Fundamental Differences
Brooklyn man's aversion to lesbian neighbors leads to court battle
09.11.00 | The Capital Times
by Jason Shepard
TOWN OF BROOKLYN --
Gail Farrington was undergoing chemotherapy for breast cancer when she moved to rural Green County after 17 years of city life in Madison.
''My doctors told me to avoid stress, and I thought this was going to be perfect for me,'' says Farrington, a 49-year-old nurse for terminally ill patients whose cancer has since gone into remission.
In early 1999, Farrington moved in with her partner, Kathy Carter, 41.
The setting was almost perfect, a modest duplex Carter built in 1996 atop a hill in the town of Brooklyn, about 20 miles south of Madison. It was close enough to Madison, where both women worked, but far enough away to forget the headaches of city living.
They wanted a big garden they could tend and they loved the ''awe-inspiring'' sunrises and sunsets against a backdrop of cornfields.
Sharing the duplex with Farrington and Carter are their longtime friends, Myrna Peterson, 48, and Cheryl Hack, 43.
''When things were really bad, when I didn't know if I was going to live, the most important thing I felt was to get to the country, where I could go to bed at night and have it quiet outside, no noise, no traffic,'' Farrington says.
But she says she found little solace. Instead, the two couples say their neighbor, Dary Byczek, 35, has harassed and tormented them for the past two years. Now, Byczek's anti-gay rhetoric and alleged harassment may land him in jail.
The neighbors are embroiled in a bitter dispute that has entered Green County Circuit Court -- a last resort for the two lesbian couples.
Byczek has been charged with disorderly conduct as a hate crime and officials say the case is the first time Green County prosecutors have ever sought a hate crime enhancer based on sexual orientation.
At a hearing on Wednesday, a judge will rule whether Byczek will face the hate crime enhancer, which increases the maximum penalty from 90 days to one year in jail.
Tensions escalated last week after Byczek was locked in jail on a $ 4,500 cash bail for allegedly violating a restraining order, which the women obtained against him two weeks ago. After Byczek's release, he erected a large sign in his yard along Highway 104 that reads, ''My God says 'Homosexuality is a sin.' It could be in your backyard.''
The legal battle yet to be played out in court centers around the definition of a hate crime and pits the First Amendment against two lesbian couples' right to be left alone. And the case raises compelling questions about what property owners are allowed to do on their own land.
''I paid for this property. I pay the taxes,'' says Dawn Byczek, Dary's wife. ''I figure as long as I'm not hurting someone else I should be able to do what I damn well please, and my husband should be able to.''
The battle lines have been drawn, but it seems the Byczeks may throw in the towel. Facing significant jail time, Dary Byczek late last week posted a ''For Sale'' sign about a hundred feet from his anti-gay edict.
The lesbian couples say they had no choice but to turn to the legal system.
''Just what are we supposed to do?'' Carter asks.
''We can't stop living our lives ... But on the other hand, we say that, but when he comes out and this stuff starts happening, we become trapped in our homes. We're afraid. Our whole bodies tense up because we don't know what to do.''
Moving to a new home is an option the women have talked about. Financially they don't think they can do it. And, in principle, they say they shouldn't have to.
Their modest ranch-style duplex also has sentimental value to Carter. She helped construct the home from the very beginning.
''We looked long and hard for place to build our home,'' she says. ''But when we got here, everything was just right. The price, the location. And when we saw the sunset, we just knew we wanted it.''
Neighbor Byczek arrested
Carter says there were signs from their first day on the land that their neighbor might be trouble.
Carter, Peterson and Hack slept in tents on the property while the house was being built. They say that on the first night there, their neighbor screeched a monster truck along the fence line within feet of their tent and flung mud across the fence.
The horrendous noise woke them up, and they say it was so loud they thought the truck was headed straight toward them.
''Maybe he didn't know we were there,'' Carter says, but the noise and the dust began to be a consistent worry.
And things got worse after the women were asked to testify at a zoning hearing before the Green County Board in the spring of 1999. The Byczeks wanted to operate a monster truck supply business out of their home, but the permit was denied.
''I think in part he blamed us for the board's denial, which is so crazy because we didn't even say we didn't want him to have the business,'' Carter says. They expressed concerns about traffic and noise, but many other people opposed the operation.
After that, it seemed that whenever the women would go out into their backyard, Byczek would jump in one of his monster trucks and spit up mud and dust along the property line.
The women say they got used to going into the duplex when Byczek would come out in a truck because the dust clouds got so bad they had a hard time breathing.
At times, the clouds became so bad they couldn't see each other standing in their own backyard.
But on Memorial Day weekend things came to a head. Carter and Farrington say they were out in their garden, which is close to Byczek's fence line, when he came out and wrote with spray paint, ''Lesbians will go to hell'' on the side on an abandoned truck.
