By ERIN BECK
Charleston Gazette-Mail
CHARLESTON, W.Va. — Samantha Brookover and Amanda Abramovich wanted to prevent discrimination against other same-sex couples, so they filed a complaint with the West Virginia Human Rights Commission.
But in the end, they filed a lawsuit in federal court instead, arguing that their constitutional rights had been violated.
(Gazette-Mail file photo)
West Virginia’s Human Rights Act protects people from discrimination in housing, employment and public accommodations. It says that all West Virginians — regardless of race, religion, color, national origin, ancestry, sex, age, blindness or disability — should have equal rights in areas of public accommodation.
Public accommodations, like the Gilmer County clerk’s office, where Brookover and Abramovich applied for a marriage license and deputy clerk Debbie Allen told them, in February 2016, that what they were doing was wrong, and that God would judge them.
West Virginia’s Human Rights Act does not explicitly mention sexual orientation. But Cameron McKinney, attorney for the West Virginia Human Rights Commission, said he could have proceeded with the case anyway. The West Virginia Human Rights Commission is a state agency created by the West Virginia Human Rights Act. It is “charged with the responsibility of working to eliminate discrimination in West Virginia,” according to its website.
McKinney said he could have made the argument the women were discriminated against based on sex.
In other words, they were each doing something Allen didn’t think a woman should do — marry another woman.
After a person files a complaint with the Human Rights Commission, an investigator makes a recommendation as to whether there is probable cause. McKinney said they had received the complaint, and were investigating it, when the women asked to withdraw the case and said they planned to pursue a lawsuit instead.
“The only decision we made was that it was probably within our jurisdictional reach,” McKinney said.
Brookover and Abramovich filed a suit in April of 2017, represented by attorneys from Americans United for Separation of Church and State and cooperating counsel for Fairness West Virginia, an LGBT rights advocacy organization.
McKinney did not give names, but Brookover confirmed this week that she and Abramovich were the couple involved. A judge had dismissed the case Wednesday, after the parties agreed that Gilmer County would pay them $10,000, apologize, and Fairness West Virginia would hold a workplace sensitivity training.
“Americans United, this is a sole focus for them,” Brookover said. “Where the Human Rights Commission is, I feel, a little less in tune with the LGBT community.”
Brookover said they felt like “a burden” to the state Human Rights Commission.
“I felt like I was using up a lot of their resources and a lot of their time and effort,” she said. “Americans United took us further under their wing.”
But, “we kept getting bounced around an awful lot,” she said.
Earlier this year, the West Virginia Supreme Court found that Steward Butler, who attacked a same-sex couple in Huntington after he saw the two men kissing, could not be charged with a hate crime.
West Virginia’s hate crimes code also does not mention sexual orientation, but it does protect people on the basis of sex discrimination.
Cabell prosecutors had, like McKinney, argued that discrimination against a same-sex couple could fall under sex discrimination. They argued that Butler attacked based on his own views of how men should behave. Some federal courts have found that discrimination against same-sex couples can fall under sex discrimination.
Not long after the state Supreme Court found that the criminal statute cannot be interpreted that way, McKinney noted that the West Virginia Human Rights Act — the civil statute — is to be “liberally construed to provide people as much benefit as possible.”
“I think that there is room for an opposite interpretation from what they reached in the criminal case,” he said. “I don’t know what Allen Loughry would say,” he said, referring to the chief justice who wrote the opinion in Butler’s case.
The couple’s lawsuit, he noted, doesn’t cite West Virginia law.
“So far we just don’t have that case,” McKinney said.
McKinney said the only other person who had approached the commission about sexual orientation discrimination, whom he was aware of, was a woman from Huntington. He told her she had the option of filing with the commission, but state law “presented some risk to her.”
“The best approach is for the Legislature to amend the law,” he said. “Businesses and young, working people don’t want to go to backward places that are not open and receptive to all kinds.”
Andrew Schneider, executive director of Fairness West Virginia, said McKinney and another HRC employee have contacted him before about cases, and that “we’re in touch with each other so we make sure no one falls through the cracks.”
He added though, “I think a lot of people from the LGBT community are probably discouraged from approaching them, fearing that the law doesn’t protect them.”
As for whether any LGBT people contact the West Virginia Attorney General Patrick Morrisey’s office with discrimination complaints, earlier this year, Steven Travis, of the attorney general’s office, said, in response to a public records request, that the office “does not receive these complaints but rather acts as legal counsel for the West Virginia Human Rights Commission who receives, investigates, and refers claims for prosecution to our office.”
Reach Erin Beck at [email protected], 304-348-5163, Facebook.com/erinbeckwv, or follow @erinbeckwv on Twitter.
See more from the Charleston Gazette-Mail