Supreme Court keeps pause on Florida law targeting drag shows  

WASHINGTON (CN) — The Supreme Court on Thursday declined to grant Florida emergency relief to enforce restrictions on drag shows. 

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch publicly dissented from the order. The majority did not provide an explanation for denying the state's application, but Justice Brett Kavanaugh — joined by Justice Amy Coney Barrett — wrote a statement respecting the court’s denial. 

Kavanaugh expressed interest in reviewing the issues presented by Florida’s application but ultimately said the case was not the right opportunity to review those matters. 

Florida asked the justices to narrow a lower court ruling barring enforcement of the Protection of Children Act. A federal judge blocked the law in June, finding it improperly targeted drag shows. The state wanted the high court to limit that ruling to allow Florida to enforce the law on establishments not involved in the lawsuit. 

Kavanaugh said there is no law empowering lower courts to divide injunction enforcement by parties not included in litigation before it. 

“The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future,” the Trump appointee wrote. “But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.” 

The Protection of Children Act purports to prevent minors from attending “adult live performances” despite Florida’s existing laws barring children from viewing sexually explicit materials. It was signed alongside other bills targeting the LGBTQ+ community that banned gender-affirming care for minors, and restricted discussions of preferred pronouns and bathroom preferences. State Representative Randy Fine, the bill’s sponsor, said the law aimed at prohibiting drag queen storytime events, which he described as “gateway propaganda.” 

Hamburger Mary’s, which has hosted drag-centric performances for over a decade in Florida, sued to bar the law. The restaurant claims the Protection of Children Act is unconstitutional because it violates Hamburger Mary’s free speech rights. Fearing retribution, Hamburger Mary’s prohibited children from any of its performances, resulting in the cancellation of 20% of its bookings. 

Florida has attempted to retaliate against other businesses for hosting drag performances. A hotel faced accusations of violating public nuisance, lewdness, and disorderly conduct laws in 2022 for hosting “A Drag Queen Christmas.” Another restaurant lost its liquor license after hosting a drag queen brunch. 

U.S. District Judge Gregory Presnell blocked enforcement of the law in June, finding it was likely unconstitutional. Florida asked the Supreme Court to limit that ruling, arguing it was too broad. 

“Even if such performances violated the statute, all Hamburger Mary’s needs to remedy its alleged injury is an injunction precluding the state from enforcing the statute against Hamburger Mary’s,” Henry Whitaker, Florida’s solicitor general, wrote. “Extending that relief to others not before the court did nothing to alleviate Hamburger Mary’s asserted injury and exceeded the district court’s remedial authority.” 

Hamburger Mary’s said Florida asked the Supreme Court to do something no other court has done before: limit injunctive relief to parties before the court. The restaurant also says the state’s laws prohibiting children from viewing sexually explicit materials should be enough to protect children while the law remains paused. 

The restaurant says other establishments will face the exact same harm as Hamburger Mary’s should the law be enforced. 

“HM does not operate its restaurant and present its performances in a vacuum,” attorney Donald Donati with Donati Law, representing the restaurant, wrote. “The artists who perform at HM’s establishments perform in other venues across the state of Florida. If the injunction were limited to HM, other establishments could be subject to penalties under the Act for the same performances by the same performers.” 

The restaurant argued allowing Hamburger Mary’s to enjoy injunctive relief while other establishments have to abide by the law would chill competition. 

“HM’s establishment would become the only business in the state of Florida where performers have the freedom of speech and expression guaranteed by the First Amendment,” Donati wrote. “A stay would chill creative competition and public conversation through performance art. That scenario is far from the ‘uninhibited marketplace of ideas’ this court has consistently sought to protect.” 

Follow @KelseyReichmann

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