Supreme Court refuses to revive Florida drag show law

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

A federal judge previously struck down the law, finding it unconstitutional. As it 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 and voted to revive the law.

Two other conservatives — Justices Brett Kavanaugh and Amy Coney Barrett — voted with the majority to rule against Florida, but the duo indicated their votes don’t signify whether they believe the law is constitutional.

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 it 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.

In his first interview following the ruling, Hamburger Mary’s owner John Paonessa told The Hill he was “absolutely thrilled” about his victory.

“It’s unbelievable what you can do when you stand up for what’s right, and the courts see what it is,” Paonessa said. “That’s what’s happening everywhere, so I’m glad we were able to do it.”

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.

Kavanaugh, in a statement joined by 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.

But Kavanaugh cautioned that Florida’s emergency request dealt with the scope of the lower court’s injunction, not whether the 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.

Paonessa said the ruling makes him optimistic Hamburger Mary’s will prevail in the end.

“We’re taking a stand against the state, the governor trying to erase one-by-one and step-by-step, trying to erase the LGBTQI+ community,” he said.

“This sets a precedent, if we could win this, that we’re not going to stand for rulings where our rights are being violated,” he continued. “This is happening all across the country and other states as well, where these same laws are trying to be enacted. And we’re fighting back against all of these states, and we’re winning.”

Florida Attorney General Ashley Moody (R) referenced concerns previously expressed by some of the justices about lower courts exceeding their authority in issuing broad rulings, rather than granting relief to only the plaintiffs.

“Hamburger Mary’s suffers no harm from a stay of the injunction only as to nonparties,” Florida wrote in court filings. “Again, an injunction limited to Hamburger Mary’s still protects Hamburger Mary’s fully from the chill that it claims in its complaint.”

“Our brief is due November 24th, and litigation, as to the constitutionality of statue, will move forward,” said Kylie Mason, Moody’s communications director.

Updated at 9:31 a.m. Nov. 17

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