US Supreme Court declines Florida's request to enforce anti-drag law during appeal

  • by Lisa Keen
  • Friday November 17, 2023
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The U.S. Supreme Court declined to hear a request from Florida officials to enforce an anti-drag law while it is appealed. Photo: Fred Schilling, Collection of the Supreme Court of the United States
The U.S. Supreme Court declined to hear a request from Florida officials to enforce an anti-drag law while it is appealed. Photo: Fred Schilling, Collection of the Supreme Court of the United States

In a surprise move, a 6-3 majority of the U.S. Supreme Court has rejected Florida's request for a stay against a lower court decision that would have enabled the state to enforce its new law banning drag shows under certain circumstances.

The ruling was issued November 16.

The case, Florida v. Hamburger Mary's, originated with a restaurant in Orlando that showcases numerous drag show events, including Family Nights. That activity was threatened in May when Republican Governor Ron DeSantis signed into law a five-bill package of legislation called "Let Kids Be Kids." Four of the five laws attacked LGBTQ-specific needs. DeSantis signed the package just before he entered the Republican presidential primary race.

The package bans gender-affirming medical care for minors, prohibits LGBTQ-related topics in K-8 classrooms, requires bathrooms and locker rooms in educational facilities and other public buildings to be used based on biological sex identified at birth, and bans children from sexually explicit performances. Legislative debate made clear that the latter bill was aimed at drag shows. It also includes a law that allows private and home-schooled students to participate in sports and other extracurricular activities at public or private schools regardless of ZIP code.

The law banning kids from drag shows did not use the term "drag shows" or any LGBTQ-specific term. It defined the target of the legislation to be "adult live performance," but the bill's sponsor in the House said its purpose was to target drag shows, including those in various public places, such as "Drag Queen Story Time" at libraries and drag performers at Pride events.

As the Bay Area Reporter previously reported, Hamburger Mary's sued the state to protect its own right to conduct "family-friendly" drag shows. On June 23, federal district court Judge Gregory Presnell rejected the state's request to dismiss the restaurant's lawsuit. He also granted the business' request for a preliminary injunction to stop the state from enforcing the law against Hamburger Mary's.

Presnell said the Florida law was so vague it was "dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech. ..." He also noted that parents are allowed to take children to R-rated movies. And he blocked the state from "any" enforcement of the law against any venue until his court could deliberate on the merits of the lawsuit.

In a 2-1 vote on October 11, a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld that temporary injunction, as the B.A.R. reported. Republican Florida Attorney General Ashley Moody immediately filed an emergency request to the U.S. Supreme Court, asking the justices to stay that injunction.

Things looked promising for Florida at first. Justice Clarence Thomas is the justice given responsibility for the 11th Circuit, and he could have granted the request himself. But, instead, he referred the matter to the full court.

On November 16, the Supreme Court issued a three-page response, denying Florida's request for an emergency stay.

LGBTQ advocates were pleased with the development.

"The Supreme Court did the right thing by leaving the injunction in place, but it's unnerving that three justices dissented," said Shannon Minter, a trans man who is legal director for the San Francisco-based National Center for Lesbian Rights.

Conservative Justice Brett Kavanaugh, writing for the majority, said to win a stay on the lower court's injunction Florida would have to show "a reasonable probability" that the Supreme Court would eventually grant a request on the question presented by the stay application.

"The State has not made that showing here," wrote Kavanaugh. Joining Kavanaugh in rejecting the request for a stay were Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. Voting to grant the injunction were the court's most reliable right-wing justices: Thomas, Samuel Alito, and Neil Gorsuch.

Kavanaugh made clear that the majority, in rejecting the stay, was not making any comment about the district court judge's statement that the law likely violates the First Amendment. Instead, he wrote, the rejection was based on a more technical question: whether the district court judge had the authority to block enforcement of the law against any venue beyond Hamburger Mary's.

Tennessee case

Meanwhile, in other recent Supreme Court developments, the American Civil Liberties Union and Lambda Legal Defense and Education Fund appealed a case to the high court November 2 that asks the justices to uphold a preliminary injunction to stop enforcement of a Tennessee law. It bans current and future gender-affirming medical care for young people. In the Tennessee case, the pro-LGBTQ legal team argues that the ban on gender-affirming medical care "likely violates the fundamental right of parents to make decisions concerning the medical care of their children."

In L.W. v. Tennessee, the groups lost their appeal to the 6th U.S. Circuit Court of Appeals and have, thus, brought the appeal to the Supreme Court.

Tennessee's law bans the prescription of gender-affirming medication for gender dysphoria if it is prescribed to enable a person to live as a gender not designated on the person's original birth certificate.

The groups represent three transgender youth and their parents, as well as a physician. The young people all suffered "severe distress from gender dysphoria" and obtained relief through medication, the legal groups stated.

"Tennessee and 20 other states have banned these treatments altogether, forcing families to upend their lives and move out of state to ensure that their children get the medical treatment they need," states the ACLU-Lambda petition.

Minter said the Tennessee case and others represent a sharp shift in the legal landscape.

"I hope that LGBT people across this country recognize that never in our lifetimes have we been in such danger of losing basic freedoms," said Minter. "We are fighting in the courts, but we must face up to the stark reality that our nation's highest court is highly unlikely to be a reliable defender of our rights. Any LGBT person who is not intensely focused on the upcoming elections does not understand the gravity of the situation."

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