''(We) tried to ignore him like we've consistently tried to do and he went and got another vehicle and rammed into the side of the truck with the writing on it, shoving it further into the fence,'' the women wrote in their affidavit.
Byczek then began shouting at them, the women say, and they ran into their homes. Byczek then drove his truck from his field into the women's driveway, and pounded on their doors and screaming things like ''You f------ lesbians will go to hell!''
A 911 dispatcher recorded several obscenities that she could hear after one of the women called authorities, according to police reports.
Deputy Kay Lukes reported that the women were visibly upset, and said Hack's ''whole body was trembling.''
Lukes wrote, ''She told me that today was the first time she really felt that her life was in danger and that their neighbor had the potential to kill them.''
The women expressed concern about having Byczek arrested and said they feared repercussions, the reports say.
The reports also say Byczek used obscene language with police officers, and used several derogatory words to describe his lesbian neighbors.
Following the incident, Byczek was booked into the Green County Jail on a charge of misdemeanor disorderly conduct with a hate crime enhancer.
Things boiled up again near summer's end. On Aug. 31, Green County Court Commissioner Tim Burns granted the women a two-year restraining order against Byczek, barring him from contacting the women.
The restraining order also tried to attack the root of the women's problems. Burns ordered Byczek not to come within 150 feet of the fence line separating his property from the women's except to do ''routine maintenance'' of the property between 8 a.m. and 8 p.m.
Burns also ruled the ''Lesbians will go to hell'' paint on one of the trucks is not protected by the First Amendment. Burns said the phrase constitutes ''fighting words,'' a legal distinction that allows government to censor the phrase. The commissioner ordered that Byczek cover the words or move the truck.
Three days later, sheriff's deputies were again called to the women's home and following an investigation, they arrested Byczek for violating the restraining order.
The women had called the Sheriff's Office after Byczek allegedly participated in a ''parade'' of monster trucks along the women's fence line, in apparent violation of the restraining order. Four other people also were allegedly involved.
He was booked into the Green County Jail on nine counts of violating the order, and was given a bail requirement of $ 4,500, which he was able to post. Formal charges are expected to filed this week.
For the past week, things have been quiet, but the women say they're still afraid.
The truck with spray paint has been turned to face the opposite direction. But in its place, Byczek has erected the much more visible billboard facing the highway.
So far, a few cars have pulled into the women's driveway after passing Byczek's religious edict, and those who have stopped have supported the women, they say.
It never should have come to this, the two couples say. And they struggle to find a reason why Byczek is targeting them.
''It's not like we've had big crazy parties with a lot of dancing, naked lesbians in our backyard,'' jokes Carter. ''We're very quiet, polite, nice, private people.''
Farrington notes, ''Some of our friends think we're so stupid to stay. But where else do we go? This is our home.''
Who's the target?
Dary Byczek and his wife Dawn said in an interview at their home last week they are still in a bit of shock, having been served with a harassment injunction as well as Dary Byczek's most recent arrest in which they had to scramble to find $ 4,500 to bail him out.
Sitting at their kitchen table as their 3-year-old son shows a visitor his collection of toy trucks, the couple say they were hesitant to talk about the case and were advised by their attorney not to do so. But they made the argument that they are the victims of a capricious legal system that has never asked them to explain their actions.
And they maintain their rights to expression and property have been egregiously violated.
''This is the first time anyone has asked us about our side of the story,'' Dawn Byczek says.
''This isn't about hate. We don't hate anybody. ... ''We both have gay friends who we like very much.''
But later in the interview, both Dawn and Dary Byczek say their religious convictions lead them to condemn homosexuality. Nevertheless, their front yard sign proclaiming homosexuality is a sin is not meant to judge people, Dawn Byczek says.
''That's an expression of his religious beliefs,'' she says of her husband. ''We've always felt that as a family, we live our lives and others live theirs.''
But she later admits that an incident last summer left the family reeling over the lesbian couples' displays of affection.
Dawn Byczek said that her other son, who was 9 years old at the time, came into the house one day after seeing ''something he shouldn't have seen.'' When pressed for details, Dawn Byczek says that he said he saw the women ''touching like Mommy and Daddy do.''
''We as parents were floored, not to mention appalled, by the fact that we had to explain to our children why two people of the same sex are touching each other in ways that Mommy and Daddy do,'' Dawn says.
''That made us extremely irate.''
The County Board meeting in which the women testified about their business left them ''disappointed and hurt,'' Dawn adds. While the women say they didn't outright oppose the business, the Byczeks believe their testimony along with that of others resulted in the permit's denial.
It wasn't until the women began videotaping them did they become upset, Dary Byczek says.
''There was something wrong with that,'' he says. ''And it wasn't just me on tape, it was my kids.''
According to police reports, the women were advised by a sheriff's deputy to videotape Byczek to show a pattern of harassment. The two female couples say the tapes display a pattern of Byczek's reckless monster truck driving along their property line.
