On April 5, 2015, Zackary Johnson and Casey Williams, a gay couple, shared a brief kiss while walking along the sidewalk in Huntington, West Virginia. A man in a nearby car suddenly began yelling homophobic insults at them before exiting his vehicle and violently assaulting both Johnson and Williams. Johnson recorded the encounter on his phone, and the authorities quickly identified the alleged assailant as Steward Butler, a football player at nearby Marshall University.
A grand jury indicted Butler for committing both battery and a hate crime against both men. While West Virginia does not explicitly include sexual orientation in its hate crime law, it does bar violence against an individual “because of sex.” Prosecutors argued that, as used in this statute, sex encompasses sexual orientation, citing the federal judiciary’s growing consensus that the two categories cannot be logically separated. Before the case went to trial, Butler’s defense counsel contested the hate crime charges, arguing that a criminal statute must be interpreted as narrowly as possible. A judge agreed and threw out those charges; the prosecutor’s office appealed. On Tuesday, the West Virginia Supreme Court of Appeals heard arguments in West Virginia v. Butler to resolve the reach of the state’s hate crime measure.
Lauren E. Plymale, an assistant prosecuting attorney for Cabell County (in which Huntington is located), kicks off the morning with a simple plea to the justices: Let us take this case to a jury. Plymale argues that Butler’s battery was “based on the sex” of his victims and “the state is entitled to take this issue to a jury. The court can and should make a finding that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
To back up this claim, Plymale makes the three familiar arguments put forth by the Equal Employment Opportunity Commission and endorsed by multiple federal judges. First, she asserts that Butler’s assault was rooted in “sex stereotyping,” a form of sex discrimination recognized by the United States Supreme Court. Butler, Plymale explains, believes men should not kiss other men—only women. Attacking two gay men for failing to conform with this gender norm is a particularly brutal form of sex stereotyping.
Second, Plymale argues that anti-gay discrimination is associational sex discrimination, analogizing it to race: When an individual brutalizes a white person for associating romantically with a black person, he has committed race discrimination; by analogy, when he brutalizes a man for associating romantically with another man, he has committed sex discrimination.
Third, Plymale presents the so-called comparative theory of sex discrimination: If either man had been a woman, Butler would not have attacked them; therefore, he acted, quite literally, “because of sex.”
But Plymale barely has time to outline these three theories before the justices start yanking her in weird directions with questions that totally miss her point. Chief Justice Allen H. Loughry II asks Plymale, “Why do you think West Virginia didn’t include the terminology of sex orientatio’ within its statute as other states have done?” Plymale argues that because “the clear intent” of the legislature was “to protect individual civil rights,” its failure to mention sexual orientation specifically does not keep it from protecting gay people against sex-based violence. Justice Robin Jean Davis, looking and sounding mightily irked, then takes a jab at Plymale.
The statute is crystal clear. The legislature, in terms of separation of powers, has the ability to write sex orientation in the statute, which it did not do this last session. Are you asking us to legislate from the bench?
“No!” Plymale responds. “We’re asking you to interpret the statute based on the fact ...”
Davis cuts her off.
“Why do you have to interpret”—she draws out the word with disdain—“when the statute does not use the words?”
Justice Margaret L. Workman jumps in with an offbeat question of her own: “If this court were to find that the statute did not include gay and lesbian relations, would this court have any duty to examine the constitutionality of that?” After all, “the Supreme Court has said gay people have a right to be gay. They’ve endorsed gay marriage. How can we have a statute that protects all these groups of individuals from interference with their constitutional rights but excludes one group?”
“That is, I believe, our point,” Plymale answers with evident relief.
Actually, it isn’t quite her point, but it is an interesting one nonetheless. Workman’s reasoning is similar to the logic used by the 7th U.S. Circuit Court of Appeals when it wrote that “bizarre results ensue” from not including “sexual orientation” in “sex,” particularly in light of marriage equality. The Supreme Court has found that same-sex couples are protected by the Constitution—yet according to West Virginia Solicitor General Elbert Lin, West Virginia’s hate crime law does not shield them from bias-motivated violence. There is, in effect, a gap between constitutional equality and state law. Doesn’t it make sense to fill that gap by interpreting the hate crime statute expansively?
