CHARLESTON – The West Virginia Supreme Court of Appeals has chosen to not rule on whether or not a former Marshall University football player can be charged with a hate crime in connection with the assault of two gay men that occurred last year.

The Supreme Court issued its order on Feb. 9, with only two of the five sitting justices agreed to accept the question to the docket.

Justices Robin Jean Davis and Margaret L. Workman said they would accept the question to the docket, while Justices Menis Ketchum, Brent D. Benjamin and Allen Loughry were opposed to considering the question.

Steward Butler was accused of making homophobic slurs and striking both Zackary Johnson and Casey Williams in their faces just after they kissed at Fifth Avenue and Ninth Street in Huntington in April.

Butler was then charged with two counts of felony civil rights violations and two counts of misdemeanor battery. He later pled not guilty to the charges.

In December, Cabell County Prosecutor Sean “Corky” Hammers, Assistant Prosecutor Lauren Plymale and Butler’s attorney, Raymond Nolan, submitted paperwork asking the court to decide whether state code protects one’s civil rights if the crime is base solely upon the victim’s sexual orientation.

West Virginia’s hate crime law extends protections based on race, color, religion, ancestry, national origin, political affiliation and sex, but does not explicitly include protections based on sexual orientation or gender identity.

Butler was dismissed from Marshall University’s football team after his arrest.

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