- Associated Press - Tuesday, May 9, 2017

CHARLESTON, W.Va. (AP) - The West Virginia Supreme Court on Tuesday upheld the dismissal of felony civil rights charges against a former Marshall University football player accused in an attack on two men he saw kissing.

The justices voted 3-2 to send the case of Steward Butler back to Cabell County Circuit Court for further disposition.

Circuit Judge Paul Farrell ruled last year that Butler could not be charged with a hate crime because it appeared that state lawmakers intended to leave protections based on sexual orientation out of the law.

The Supreme Court found that the definition of the word “sex” in the state’s hate crime statute was “unambiguous.” The justices said the statute does not address sexual orientation and that lawmakers have rejected every attempt to include sexual orientation since the law was enacted three decades ago.

The high court said there have been at least 26 failed attempts to amend the statute to include sexual orientation.

“The State cannot prosecute the defendant for an alleged criminal civil rights violation arising out of the victims’ sexual orientation,” Chief Justice Allen Loughry wrote in the court’s decision.

State Attorney General Patrick Morrisey said in a news release that the conduct Butler is accused of “does not give the judicial system a license to rewrite state law. That authority lies with the state Legislature and this decision preserves that balance.”

Butler is still facing two counts of battery. He has pleaded not guilty to the charges. He is accused of punching two men and shouting homophobic slurs at them after seeing them kiss outdoors in Huntington in April 2015.

Cabell County assistant prosecutor Lauren Plymale had argued that sexual-orientation discrimination should fall under the West Virginia code banning sex discrimination. She said Butler was enraged because of his own gender expectation that men shouldn’t kiss each other.

Justice Margaret Workman wrote a dissenting opinion and was joined by Justice Robin Davis.

“If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex?” Workman wrote. “Yes, but not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man. But for his sex, he would not have been attacked.”

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