In May, Marshall University football player Steward Butler was dismissed Steward Butler from its football teamcaught on video attacking a gay couple.

When Butler, 22, saw Zackery Johnson and Casey Williams being affectionate on the street, he climbed out of the car he was a passenger in, and physically and verbally assaulted the two.

Butler was originally charged with misdemeanor assault, and faced two years in prison and a $1,000 fine.

But in June, Prosecutor Sean "Corky" Hammers added two felony civil-rights-violation charges.

West Virginia's hate crime statutes don't include sexual orientation, so Hammers claimed the attack was based on the victims' sex.

He's arguing that if one of the victims had been female, the assault would not have occurred.

Now Cabbell County Circuit Court Judge Paul T. Farrell has asked the West Virginia Supreme Court to rule if Butler can be charged under the state code.

It reads:

All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.

The tactic is similar to the one the Obama Administration has employed to protect LGBT people under the EEOC, but it hasn't been proven in court—much less in a state as conservative as West Virginia.

Butler's trail date is tentatively set for January 26.