Prosecutors in Cabell County alleged that Steward Butler in April 2015 was riding in the car with some friends in Huntington when he saw two men kiss on the sidewalk. Butler allegedly "voiced homophobic slurs toward" the men, exited the vehicle and punched both of them, knocking one to the ground.
The next month, a grand jury indicted Butler on two counts of battery and two counts of violating an individual's civil rights.
Butler challenged the civil rights charges and those were dismissed by a circuit court after "concluding that the word 'sex' in the West Virginia legal code was plain and unambiguous and could not be expanded to include 'sexual orientation."
Prosecutors appealed to the Supreme Court of Appeals.
In Tuesday's ruling, the court was asked to mull the meaning of the word "sex" and if that includes "sexual orientation."
Thirty years ago, the state Legislature defined a civil rights crime as a "threat, intimidation and/or injury to another person or another person's property because of specifically enumerated characteristics, including the victim's 'sex,'" the decision states
Citing definitions from three different dictionaries and a nationwide review of hate crime laws, the decision imparts it "indisputably demonstrates that "sex" and "sexual orientation" are being treated as distinct categories."
In the war of words, the court ruled that what's in the Legislature's code stands: "Based upon the common and plain meaning of the word 'sex,' as well as the Legislature's clear intent, we are left with the ineluctable conclusion that the word 'sex' does not include 'sexual orientation.'"
Raymond Nolan, attorney for Butler, agreed with the decision. "It was a legislation function and the Supreme Court applied the law correctly."
The justices' ruling points out more than two dozen efforts to add "sexual orientation" to the statute have failed.
West Virginia Attorney General Patrick Morrisey said he understood the rationale.
"The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law," Morrisey's office said in a statement. "That authority lies with the state Legislature and this decision preserves that balance."
"I'm not saying the opinion that the law shouldn't be changed and neither did the court. But at the time that this occurred, the law of West Virginia did not include that class as protected by the law," Nolan said.
Others said the ruling was a step in the wrong direction.
Sarah Kate Ellis, GLAAD's president and CEO, said: "At a time when anti-LGBTQ hate violence is on the rise, this ruling reiterates the need to advocate for LGBTQ-inclusive hate-crime laws in all states across the nation."
"The pertinent question is not whether the statute contains the words "sexual orientation." Rather, it is whether the crime was committed because of the victims' sex," Justice Margaret L. Workman wrote in dissent
While Workman agrees that the statute does not include the "two magic words" sexual orientation, she said "this court adopted an overly narrow focus, metaphorically missing the forest for the trees."
"The majority's answer is overly simplistic and constricted; the absence of the specific reference does not definitively resolve the question presented by this case," she wrote.
While the civil rights charges cannot go forward, prosecutors can proceed with battery charges against Butler.