A Florida law restricting drag shows in the state will remain blocked, the Supreme Court said Thursday, dealing a blow to a key initiative championed by Republican Gov. Ron DeSantis.
Florida asked the Supreme Court to narrow down a lower court order that had halted the law’s statewide implementation. The judges refused to do so.
Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would allow the law to go into effect.
In a brief statement concurring in the court’s ruling, Justices Brett Cavanaugh, joined in part by Justice Amy Coney Barrett, addressed the First Amendment complexities of the case and said the case was an “imperfect means” of resolving some of the issues at center of the dispute.
Florida Attorney General Ashley Moody argued that the law – dubbed the Child Protection Act – was designed to “prevent children from being exposed to sexually explicit live performances”.
The 2023 Act makes it an offense to knowingly allow a child to attend a sexually explicit live performance for adults that would be indecent for “the age of the child present”.
A district court judge blocked the law pending an appeal, finding it likely to violate the Constitution’s free speech and due process protections and to be unconstitutionally vague. The 11th U.S. Circuit Court of Appeals denied Florida’s emergency application to stay the district court’s order, triggering the state’s request to the Supreme Court for relief.
The law was originally challenged by a popular Orlando restaurant — Hamburger Mary’s — that hosts drag brunches and claims the new legislation has led to a loss of business.
Florida had asked judges to slightly narrow the statewide injunction so that the law could be enforced against any business except the restaurant challenging it.
“Florida is now in no position to impose its statue at the expense of Florida’s children and the state’s sovereign prerogative to protect them from harm,” Moody argued.
Moody further said that Hamburger Mary’s is not affected by the law because its shows are not sexually explicit.
The law has been a priority for DeSantis, who is running for the 2024 Republican presidential nomination.
The governor, in signing the law in May, said the state “is proud to lead the way in protecting our children.”
“As the world goes mad, Florida is a haven of sanity and a citadel of normality,” he said in a statement at the time.
A lawyer for Hamburger Mary’s told the Supreme Court that before the law was passed, none of its drag shows – consisting of comedy skits and dances – had an age limit.
After the law went into effect, the restaurant placed age restrictions on all of its performances except for one Sunday afternoon performance, tailored to the youngest audience possible, to avoid running afoul of the law.
As the district court temporarily blocked enforcement of the law, the restaurant returned to normal operations. His lawyer argued that if the court “silenced every other party in the marketplace of ideas,” it would “inherently limit” the restaurant’s free speech rights.
Challenges to the law continue in lower courts, and Steve Vladek, a CNN Supreme Court analyst and professor at the University of Texas Law School, cautioned against making broader implications of Thursday’s order.
“Given the emphasis on procedural issues in Justices Cavanaugh and Barrett’s separate statement, it’s hard to read any broader implications for anti-drag laws from the Court’s refusal to unblock Florida’s,” Vladek said.
“The only thing that seems clear is that three justices are already sympathetic to such laws. Whether there are two more voices to support them remains to be seen,” he added.
This story is current and will be updated.