Absolutely not, said Lin, taking his turn at the lectern. Lin is here as a friend of the court at the behest of the state’s attorney general, Patrick Morrisey. A conservative Republican, Morrisey wants the court to interpret the statute as narrowly as possible.
“Sex discrimination and sexual orientation discrimination,” Lin insists, “have been long and commonly understood to be different concepts. One is discrimination premised on perceptions or beliefs related to one sex or the other; the second is discrimination premised on perception or beliefs that apply across both sexes.”
Workman looks skeptical. “What about the state’s argument,” she asks, “that if either one of [the men] had been a woman, they wouldn’t have gotten punched out by this guy?”
“That doesn’t address this core language question,” Lin responds. “By changing the sex from male to female they are also changing the sex orientation. They’re not just asking, ‘Would Butler treat a woman differently from a man?’ They’re asking if Butler would’ve treated a heterosexual woman differently from a homosexual man.”
This argument is meretricious. West Virginia’s hate crime law does not only bar violence motivated exclusively by the sex of the victim; it also applies where discrimination was merely a motivating factor. Butler’s primary prejudice may have been homophobia. But this homophobia grew out of his belief that men should not kiss other men. That is a sex-based stereotype, and it has long been understood to qualify as sex discrimination.
None of the justices, however, attempt to counter Lin’s sophistry, allowing him to embark upon a monologue that culminates in him nonsensically declaring: “We think all people are stereotypically heterosexual regardless of gender.” Workman throws her constitutional question out again, and Lin calmly swats it away. “I don’t believe that just because individuals have certain constitutional civil rights, they have to have equal protections written into the law and prescribed in a hate crimes context.”
Lin’s performance is so entrancingly smooth, in fact, that when Raymond A. Nolan rises to defend his client, he essentially asks to be dismissed.
“I don’t have a whole lot left that can be added,” Nolan admits. The chief justice slips into chummy mode, asking Nolan, “How does it feel being defense counsel and agreeing completely with the attorney general’s office?”
“Quite odd,” Nolan responds with a chuckle—then he praises the attorney general for not being too “politically correct.”
“That’s all nice and everything,” Workman dryly says before urging her colleagues to get back to business. Nolan sits down, knowing he’s schlepped out to the capital for no good reason, and Plymale returns for a very brief rebuttal. Then the case is submitted.
I should admit that I am somewhat uncertain as to the proper resolution here. It is impossible to remove sexual orientation from our conception of sex; the two are intertwined, and homophobia’s root cause is always sex stereotyping. But this argument is easier to make in the employment context than here, in a case involving criminal penalties. In the American legal system, criminal statutes—unlike civil nondiscrimination laws—are interpreted narrowly to force the government to be really clear when it wants to forbid something. Lin invoked this principle when he raised the rule of lenity, which holds that an ambiguous criminal law should be interpreted in favor of the defendant. If the rule of lenity applies here, then Butler should not be charged with a hate crime.
But is West Virginia’s hate crime law truly ambiguous? In her final minute, Plymale says that “a person of ordinary intelligence would have fair notice that physically attacking a person” because of “gender stereotyping” is illegal. “The defendant attacked a man for doing something he believes only a woman should do,” Plymale concluded. “That is a violation of civil rights because of sex.”
I find that argument compelling. The West Virginia Supreme Court likely will not. A majority of justices were outwardly skeptical of Plymale’s argument, expressing their hesitance to “legislate from the bench.” For the near future, at least, LGBTQ people will probably remain unprotected by the state’s hate crime law. And Zackary Johnson and Casey Williams will be left wondering why their civil rights are less worthy of protection merely because they are gay.