By COURTNEY HESSLER
The Herald-Dispatch
HUNTINGTON, W.Va. — The West Virginia Supreme Court of Appeals with a 3-2 vote affirmed a circuit court ruling that dismissed felony civil rights violations against a man accused of saying an anti-gay slur before striking two men moments after he saw them kiss.
Justices Allen Loughry, Menis Ketcum and Elizabeth Walker agreed with Cabell Circuit Judge Paul T. Farrell in determining sex and sexual orientation to be two separate terms, leaving hate crime protections for those in the LBGTQ community non-existent in the state.
In their dissenting opinion, justices Margaret Workman and Robin Davis said the majority’s ruling was the “most effortless answer” in implying the decision was premature.
That question stemmed from the case of former Marshall University running back Steward Butler, who is accused of saying an anti-gay slur and striking Zackary Johnson and Casey Williams in their faces moments after they kissed at 5th Avenue and 9th Street in Huntington in April 2015.
In 2016, Cabell Circuit Judge Paul T. Farrell ruled charges of felony civil rights violations against Butler should be dismissed, but not the remaining two misdemeanor battery charges, due to his interpretation of the state civil rights laws.
The West Virginia civil rights code includes protections against persons or property from violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.
Cabell County Assistant Prosecutor Lauren Plymale appealed to the Supreme Court, asking if the word sex could be expanded to include sexual orientation, while also arguing Butler would not have attacked the men had they been in a heterosexual relationship or females in a homosexual relationship.
Farrell, Cabell County Defense Attorney Ray Nolan who represents Butler and the three affirming justices have cited the Legislature’s clear avoidance of adding sexual orientation to the state hate crime law in 26 attempts since its 1987 enactment.
“Judicial challenge is not a license for this Court to judge the wisdom, fairness, or logic of legislative choices,” the justices wrote.
The justices did not comment on their opinion of the civil rights law, but said “our own rules expressly prohibit bias and discrimination in the courts of this state based on several categories, including both ‘sex’ and ‘sexual orientation.'”
In their dissenting opinion, justices Workman and Davis called the ruling premature.
“The point of origin in the majority’s opinion is sound; the statute indisputably does not include the words ‘sexual orientation,'” they wrote. “But simply finding the absence of those two magic words fatal to the State’s contention is the most effortless answer this Court could conjure.”
The two justices agreed with Plymale in that the two alleged victims were attacked based on their sex.
“If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex? Yes,” they wrote. “But not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man. But for his sex, he would not have been attacked.”
West Virginia Attorney General Patrick Morrisey, whose office intervened in the in opposition of the prosecution in a rare move, applauded the ruling.
“The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law,” he said. “That authority lies with the state Legislature and this decision preserves that balance.”
The case now will be sent back to circuit court for further consideration. Butler still faces up to one year in jail for each misdemeanor count of battery.
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