Brown declined to comment on the matter now before the highest court in the state.
However, in his response to the petition, Brown argues that courts around the country are finding that a U.S. Supreme Court case from 1989 dealing with gender-based discrimination does apply to cases similar to Hudson versus the Bob Burdette Center.
Brown argues there is neither law nor court ruling in West Virginia that states gender stereotyping cannot apply to cases of discrimination.
However, in his petition, Mincer argues that the 1989 U.S. Supreme Court case does not apply to this situation because it dealt with a woman who was discriminated against because she was too "macho" and not because of her sexual orientation.
Webster also refused to dismiss a count that the center's decision to fire Hudson violated public policy. Charleston has a city ordinance that prohibits discrimination based on sexual orientation.
However, Mincer argues that applying an ordinance of one city in West Virginia to the entire state is "illogical."
In his petition, Mincer claims that Webster's decision to deny the motion to dismiss the case "manifests a persistent disregard for both procedural and substantive law."
Mincer also claims that Webster's delay in issuing an order on her ruling denying the motion to dismiss prevented him from seeking the state Supreme Court's intervention until Wednesday.
Webster heard arguments on the motion to dismiss on Oct. 17. However, she did not rule on the issue at that time. She told the attorneys she needed more time to consider the matter and would rule on Oct. 24. That timeline then was extended to Oct. 25.
Mincer requested a delay in the case to give him time to file the motion with the Supreme Court. Webster denied the motion to delay but did not provide Mincer with an order indicating the motion had been denied or explaining her reasoning, he said in his petition to the Supreme Court.
This is in direct conflict with the Supreme Court's instructions that all orders should be "sufficiently detailed with findings to allow for judicial review," his petition says.
Jury selection is scheduled for Monday with the trial slated to start on Wednesday.
Webster could not be reached for comment.