The Florida law restricting drag shows in the state will continue to be on hold, as announced by the Supreme Court on Thursday. This represents a setback for a significant initiative supported by Republican Governor Ron DeSantis.
Florida had sought the Supreme Court’s intervention to limit a lower court’s injunction that had prevented the law from being applied across the state. However, the justices chose not to make such restrictions.
Conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch expressed dissent, indicating their willingness to allow the law to be implemented.
In a concise statement concurring with the court’s decision, Justices Brett Kavanaugh and, in part, Justice Amy Coney Barrett, addressed the complexities of the First Amendment in the case, noting that it was an “imperfect vehicle” for addressing specific central questions in the dispute.
Florida Attorney General Ashley Moody argued that the law, known as the “Protection of Children Act,” aimed to “prevent the exposure of children to sexually explicit live performances.”
Enacted in 2023, the law classifies knowingly admitting a child to a sexually explicit adult live performance, deemed obscene for the child’s age, as a misdemeanor.
A Florida district court judge blocked the law in June, citing likely violations of the Constitution’s free speech and due process protections and its unconstitutional vagueness. The 11th US Circuit Court of Appeals rejected Florida’s emergency request for a stay, prompting the state to appeal to the Supreme Court.
The Supreme Court’s decision means that state authorities cannot enforce the law until the legal challenge is resolved. The case may return to the justices, but the lower courts will likely take months to complete their review and any subsequent appeals.
“While we are disappointed in this particular ruling, the Supreme Court did not opine on the merits of our law protecting children from sexualized adult live performances,” commented Jeremy Redfern, press secretary for Governor DeSantis. “This case is still pending appeal at the 11th Circuit, and we expect this law to be upheld on the merits.”
The law’s initial challenge came from Hamburger Mary’s, a popular Orlando restaurant that hosts drag brunches, claiming that the legislation led to a loss of business. Florida had requested the justices to narrow the statewide injunction so that the law could be enforced against all companies except the challenging restaurant.
“Florida is now unable to enforce its statute at all, to the detriment of Florida’s children and the State’s sovereign prerogative to protect them from harm,” argued Attorney General Moody.
Moody also contended that Hamburger Mary’s is unaffected by the law because its shows are not sexually explicit. Brice Timmons, an attorney representing the restaurant, commended the Supreme Court’s decision: “At this point, it is blocked from enforcement because all speech restrictions are presumed unconstitutional. Florida has not shown why this carve out for the LGBTQ community is special.”
DeSantis, vying for the 2024 Republican presidential nomination, considered the law a top priority.
Upon signing the law in May, the governor emphasized Florida’s commitment to safeguarding children, stating that the state “is proud to lead the way in standing up for our children.”
In a May statement, he asserted, “As the world goes mad, Florida represents a refuge of sanity and a citadel of normalcy.”
A representative for Hamburger Mary’s informed the Supreme Court that before the law’s enactment, the restaurant’s drag show performances, featuring comedy sketches and dancing, had no age restrictions. However, in response to the law, the establishment implemented age limits on all versions, except for one Sunday afternoon show tailored for the youngest audience to comply with the law.
The restaurant has resumed regular operations since the district court temporarily halted the law’s enforcement. The restaurant’s legal counsel argued that stifling other participants in the “marketplace of ideas” would inherently curtail its free speech rights.
Legal challenges to the law are ongoing in lower courts. CNN Supreme Court analyst and University of Texas School of Law professor Steve Vladeck cautioned against extrapolating broader implications from Thursday’s order.
“Given the emphasis on procedural issues in the separate statement from Justices Kavanaugh and Barrett, it’s hard to derive broader implications for anti-drag laws from the Court’s decision not to unblock Florida’s,” Vladeck noted. He added, “The only thing that seems clear is that three justices are already sympathetic to such laws. Whether there are two more votes to uphold them remains to be seen.”