A divided Supreme Court on Thursday rejected Florida’s request to be allowed to temporarily enforce a law that makes it a misdemeanour to allow children to attend drag performances. The brief, unsigned order means the state cannot apply the law anywhere in the country while a Florida restaurant’s challenge to the law continues.
Three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated they would have granted the state’s request, but did not explain their votes.
Justice Brett Kavanaugh wrote a three-page concurrence, joined (except for one footnote) by Justice Amy Coney Barrett, explaining that the court had properly denied the state’s petition because the justices were unlikely to grant review and take up the issue the state had challenged at this stage of the case.
Florida Governor Ron DeSantis signed the law, known as the Protection of Children Act, into law in 2023. The law makes it a misdemeanour to allow a child to attend “adult live performances”, which are defined as including, among other things, “the lewd exposure of prosthetic or imitation genitals or breasts”. The law is widely seen as targeting drag shows.
Hamburger Mary’s, an Orlando restaurant chain that hosts drag show performances, including “family friendly” shows, went to federal court to challenge the constitutionality of the law, arguing that it violates the First Amendment. U.S. District Judge Gregory Presnell enjoined Florida officials from enforcing the law anywhere in the state, concluding that it violated the First Amendment and the Due Process Clause.
When the U.S. Court of Appeals for the 11th Circuit refused to stay Presnell’s order beyond Hamburger Mary’s, the state went to the Supreme Court on 19 October, asking the justices to do so while its appeal of Presnell’s ruling proceeds.
Florida Solicitor General Henry Whitaker told the justices that Presnell’s order was overbroad: it prevented the state from enforcing the anti-drag law anywhere in Florida, when he could have simply issued an order barring any prosecution of Hamburger Mary’s. Presnell’s order, Whitaker wrote, “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.
Hamburger Mary’s urged the justices to leave Presnell’s order in place. The restaurant argued that the state would not be harmed by the order because other state laws already prevent children from viewing sexually explicit material. Moreover, the restaurant added, the state’s claim that it would be seriously harmed if the law remains on hold nationwide is belied by its failure to seek an expedited appeal in the 11th Circuit, where the state actually sought two extensions of time to file its opening brief.
And contrary to the state’s assertion, it is not enough to simply enjoin the state from enforcing the drag ban against Hamburger Mary’s, the restaurant argued, because the restaurant “does not operate and present its performances in a vacuum”. Because the same performers who perform at Hamburger Mary’s also perform elsewhere in the state, the restaurant argued, other venues “could be subject to penalties under the Act for the same performances by the same performers” unless the drag ban is blocked statewide.
In a brief order on Thursday afternoon, the justices denied the state’s request. In his opinion, Kavanaugh noted that while the state “strongly disagrees” with the district court’s conclusion that the law violates the First Amendment, Florida “does not raise this issue” in its filings with the Supreme Court. Instead, Kavanaugh said, the state is simply seeking to be able to enforce the law against entities that are not parties to the lawsuit. Whether district courts have the power to issue an order barring the government from enforcing a law against non-parties is “an important question that may warrant our review in the future,” Kavanaugh acknowledged. But because of the context in which the question arises – a First Amendment case alleging that a law is overbroad – this case is an “imperfect vehicle” for considering the procedural question, Kavanaugh concluded, and the court was therefore correct to deny review.
Barrett joined Kavanaugh’s opinion except for a footnote in which Kavanaugh noted that the question of whether district courts may issue an order enjoining the government from enforcing a law against non-parties is a separate question “from the question of whether a court may vacate a federal agency’s rule under” the federal Administrative Procedure Act.