I agree completely, Miller.
The relevant issue is the WV legislature has openly considered the issue of adding homosexuals to the hate crime statute in question and have specifically denied doing so. You’d have to be a pretty hardcore textualist to ignore all the state court precedent and plain-intentions of the legislature in this case, from the perspective of being a WV Supreme Court justice. Note that various Federal statutes were fairly similar to the WV one, and none were ever found to cover gays under the concept that discrimination or hate crimes against gays is a form of sex discrimination. On the matter of hate crimes gays are covered at the Federal level by the 2009 Matthew Shepard act, but again, that took a specific action of the legislature, no court ever expanded upon sex discrimination to cover it.
The closest we’ve come is the Obama Administration started to develop a working theory that discrimination against trans people would violate sex discrimination laws, but that was based on “executive administrative interpretation”, and with a new executive in place that theory has largely been dropped.
The reason for hate crimes is that bigotry is an offense above and beyond the crime itself, and bigotry so bad that you commit a heinous crime is really, really bad bigotry, to the level that nothing like freedom of speech or freedom or religion can apply. The criminal who is such because of bigotry is just a bigger threat to society than a criminal that is not.
The idea that having an additional punishment on top of the original incentivises non-bigoted violence is fucking stupid. If it did, then having harsher penalties for Murder 1 would incentivise Murder 2. This argument is never made for that. We increase the punishment with the severity of the crime.
As for this specific case, I don’t believe in the pseudo-conservative “plain text” interpretation of laws. I believe the proper form of interpretation for any text (even the Bible) is to use it to do the right thing, while still adhering to the text.
I also do not agree that we have any obligation to favor the accuses once convicted of the crime in question. That obligation is only because the accused might be innocent, and we prioritize freeing the innocent over incarcerating the guilty.
Now, whether the Supreme Court will agree, I don’t know. I’m pretty sure a textualist/originalist won’t, because that is just a smokescreen to cover choosing the conservative interpretation and then pretending it’s the only interpretation the text allows. (This occurs even if they don’t intend it, because it is impossible to remove your own biases entirely, especially if you refuse to admit they play a part.)
(I think the only way to possibly do an objective interpretation is to bring people with different biases together and then find what they agree upon.)
Hey, UltraVires, I had a quick squizz at these two cases and the record seems to show that you were opposed on both occasions by the Attorney General in person. Have I read that right, or is he merely on there in the same way that your firm name is on there?
Our equivalent of your Attorney General is the Solicitor-General or depending on circumstances the Director of Public Prosecutions, but neither of them would appear on an assault case unless it was in the High Court (SCOTUS equivalent).
I get that a senior officer like an AG might appear on a murder of sufficient consequence, but if he appears on assaults too he must be a very busy man, even with junior counsel to do the grunt work.
He was not there in person. He appeared by his assistant, also named in the pleadings. In West Virginia, the county prosecutor (or his/her assistant) has the option of defending an appeal. If he/she declines, the attorney general’s office represents the State.
Note that we have no intermediate court of appeals. An appeal from the trial court goes directly to the state Supreme Court, which by its own rule hears all criminal appeals as a matter of right. Whether that means a realistic and meaningful appeal, well, remains the subject of debate among attorneys. 