The videotapes are now in custody of the Sheriff's Office, and were reviewed by the district attorney before hate crime charges were filed.
While Dawn Byczek says the couple don't want to comment about the specifics of the police allegations, Dary Byczek says the Memorial Day incident in which he yelled at their doorstep was out of frustration and exasperation.
''You can only take so much of a feeling of your life and property being invaded before you're forced to do something about it,'' Dary Byczek says.
''Memorial Day was when all of this came to a head,'' says Dawn.
Dary says the spray painting was done in frustration and that he should be allowed to display his religious beliefs. He only posted the street sign after he was ordered by the court to cover the spray paint.
He said he spit up dust with his monster trucks long before the four women built their duplex.
''That being the end of the field and the farthest from the house, that's where I played the hardest,'' Dary Byczek says.
''I'm not saying I'm an angel or that we're an angelic family. But I've never done anything to harass them. I'm just playing with my toys. Some people golf. I ride big trucks.''
Dawn Byczek says she's most concerned about her three children, who are now afraid of police after they've seen them twice haul their dad away from home.
''We moved here to have a place to raise our kids and to have enough land for Dary and his trucks,'' she says. ''That's how he releases his stress.''
But she says they don't want to stay living under the conditions imposed by the court.
''We might as well be living under a dictatorship,'' Dawn explains.
Dary adds, ''The reason we bought the property was to play how we wanted.''
He says he may try to contact Ralph Ovadal, the controversial anti-gay crusader who heads Monroe-based Wisconsin Christians United, for help.
Is it a hate crime?
One of the legal questions to be fought over this week is whether Dary Byczek should face a hate crime enhancer for his conduct -- which in practical terms means more time in jail.
The idea of giving extra punishment to a criminal based on his beliefs has long been a controversial legal question and was addressed by the U.S. Supreme Court in a 1993 case involving a Wisconsin conviction.
In Wisconsin v. Mitchell, the U.S. Supreme Court ruled states could increase penalties for criminal acts if they were committed by a people who chose their victims based on race, sexual orientation or other personal characteristics.
The decision overturned a ruling of the Wisconsin Supreme Court, which determined the state's Hate Crimes Law violated a person's First Amendment rights because it targeted a person's thoughts.
''The Wisconsin Legislature cannot criminalize bigoted thought with which it disagrees,'' the state court had ruled.
The case centered around the beating of a white teenager in Kenosha in 1989. Todd Mitchell, a black man, had been discussing a scene from the movie ''Mississippi Burning,'' in which a white man beat a young black boy who was praying.
Authorities alleged Mitchell spotted a white boy on the street hours later, and said, ''There goes a white boy, go get him.'' The white teen was severely beaten and Mitchell was convicted of aggravated battery as a hate crime.
In its decision, the U.S. Supreme Court ruled that states are allowed to punish more severely criminals who are motivated by hate.
And Green County District Attorney Gary Luhman said that is what he intends to do.
''Getting the hate crime enhancer on certainly ups the penalties, which is 90 percent of what we're looking at,'' says Luhman, who has been D.A. since 1991 and worked as assistant district attorney beginning in 1983.
''Whether or not there's a dismissal of the hate crime, we're going to proceed on the disorderly conduct charge.''
At a hearing on Wednesday, visiting LaFayette County Circuit Court Judge William Johnston will decide whether Byczek can be charged with a hate crime.
Byczek's Madison attorney, Mark Eisenberg, is arguing that the hate crime enhancer has been unconstitutionally applied in this case, saying that the First Amendment protects Byczek's right to express disdain for lesbians.
Don Downs, a University of Wisconsin-Madison political science professor who teaches both criminal law and First Amendment law, said Dary Byczek's case raises interesting questions about property rights and free speech.
But, after reviewing court documents and police reports at the request of The Capital Times, Downs said Byczek has little chance of getting the hate crime enhancer dismissed.
''Given Mitchell, given the state law, it seems to me this is a clear hate crime,'' Downs said.
Downs says that expression unaccompanied by any kinds of overt verbal threats, threatening gestures, or physical actions, is protected by the First Amendment.
The sign alone exclaiming ''Lesbians will go to hell,'' may have been protected speech had there not been any other actions, Downs said.
''But the context is important ... Given the other stuff he did, this guy has no case,'' Downs said.
As a matter of principle, the women say it's crucial to them that Byczek be tried with the hate crime enhancer. It's a sign of justice, they say, because were they not lesbians, they likely would have been left alone.
''If they don't get him for the hate crime, I'm ready to just give up,'' Farrington says. ''It'll be the last straw.''
But the Byczeks, too, are feeling the pressure of the tension with their neighbors. Late last week, Dary Byczek hung up a For Sale sign on his front driveway.
The couple say they can't tolerate the infringement on their rights and say they are ready to move.
''I'll be damned if I have to live here and not use part of my property,'' Dawn Byczek says. ''We feel, to make sure that this ends, we have to move.''