, Defendant might not have shot at Peterson. Therefore, the jury could reasonably find that Defendant[, a white man,] only shot at Peterson because Peterson was white, and Defendant was acting out his disgust with, or anger towards, Peterson because of Peterson’s relationship with a woman of a different race or color. Id. at 508, 689 S.E.2d at 215–16 (emphasis added). 67 M.E. V. T.J. Opinion of the Court When an equal protection challenge is raised: “Our decisions . . . establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 73 L. Ed. 2d 1090, 1098 (1982) (emphasis added) (citations omitted). Therefore, the Supreme Court’s definition of “sex,” or gender, in Bostock is relevant in this Court’s review of Plaintiff’s Fourteenth Amendment challenge before us. In this case, N.C.G.S. § 50B-1(b)(6) limits the protections of DVPOs to “persons of the opposite sex who are in a dating relationship or have been in a dating relationship.” N.C.G.S. § 50B-1(b)(6). The plain language of the statute specifically denies the protections of DVPOs to similarly situated “persons of the [same] sex who are in a dating relationship or have been in a dating relationship.” N.C.G.S. § 50B- 1(b)(6) (alteration in bracket). Pursuant to well-established precedent, cited above, and the reasoning in Bostock, N.C.G.S. § 50B-1(b)(6), on its face, treats similarly situated people differently based upon their “sex” or gender. Pursuant to Bostock, “An individual’s homosexuality or transgender status is not relevant [to the review]. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock, 590 U.S. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___ (emphasis added). As we have already held above, N.C.G.S. § 50B-1(b)(6) does not survive “intermediate 68 M.E. V. T.J. Opinion of the Court scrutiny,” which applies in cases where the alleged government discrimination is based on “sex” or gender and, therefore, the statute does not survive application to Plaintiff pursuant to the review demanded by Bostock. VI. Amicus Curiae We must now address certain issues involving this Court’s appointment of an amicus curiae to brief counterarguments to Plaintiff’s appeal. The trial court entered two final judgments on 7 June 2018, the 50B Order that denied Plaintiff’s request for a DVPO, and the 50C Order that granted Plaintiff a “permanent” civil no-contact order. In both of these orders, the trial court indicated that it would have granted Plaintiff’s request for a DVPO had Plaintiff been a man—a person of the opposite “sex” from Defendant. Plaintiff gave notice of appeal from the 50B Order. Approximately three months after Plaintiff’s request for a DVPO was denied, Defendant informed the trial court by a letter, dated 8 September 2018, that she did not “want [to] be involved.” This appeal involves issues of great public interest, the decision of which will affect the protections available to individuals of LGBTQ+ status who suffer domestic violence. Therefore, this Court’s decision will have an impact far beyond the immediate impact it will have on Plaintiff and Defendant. The public interest in the resolution of Plaintiff’s appeal is in part demonstrated by the fact that, on appeal, 69 M.E. V. T.J. Opinion of the Court Plaintiff is represented by attorneys representing ACLU of North Carolina Legal Foundation along with Plaintiff’s trial attorney. Notably, the State of North Carolina, in its amicus brief, does not defend the constitutionality of N.C.G.S. § 50B-1(b)(6), noting that “the State maintains a variety of programs to assist victims of domestic violence” and “the State also has a related interest in ensuring that all its people are treated equally under the law. This interest is particularly [strong] . . . where certain groups are being denied equal legal protections from private violence[,]” because “[t]he State and its law-enforcement community have an obligation to ensure the safety and security of all North Carolinians, without regard to their sexual orientation.” The Governor moved to join the State’s amicus brief, noting “[t]his case concerns whether persons in same-sex relationships should be afforded equal legal rights and protections from domestic violence” and stating the “Governor shares the State’s strong interest in ensuring that law enforcement has robust tools at its disposal to prevent and punish all forms of domestic violence.” The Governor “also shares the State’s overlapping interest in ensuring that all North Carolinians are treated equally under the law.” Additionally, an amicus brief was filed by North Carolina Coalition Against Domestic Violence [(“NCCADV”)]; Legal Aid of North Carolina [(“LANC”)]; and several local domestic violence support organizations, including Albemarle Hopeline, serving Camden, Chowan, Currituck, Gates, Pasquotank, and Perquimans Counties; Center for Family Violence Prevention, serving Pitt, 70 M.E. V. T.J. Opinion of the Court Martin, and Washington Counties; Cleveland County Abuse Prevention Council, Inc., serving Cleveland County; Compass Center for Women and Families, serving Orange County; Domestic Violence Shelter and Services, Inc., serving New Hanover County; Durham Crisis Response Center, serving Durham County; Families First, serving Bladen and Columbus Counties; Family Service of the Piedmont, serving Guilford County and the Central Hub of the LGBTQ Capacity Building Grant serving 25 counties; Helpmate Domestic Violence Services, serving Buncombe County; Hoke County Domestic Violence and Sexual Assault Center, serving Hoke County; Outer Banks Hotline, Inc., serving Dare County; InterAct, serving Wake County; A Safe Home for Everyone, serving Ashe County; and Southeastern Family Violence Center, serving Robeson County. NCCADV states that it “strives to empower all North Carolina communities to build a society that prevents and eliminates domestic violence” as “a nonprofit agency that leads the state’s movement to end domestic violence and to enhance work with survivors through collaborations, innovative trainings, prevention, technical assistance, state policy development and legal advocacy.” LANC “is a statewide, nonprofit law firm that provides free legal services in civil matters to low-income people in order to ensure equal access to justice.” Another amicus brief was filed by “‘North Carolina LGBTQ+ Non-Profit Organizations’” (“NCLNPO”), comprised of statewide and southeastern regional divisions of Equal [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10485687. Public record. Not legal advice.