Court opinions are often dry reads, but page four of State Supreme Court Chief Justice Allen Loughry’s majority opinion in State v. Steward Butler is an attention grabber.  “Through this appeal, we are asked to examine the meaning of the word ‘sex’ as used in West Virginia Code.”

First, the background:

Butler, a former Marshall University football player, saw two men on the sidewalk in Huntington kissing in the early morning hours of April 2, 2015.  Butler allegedly yelled homophobic slurs and punched both men, knocking one of them to the ground.

Butler was indicted on two counts of battery and two counts hate crimes.  A Cabell County Circuit Judge threw out the civil rights charges, saying that sexual orientation is not included in the state’s hate crime statute.

Prosecutors brought their case to the State Supreme Court, and Tuesday the justices ruled three-two in favor of Butler.  Justice Loughry argued in his majority decision that the state law is unambiguous; the statute passed by the Legislature in 1987 prohibits violations of a person’s civil rights “because of their race, color, religion, ancestry, national origin, political affiliation or sex.”

The law makes no mention of sexual orientation.  Loughry points out that “there have been at least 26 attempts to amend the statute to include ‘sexual orientation’ and each attempt has failed.”  That’s a significant point; if the Legislature had intended to include sexual orientation there would be no need to try to amend the law.

Justice Margaret Workman, writing the dissent for herself and Justice Robin Davis, tries mightily to connect dots in a way that expands the law to include sexual orientation. She argues that the two victims were attacked because of their sex.  “Attacking a male and shouting homophobic slurs because he is kissing a man most certainly qualifies as committing an act ‘because of sex’.”

It’s a worthy effort by Workman, but it bypasses the Legislature’s intent. As Loughry points out, the courts cannot read into a law what is not there. “This precept is particularly crucial to our analysis when the State essentially asks this court to judicially amend West Virginia Code 61-6-21 by expanding it to create a new felony when the Legislature has repeatedly chosen not to do so.”

A majority of West Virginians may believe that the LGBTQ community should have additional protections, and they can persuade their elected representatives that adding sexual orientation to the state’s hate crime statute is the right thing to do.

But that’s a public policy decision, not one that should be divined by the judiciary, especially when the preponderance of evidence suggests what the dissenting justices were looking for just is not in the law.

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