It’s happened again; another news cycle, another mass shooting. This time Club Q, a nightclub in Colorado Springs, Colo., was the scene of a hateful act of violence, leaving five people dead and 18 injured. But there is something different about this incident: The club serves a distinct group of individuals — the LGBTQ community.
Much has been said about the shooting in the last few days. Some have justifiably decried the ease with which individuals can purchase guns and the disturbing rise in public shootings. Others have discussed the consistent targeting of vulnerable populations by shooters, including schools, houses of worship and, for the second time in six years, a nightclub catering to the LGBTQ community. Finally, there have been empty statements about “thoughts and prayers” from high-profile individuals who seem to have little interest in preventing further tragedies.
I will speak to none of those issues. Debates about gun control are complicated, and there are better informed writers to discuss them. So too for discussions about politics. As a professor who teaches sexual orientation, gender identity and the law, it is most appropriate that I speak to what I know, and what I know is this: The law has again failed the LGBTQ community.
Sure, there have been victories. Lawrence v. Texas protected our right to explore intimate connections with those whom we love, a province in which legislation had no business to begin with; Obergefell v. Hodges gave use the right to marry, something that shouldn’t have needed to be litigated in the first place. But these victories have been limited. Masterpiece Cakeshop decided that someone’s choice of faith tradition exempted them from recognizing the equality of fellow human beings due to a characteristic largely accepted as immutable. The Respect for Marriage Act, far from respecting marriage as a fundamental right, would enshrine those exceptions in federal law, all in the name of protecting the LGBTQ community.
Which brings us back to the shooting in Colorado. As of yet, the shooter’s motives are unknown. But in the interest of candor, it’s unlikely that Club Q was a random choice. There still exist protections for discriminating against the LGBTQ community. Change is overdue, and there are three immediate steps that our state and federal governments can take.
First, Congress must stop engaging in performative acts of allyship. Here is a ready example: the Respect for Marriage Act. Yes, this act promises to protect same-sex and interracial marriage. At the same time, the Senate version offers exceptions for religious objections. Privileging the choice of some people to discriminate at the expense of others is not respectful of marriage, nor is it respectful of the LGBTQ and minority communities. Marriage – per Loving v. Virginia and Obergefell – is constitutionally protected. So too is the free exercise of religion. But to the extent that these rights conflict, the text of the Ninth Amendment makes clear that the enumeration of free exercise in the First Amendment does not give it precedence over any other constitutionally protected rights.
To that end, if Congress wants to claim to support the LGBTQ community, it should do so without granting the right to discriminate to those who view LGBTQ relationships as inferior to heterosexual relationships. Anything less is disingenuous.
Similarly, it’s time to completely ban “panic defenses.” A panic defense is a defense in criminal law that is used to shift the blame for a murder on to the victim by virtue of the victims actual or perceived status as LGBTQ. At present, 16 states have banned the panic defense. Twelve more states and the federal government have pending legislation. That these defenses exist in the first place is an indication of how state legislatures and court systems have viewed the value of LGBTQ lives. By banning the defense that LGBTQ people are somehow responsible for their own murders, governments can take a meaningful step away from validating violence against LGBTQ individuals.
Finally, it is time to make sexual orientation and gender identity federally protect classes. While many states have protected sexual orientation and gender identity, the federal government has not done so in a civil sense. Where protection does exist, it does so largely through case law (e.g., Bostock v. Clayton County). Yet even though sexual orientation and gender identity are not statutorily protected from discrimination, federal law does elevate certain crimes based on the actual or perceived sexual orientation or gender identity of the victim to the level of a hate crime. That means Congress knows that discrimination against the LGBTQ community is wrong but left the job of protecting them unfinished anyway. It’s time to fix that mistake.
We should mourn the victims of the Club Q shooting. We should have painful conversations about the social value of political rhetoric that targets any vulnerable group. The victims and their families deserve more than “thoughts and prayers”; they deserve meaningful change. How many more need to die before we choose to act?
Eliot T. Tracz teaches sexual orientation, gender identity and the Law at
New England Law | Boston.