This past Tuesday, the West Virginia Supreme Court ruled in a 3-2 decision that their hate crime laws do not cover assaults against gay citizens, or any crimes committed on the basis of sexual orientation.
Mark Joseph Stern of Slate reports that West Virginia v. Butler, “emerged from a disturbing case of anti-gay bias.”
“In 2015, Steward Butler, a college football player, allegedly attacked two men for kissing in public after shouting homophobic slurs. Prosecutors charged Butler not only with battery but also with a hate crime. West Virginia’s hate crime statute does not explicitly include sexual orientation, but it does bar violence “because of sex.” Prosecutors argued that Butler’s alleged attack fell under this prohibition because it was motivated by sex stereotyping, and because sex lay at the root of the brutality: Butler allegedly beat each man for intimately associating with a person of the same sex, and if either were different sex, he would not have assailed them.”
The court’s Chief Justice, Allen H. Loughry II, ignored the precedent that interprets ‘sex’ as “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes” and instead said that sex did not include sexual orientation. He did note, however, that the legislature has tried time and time again to get sexual orientation added to the state’s hate crime statute, but has repeatedly failed to do so.
Justice Margaret L. Workman fiercely disapproved of Loughry’s ruling, saying that he gave “the shortest shrift to real critical thinking.”
“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, 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.
If a Caucasian man is fired because he is married to an African-American woman, has he been discriminated against because of his race? Yes, but not simply because of the hue of his skin; rather, the act was committed because he was perceived to be behaving outside the social expectation of how a Caucasian man should behave with an African American woman. But for his race, he would not have been fired.”
Unfortunately, Workman’s views represented the minority of the court. But all hope is not lost; Lambda Legal attorney Greg Nevins has filed amicus brief supporting the prosecution, and has been adamant in voicing his disappointment in the court’s ruling.
“It’s increasingly clear that we lose if judges focus on the words that aren’t in the statute,” he told Stern, “and win if they focus on the words that are in the statute. The West Virginia Supreme Court narrowly went for the old-school former approach, which was in vogue in the federal appellate courts a dozen years ago. But notably those courts are now realizing the error of their ways and moving towards getting it right.”