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West Virginia’s Supreme Court of Appeals justices, from left, are Robin Jean Davis, Menis E. Ketchum II, Allen H. Loughry II, Elizabeth D. Walker and Margaret L. Workman.
Fr. Mark Hodges Fr. Mark Hodges

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West Virginia court excludes ‘sexual orientation’ from anti-discrimination laws

Fr. Mark Hodges Fr. Mark Hodges

CHARLESTON, West Virginia, May 16, 2017 (LifeSiteNews) — The West Virginia Supreme Court has ruled that laws against discrimination on the basis of a person's sex do not include "sexual orientation."

The 3-2 decision upholds an originalist view of legislation whereby the judicial system interprets the intent of law and does not legislate from the bench.

Chief Justice Allen H. Loughry II delivered the ruling Saturday, which determined that “where the language of a statute is clear and without ambiguity, the plain meaning is to be accepted.” The ruling takes a strict constructionist view of law, which strikes at the heart of attempts to expand old laws to create a special class of “hate crimes.”

At issue was a 1987 state civil rights law (WV Code 61-6-21b) that prohibited discrimination on the basis of various characteristics, including “sex.”

“The West Virginia Supreme Court’s decision yesterday was a victory for common sense,” the Family Council of West Virginia (FCWV) posted on Facebook. “It will halt some of the biological heresy that left-leaning legislators have been attempting to pass that would give legal status to more than two genders.”

“George Orwell’s dystopian novel titled ‘1984’ depicts a world full of fear and intimidation where the government can permanently redact its citizens for merely thinking the wrong thing,” the FCWV continued. “Congress was frighteningly misguided when they codified the concept that some illegal acts, now labeled ‘hate crimes,’ should be punished more severely because of what the criminal may have been thinking at the time. This politically correct Group-Think has always been wrong-headed, and threatens commonsense liberties of West Virginia citizens exactly the same way that Orwell’s thought police punished people in his novel.”

The State of West Virginia v. Butler came about after Steward Butler punched two men openly kissing in public in 2015. He was charged and convicted of two counts of assault and battery, but he was also charged and convicted of two counts of violating the homosexuals’ civil rights under the 1987 law.

Butler accepted his punishment for punching the men but appealed the special civil rights discrimination convictions.

That the 1987 law intended “sex” discrimination to mean the binary genders male and female was not disputed. The State instead argued that the court should disregard the “literal sense of the words” in the statute and apply “sex” to include sexual orientation.

Republican West Virginia Attorney General Patrick Morrisey filed a “friend of the court” brief supporting the constructionist view. Lambda Legal Defense and Education Fund submitted a brief supporting the state’s view.

In the end, the state Supreme Court affirmed a circuit court’s ruling that the 1987 anti-discrimination law was “unambiguous.” Noting that sex and sexual orientation have quite different meanings, the court verified that justices are “bound to apply the law as it stands” and “cannot expand the word ‘sex’ to include ‘sexual orientation’ within West Virginia Code § 61-6-21(b).”

Citing several previous rulings, the state Supreme Court affirmed:

  • “This Court does not sit as a super-legislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation.” (from a 2009 ruling)

  • “Courts must presume that a legislature says in a statute what it means and means in a statute what it says.” (2017 ruling)

  • “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.” (1994 and 2013 rulings)

  • “Courts are not free to read into the language what is not there, but rather should apply the statute as written.” (2015)

  • “Judicial challenge ‘is not a license for [this Court] to judge the wisdom, fairness, or logic of legislative choices.’“ (2011)

The majority opinion also included references that tempered its ruling as one against judicial activism and not against anti-discrimination laws:

  • This decision is “not to be construed as a final adjudication of the questions presented” (from a 1937 state ruling)

  • This ruling “is neither an express nor an implicit ruling on the merits of the legal issue presented.”

  • “We do not comment on whether it would be good or bad policy for the Legislature to amend West Virginia Code § 61-6-21 to include sexual orientation.”

The court left Butler’s two battery convictions standing.

This West Virginia ruling is the exact opposite of a Chicago appeals court ruling on April 4 that Title VII of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color, religion, sex, and national origin, also covers homosexuality.

Two of the three women on the five-member West Virginia Supreme Court, Justices Robin Jean Davis and Margaret L. Workman, dissented. Their written dissent extensively quoted the Chicago appellate court’s redefining of “sex” not as one’s binary gender but as including expected gender roles versus homosexual activity.

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