Supreme Court Declines To Reinstate Red State Law Banning Children From Drag Shows

The Supreme Court declined Thursday to reinstate Florida’s law making it illegal to admit children to drag shows.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented from the decision to deny Florida’s request to reinstate the law, which subjects businesses that “knowingly” admit children to “adult live performances” to potential fines or the revoking of their business licenses. Justice Brett Kavanaugh wrote in a statement joined by Justice Amy Coney Barrett that the denial “indicates nothing about our view on whether Florida’s new law violates the First Amendment.”

Florida’s application “does not raise that First Amendment issue,” he wrote.

“Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation,” Kavanaugh wrote.

A federal judge issued a preliminary injunction in June that blocked Florida’s Protection of Children Act, finding the law likely violates the First Amendment.

Melanie Griffin, secretary of the Florida Department of Business and Professional Regulation, filed an emergency application with Justice Clarence Thomas in October asking the Supreme Court to reinstate the law.

Kavanaugh said that the question of whether a district court can “enjoin the government from enforcing that law against non-parties to the litigation” after finding a law unconstitutional is an important one but not one the Court would address in this case.

“[T]he issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief,” he wrote. “This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation.”