LGBTQ Agenda: Florida appeals Hamburger Mary's suit to US Supreme Court

  • by John Ferrannini, Assistant Editor
  • Tuesday November 7, 2023
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LGBTQ Agenda: Florida appeals Hamburger Mary's suit to US Supreme Court

The administration of Republican Florida Governor Ron DeSantis has appealed an appellate court's decision in favor of Hamburger Mary's in its suit against his anti-lewdness law to the United States Supreme Court.

As the Bay Area Reporter previously reported, DeSantis signed Senate Bill 1438 in May, which restricts children from attending "lewd" performances.

The language of the bill — aimed at "the lewd exposure of prosthetic or imitation genitals or breasts" — was viewed by many to target public drag shows, which has become a conservative cause célèbre in recent years. A similar law was passed earlier in Tennessee, and it wasn't the DeSantis' administration's first foray into drag: earlier this year, Florida was seeking to remove the liquor license of a hotel that'd supplied concessions for a drag show, as the B.A.R. reported.

(A federal judge threw out the Tennessee law in June, saying it was unconstitutional.)

DeSantis signed the law as he declared his candidacy for the Republican presidential nomination, where he is trailing former president Donald Trump in the race to go up against President Joe Biden (D) next year.

Subsequently, Hamburger Mary's Orlando filed suit, claiming that the law violated its rights under the First Amendment to the Constitution. The drag-themed restaurant claimed its bookings fell 20% after it announced children wouldn't be allowed to be in the restaurant during drag performances, in order to comply with SB 1438. The restaurant also alleged the law was "unconstitutionally vague."

Judge Gregory Presnell of the U.S. District Court for the Middle District of Florida, Orlando Division, agreed enough to grant a preliminary injunction against the enforcement of the law on June 24 until such time as a full trial can be held in the federal district court.

"The Act's focus on 'prosthetic or imitation genitals or breasts' raises a host of other concerns not simply answered — what are the implications for cancer survivors with prosthetic genitals or breasts?" Presnell asked in his ruling. "It is this vague language — dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech — which ... renders Plaintiff's claim likely to succeed on the merits."

Next, a panel of the 11th U.S. Circuit Court of Appeals upheld the preliminary injunction October 11 in a 2-1 decision, leading Florida Attorney General Ashley Moody to ask the U.S. Supreme Court for a partial stay, pending appeal. Her request was directed to Justice Clarence Thomas, who is assigned to the 11th Circuit.

The appeal states that the district court's preliminary injunction "inflicts irreparable harm on Florida and its children by purporting to erase from Florida's statute books a law designed to prevent the exposure of children to sexually explicit live performances."

The reason for this is that the law should be understood as the will of the Sunshine State's people, the appeal states, quoting Chief Justice John Roberts, who said regarding another, unrelated case that "Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury."

The Florida attorney general's office argues that the law should be allowed to go into effect for those not party to the suit, which is only Hamburger Mary's.

"An injunction limited to Hamburger Mary's still protects Hamburger Mary's fully from the chill that it claims in its complaint," the complaint states. "Granting universal relief to Hamburger Mary's is plainly inappropriate. Hamburger Mary's asserts that the Protection of Children Act chills its speech, but an injunction limited to it would fully remedy that injury. No other plaintiff joined this lawsuit, nor did the district court certify Hamburger Mary's as a class representative."

The circuit justice, Thomas in this case, can refer the appeal for the stay to the full court, or grant or deny it by himself. The justice can also order Hamburger Mary's to file its own brief defending itself.

If it goes before the full court, five justices would need to agree to grant a stay. Orders on stays, unlike signed opinions after oral arguments and a writ of certiorari, are generally short and do not need to be explained.

DeSantis' office and Hamburger Mary's Orlando did not return requests for comment for this report by press time.

Florida's attorney general wants the U.S. Supreme Court to weigh in on a state anti-lewdness law that Hamburger Mary's Orlando is fighting in court. Photo: Courtesy Hamburger Mary's Orlando

LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]

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