Orlando and Obergefell

On June 12, 2016 – two weeks before the one-year anniversary of the United States Supreme Court’s decision in Obergefell v. Hodges, 132 S. Ct. 2584 (2015), which nationalized marriage equality – a lone gunman armed with an AR-15 assault rifle murdered 49 people and wounded 53 others at Pulse, a gay night club in Orlando on its Latin night. It was the deadliest mass shooting in U.S. history.

That an attack on a gay bar occurred during June, which is LGBT pride month, has left the LGBT community and the country reeling. Memorials and vigils took place around the country. Iconic landmarks like One Freedom Tower and the Eiffel Tower were lit in rainbow colors to honor the victims. People stood in line in the Florida heat for 6 hours to donate much needed blood for the injured. Both presidential candidates claimed solidarity with the LGBT community.

The outpouring of support was not entirely uniform. A handful of pastors praised the massacre, claiming that Orlando was safer because of the deaths of “pedophiles.” And, of course, the reprehensible Westboro Baptist Church has indicated it will come to Orlando to engage in its vile protests against LGBT people. As awful as these things are, they are, mercifully, outliers.

The massacre at Pulse was not the first attack on a gay bar. On June 24, 1973, an arsonist fire-bombed the UpStairs Lounge in New Orleans, killing 32 people. The public reaction to the tragedy was quite different.

Churches refused to bury the victim’s remains. Their deaths were mostly ignored and sometimes mocked by politicians and the media. No one was ever charged. A joke made the rounds in workplaces and was repeated on the radio: “where will they bury the queers? In fruit jars.”

Liam Stack, Before Orlando Shooting, an Anti-Gay Massacre in New Orleans Was Largely Forgotten, N.Y. Times, June 13, 2016, http://www.nytimes.com/2016/06/15/us/upstairs-lounge-new-orleans-fire-orlando-gay-bar.html?_r=0.

The contrasting responses between New Orleans in 1973 and Orlando in 2016 is obviously not due simply to the passage of time. Rather, it reflects the decades of work by LGBT activists to change public attitudes towards LGBT people. The law has played a significant role in this evolution.

Although a handful of municipalities began passing gay rights ordinances in the 1970s, the first state to pass a gay rights law was Wisconsin in 1981. Massachusetts became the second state to do so in 1989. Other states began to enact such measures, and currently 22 states and the District of Columbia have some sort of laws prohibiting discrimination on the basis of sexual orientation. Many, but unfortunately not all, also include gender identity and expression among the protected classes. These laws provided legal recourse for those who experience discrimination but just as important proclaimed that such discrimination is morally unacceptable. It was a step towards recognizing the common humanity of LGBT people. The fight for marriage equality, ultimately culminating in Obergefell, played a huge role in affirming the humanity of LGBT people.

The law, of course, is not the only engine of social change. Indeed, merely passing laws and rendering court decisions does not necessarily change hearts and minds, but is often the result of revised thinking on the party of the citizenry. As for LGBT civil rights three additional components were critical – the willingness of LGBT people to come ou, the embrace of LGBT in popular culture through such popular shows as Will & Grace, and the support of people of faith. But just as the law alone could not advance society’s view of LGBT people, these other components needed the support of the legal system to propel us to where we are now.

To be sure, neither the law nor society as a whole is where we should be on LGBT rights. Twenty-eight states still have no statewide laws protecting LGBT people. Resistence to Obergefell has manifested in so-called religious liberty laws. And more recently, North Carolina passed “emergency” legislation overturning Charlotte’s ordinance that would have protected LGBT rights.

And of course, the massacre in Orlando is a further reminder of the distance yet to travel. It is clear that the shooter chose Pulse because it was a gay night club. His father reported that the shooter was disgusted by seeing two men kissing. Other reports indicate that the shooter had been at Pulse numerous times and was on gay social media apps like Grindr. Whether his homophobia was in response to his own sexuality or a product of a particular subculture remains to be seen. In either case, it is clear that acceptance of LGBT people is far from universal.

As incredibly painful as this event is for those of us in the LGBT community – after all, our supposedly safe space was turned into a death chamber – the support the LGBT has received from the country as a whole and from the world is a sign of the remarkable progress our community has made. The law has played an important role in this progress. Do not underestimate the ability of the law to foster social change

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