WEST VIRGINIA RECORD

CHARLESTON – Separate accommodations for males in domestic abuse shelters don't constitute illegal discrimination, the Supreme Court of Appeals has ruled.

The Justices on May 26 reversed Kanawha Circuit Judge James Stucky, who detected gender discrimination in rules of the Family Protection Services Board.

The Justices wrote that "not all shelters will be equipped to provide facilities that can accommodate both male and female victims while meeting the privacy and safety concerns of both groups."

They wrote that "it is not unreasonable for shelters to use their limited resources to accommodate the group that makes up the vast majority of their clientele."

They found Stucky committed another error by ruling that the board chilled the free speech rights of Men and Women Against Discrimination.

On top of those rulings, they found the group lacked standing to sue at all.

The family protection board had challenged the group's standing in Stucky's court but not at the Supreme Court.

The Justices, in a rare move, adopted a position that the private West Virginia Coalition Against Domestic Violence expressed as friend of the court.

The coalition argued that Stucky's decision on standing couldn't withstand review, and all five Justices agreed.

"MAWAD may publicly espouse any view it desires without facing any repercussion from the board," they wrote. "Nothing in the First Amendment gives any person a right to more credible speech; rather, the First Amendment merely prohibits the government from infringing upon as person's freedom to engage in protected speech."

The group sued the board over three rules it adopted under state law.

One classifies men and adolescent males as a special needs population that might require alternative lodging.

One requires training for workers who intervene with perpetrators on "understanding that domestic violence is deeply rooted in historical attitudes toward women."

One requires certification of domestic violence advocates by the Coalition Against Domestic Violence.

The group claimed the rules deprived them of free expression and opportunities to attain certification or apply for funding.

Stucky found the rules chilled the exercise of rights and conflicted with the intent of domestic violence law.

The family protection board appealed, and William Lewis of Lewisburg followed through with a friendly brief for the Coalition Against Domestic Violence.

He wrote that Men and Women Against Discrimination promotes a myth that violence by women against men is as common as men against women.

He wrote that in 2005, West Virginia women were about three times as likely as men to be murdered by an intimate partner.

He wrote that Men and Women Against Discrimination established no injury but merely alleged an abstract, generalized grievance.

"Such ideological discontent is not sufficient injury in fact to confer First Amendment standing," he wrote.

He wrote that the group seeks to deter victims from seeking appropriate services.

He wrote that they seek to disrupt funding to licensed programs.

The Justices shared his view, finding Men and Women Against Discrimination failed to allege a single instance of discrimination.

"Moreover, MAWAD has not been refused a license or funding by the board because MAWAD has never actually applied for such," they wrote.

"MAWAD may publicly espouse any view it desires without facing any repercussion from the board," they wrote.

"That MAWAD believes its views are less credible in the eyes of the public because it is not a licensed domestic violence program, and its members are not certified domestic violence advocates, is not an issue of free speech," they wrote.

Attorney General Darrell McGraw and special assiant Bob Bastress of Morgantown represented the family protection board and members Judi Ball, Barbara Hawkins, Kathie King, Judy King Smith and Lora Maynard.

Harvey Peyton of Nitro represented Men and Women Against Discrimination.