The West Virginia Supreme Court of Appeals ruled on Tuesday in a 3-2 decision that anti-gay assaults are not protected by the state’s hate crime law, reports ABC News. The case stems from an incident in 2015, when a man allegedly directed homophobic slurs at two men he witnessed kissing while at a stoplight. According to court documents, the man — Steward Butler — proceeded to get out of his car and assault both victims in the face with his fist.
Because of the state’s use of the word “sex” in its statues, and not “sexual orientation” specifically, the court ruled that the ambiguity of the word allowed for dismissal of charges of civil rights violations. In the ruling, Chief Justice Allen Loughtry stated:
“In determining what is meant by the word “sex,” we are mindful that “‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.
...Affording the undefined term “sex” its common and ordinary meaning, and for the reasons set forth below, we find the word to be clear and unambiguous and to have a very different meaning and import than the term “sexual orientation.”
...It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.
...This Court’s exercise of discretion under Rule 17(a)(6) of the West Virginia Rules of Appellate Procedure in refusing to docket a certified question presented to this Court under West Virginia Code § 58-5-2 (2012) is neither an express nor an implicit ruling on the merits of the legal issue presented therein, and the circuit court may thereafter take such action and make such rulings in the matter as it deems appropriate."
The court made note of the West Virginia Legislature's "repeated refusal" to amend the state's description of hate crimes to include “sexual orientation,” concluding the number of failed efforts "is undoubtedly indicative of its intent not to include 'sexual orientation' therein."
Since 1987, there have been at least 26 attempts to amend the statute to include “sexual orientation,” and, according to the court, each attempt has failed.