Supreme Court refuses to revive Florida drag show law

The Supreme Court on Thursday refused Florida’s emergency request to partially put back into effect its law targeting drag shows, preventing the state from enforcing the legislation, for now.

A federal judge previously struck down the law after finding it unconstitutional. As Florida appeals, the Republican-led state in the meantime sought to keep enforcing the legislation except against the restaurant that brought the lawsuit.

Three of the court’s conservatives, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, publicly dissented.

Signed into law by Florida Gov. Ron DeSantis (R) in May, the legislation makes it a misdemeanor to knowingly admit a child to an “adult live performance,” partially defined as shows that depict “lewd conduct” or “lewd exposure of prosthetic or imitation genitals or breasts.”

Hamburger Mary’s, an Orlando restaurant and bar that hosts drag shows, quickly sued. The establishment successfully convinced a Clinton-appointed federal judge to invalidate the law by ruling it violates the First Amendment. 

Finding the law unconstitutionally vague and overbroad, the judge barred Florida from enforcing it against not only Hamburger Mary’s but also anyone else in the state.

Florida then asked to partially freeze the ruling as the state’s appeal proceeds, so Florida could enforce the law on all establishments other than Hamburger Mary’s. Lower courts denied the request, leading to the state’s emergency application at the Supreme Court.

The case now returns to the 11th U.S. Circuit Court of Appeals for the full appeal. After a final ruling, the case could ultimately return to the justices.

Justice Brett Kavanaugh, in a statement joined by Justice Amy Coney Barrett, said Florida’s request didn’t meet one of the criteria the justices look for in an emergency application: whether the Supreme Court has a “reasonable probability” of eventually agreeing to hear the issue on the merits

“The State has not made that showing here,” Kavanaugh wrote. 

Kavanaugh noted Florida’s emergency request dealt with the scope of the lower court’s injunction, not whether the state’s law itself is constitutional.                                              

“Florida’s stay application to this Court does not raise that First Amendment issue. Therefore, the Court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment,” he wrote.

In court filings, Hamburger Mary’s noted that courts have regularly blocked laws entirely upon finding they were unconstitutionally broad.                                                               

“HM does not operate its restaurant and present its performances in a vacuum. The artists who perform at HM’s establishments perform in other venues across the State of Florida,” the restaurant told the justices. 

“If the injunction were limited to HM, other establishments could be subject to penalties under the Act for the same performances by the same performers,” their brief continued. “Artists who perform anywhere other than this single Hamburger Mary’s location will be forced to censor their performances to avoid running afoul of the law. HM’s establishment would become the only business in the State of Florida where performers have the freedom of speech and expression guaranteed by the First Amendment.”