3 Conservative Justices Dissent as Supreme Court Refuses to Reinstate Florida Drag Show Law

Florida’s law will remain on hold while an appeal proceeds before the 11th Circuit.
3 Conservative Justices Dissent as Supreme Court Refuses to Reinstate Florida Drag Show Law
Republican presidential candidate and Florida Gov. Ron DeSantis speaks at the Republican Jewish Coalition in Las Vegas, Nev., on Oct. 28, 2023. (Madalina Vasiliu/The Epoch Times)
Matthew Vadum

The Supreme Court turned away Florida’s request to reinstate its law regulating drag shows, which has been blocked by the lower courts.

The new order came at the end of the business day on Nov. 16.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, indicating they would have lifted the lower court’s stay. They did not explain their reasoning.

Justices Brett Kavanaugh and Amy Coney Barrett voted to maintain the stay. Justice Kavanaugh attached a statement (pdf) explaining his reasoning, which Justice Barrett joined except for a footnote discussing the applicability of the federal Administrative Procedure Act to the case.

“The Court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment,” the justices stated.

This is not necessarily the end of the matter at the Supreme Court. It could return to the court at a later date.

The emergency application in Griffin v. HM Florida-ORC LLC (court file 23A366) was docketed by the Supreme Court on Oct. 24. The petitioner, Melanie Griffin, is secretary of the Florida Department of Business and Professional Regulation. The respondent, HM Florida-ORC LLC, operates a Hamburger Mary’s restaurant and bar.

Florida Gov. Ron DeSantis, who is running for the Republican Party’s presidential nomination, signed the law in May.

The law was preliminarily enjoined in June by Judge Gregory Presnell of the U.S. District Court for the Middle District of Florida. Judge Presnell was appointed in 2000 by President Bill Clinton.

The district court acted after finding it “likely” that the statute “could not survive strict scrutiny because it did not employ sufficient narrowly tailored means to further the state’s compelling interest in protecting minors from obscene performances,” the judge wrote in an order.

That court also found it “likely that the language of the Act, which included terms like ‘lewd conduct’ and ‘lewd exposure of prosthetic or imitation genitals or breasts,’ was unconstitutionally vague and overbroad on its face.”

The court acted to prevent Floridians from being “exposed to the chilling effect of this facially unconstitutional statute.”

On Oct. 11, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit voted 2–1 not to lift the injunction.

Circuit Judge Andrew Brasher, who was appointed by President Donald Trump, dissented from that ruling.

“We have a single plaintiff that operates a single brick-and-mortar restaurant in a single city,” Judge Brasher wrote.

“An injunction addressed to everyone in Miami, Tallahassee, Jacksonville, Tampa, and everywhere else in Florida provides no benefit to that plaintiff and solves no administrability concern, but it nonetheless imposes significant burdens” on state officials.

Justice Kavanaugh said in his statement that for the Supreme Court to grant a stay pending appeal, there must be “a reasonable probability” that the court “would eventually grant certiorari [i.e. review] on the question presented in the stay application if the district court’s judgment were affirmed on appeal.”

“The State has not made that showing here,” he added.

Drag shows have become a political issue across the country as the transgender movement presses for public and legal acceptance.

Politicians in various states have responded to parents’ concerns by passing laws that restrict sometimes explicit drag show performances in front of children and banning the use of women’s restrooms by men who identify as women.

Drag show advocates protest that laws restricting the performances violate constitutionally protected free speech.

Florida officials had asked the Supreme Court to narrow the lower court’s order blocking the Protection of Children Act, which prohibits “adult live performances” in front of children.

The dining establishment that obtained the injunction against the law had offered “family-friendly” drag performances on Sundays, which children were encouraged to attend.

The lower court 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,” Florida Attorney General Ashley Moody, a Republican, said in the emergency application.

“As long as the district court’s preliminary injunction remains in place, Florida is powerless to enforce a law its elected representatives have enacted for the protection of its children.”

The statute allows the state to suspend or revoke the licenses of a business and imposes financial penalties for knowingly allowing children to attend such events.

The law’s text does not mention drag shows specifically, but targets “any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities.”

The lead attorney for the restaurant, Brice M. Timmons of Donati Law in Memphis, Tennessee, welcomed the Supreme Court’s ruling.

“We are pleased with the result at this stage and will continue to fight for the free speech rights of all Floridians,” Mr. Timmons said by email.

“This case can now proceed to trial,” he added.

The Epoch Times reached out to Ms. Moody’s office for comment but had not received a reply as of press time.