Based on the argument that West Virginia lawmakers knowingly intend for discrimination against LGBT residents to be legal, a Cabell County judge has ruled that former Marshall University football player Steward Butler cannot be charged with a hate crime for allegedly attacking two men after he saw them kiss.
Raymond Nolan, the defense attorney representing Butler, noted in his written argument, and Judge Paul Farrell noted in an order filed Friday, that the West Virginia Supreme Court has said lower courts should look to the intent of a law when interpreting it. And they both said it certainly seems that lawmakers intend for sexual orientation to be left out of the state hate crimes law, since they have had numerous opportunities to add it.
Prosecutors had argued that the provision in the state hate crimes law that extends protection based on gender should be interpreted to encompass sexual orientation, because they said Butler would not have committed the crime if one of the men had been a woman.
Cabell Assistant Prosecutor Lauren Plymale also had argued that the West Virginia Legislature can't possibly have meant to legalize discrimination.
"Because the Defendant's behavior is precisely the type of injustice that elevates his behavior from battery, to something much more, and because the Legislature cannot conceivably have intended to exclude an entire class of vulnerable West Virginians from protections, this Court should answer the certified question in the positive," Plymale wrote in a brief submitted late last month.
The case was the first time a court considered whether West Virginia's hate crimes law protects a person's civil rights based on sexual orientation, according to the state's brief.
In April 2015, Butler allegedly punched two men and shouted homophobic slurs at them after he saw them kiss on the streets of Huntington.
He was indicted the following month on two felony civil rights violations and two counts of battery. He pleaded not guilty to the charges.
The state hate crimes law extends protection based on race, color, religion, ancestry, national origin, political affiliation and sex, but does not explicitly include protection based on sexual orientation or gender identity.
In December, Plymale said she and Nolan were sending a certified question to the Supreme Court, asking if the hate crimes law could be interpreted to include protection based on sexual orientation.
In February, the Supreme Court, in a split decision, said it was declining to review the question.
In a written argument submitted late last month, Nolan argued that numerous states have enacted hate crimes legislation that protects residents based on sexual orientation, while other jurisdictions have enacted hate crimes statutes that extend protection based on sex and sexual orientation. He said West Virginia's decision not to must be purposeful.
"The West Virginia Legislature, in enacting West Virginia Code 61-6-21(b), certainly had the option to include sexual orientation as an area of protection but chose not to do so," the brief says. "The omission, standing alone, establishes the legislative intent was to exclude sexual orientation and, therefore, the State of West Virginia's attempt to circumvent said legislative intent and charge Mr. Butler with violating this statutory provision is inappropriate."
In a brief, Nolan also said it appears that West Virginia is the only state with a hate crimes law that includes sex but not sexual orientation. (The brief actually says "Virginia," instead of "West Virginia," but Nolan said he meant to type "West Virginia.")
According to the Anti-Defamation League, numerous states have hate crimes laws that include sex but not sexual orientation. They include Alaska, Mississippi, North Carolina, North Dakota and West Virginia.
Meanwhile, the state argued that because numerous courts and the Equal Employment Opportunity Commission have concluded that allegations of discrimination based on sexual orientation may constitute discrimination on the basis of sex, the court should apply the same principles to its interpretation of West Virginia code.
"[Butler's] behavior demonstrates a willingness to exert his own brand of random, vigilante social engineering on any random strangers who he happens to find unacceptable," the brief states. "The purpose behind the construction of 61-6-21, (The West Virginia Human Rights Act), and Title VII is to protect classes of individuals from such bigotry. Each of these laws respond in some way to the thought that all persons shall be able to be themselves without the thought of prejudice, or even worse, violence. The Defendant's assault on two homosexual men, simply because they were homosexual, should likewise be abhorred by this Court."
Like the defense, the state also noted that, to interpret the meaning of a law, courts must consider the law's intent. But the state cited a 1925 West Virginia Supreme Court case, Click v. Click, which said it "is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of words in a statute, when such construction would lead to injustice and absurdity."
"In this case, failure to apply West Virginia Code 61-6-21 would lead to injustice," the brief states.
Nolan said Friday that he and Butler were "relieved and pleased." He said it was a "good day for Mr. Butler."
"I think that the judge applied the law, and correctly so," Nolan said.
Plymale and Cabell County Prosecutor Sean "Corky" Hammers were out of the office.
Andrew Schneider, executive director of the LGBT rights organization Fairness West Virginia, said it is "morally reprehensible" that the charges would have to be dismissed because the state lacks an LGBT-inclusive nondiscrimination law. He said lawmakers' failure to add sexual orientation and gender identity to the state hate crimes code "is basically giving the green light to allowing hate-motivated violence in West Virginia."
"This decision sends the message that it is OK to engage in hate-motivated violence based on someone's sexual orientation," he said. "Hate-based violence fosters anxiety and mistrust and ultimately brings fear to whole neighborhoods, communities and towns. This decision only underscores the urgency of the need for adding sexual orientation and gender identity to both the hate crimes law and the nondiscrimination law."
The hate crimes charges against Butler are to be dismissed in 60 days, unless the state appeals.
Butler is still facing two counts of battery. His trial is set for 9 a.m. Aug. 16.
Reach Erin Beck at erin.beck@wvgazettemail.com, 304-348-5163, Facebook.com/erinbeckwv, or follow @erinbeckwv on Twitter.