Supreme Court denies Florida’s request to enforce anti-drag law during appeal

The US Supreme Court on Nov. 16 denied the State of Florida’s request to enforce an anti-drag law while it appeals a district court ruling, dealing a setback to Governor Ron DeSantis’ relentless crusade against the LGBTQ community.

The decision represented the latest development in an ongoing legal challenge over a law that was signed by DeSantis in May and would make it illegal to “knowingly” admit a “child” to an “adult live performance.”

Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas sided with Florida, while Justices Brett Kavanaugh and Amy Coney Barrett — who voted to deny Florida’s request — issued a statement clarifying that they were not ruling on the constitutionality of the law.

The legal battle first emerged in the spring when the restaurant Hamburger Mary’s, based in Orlando, sued the state on First Amendment grounds, arguing the law could impact the restaurant because it hosts family-friendly drag events. District Court Judge Gregory Presnell issued a preliminary injunction to block the law and chastised the state for suppressing “the speech of drag queen performers.”

Florida had argued that a preliminary injunction would “harm the public by exposing children to ‘adult live performances,'” but the district court, which ruled in June, fired back, saying, “This concern rings hollow, however, when accompanied by the knowledge that Florida state law, presently and independently of the instant statutory scheme, permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian. Such R-rated films routinely convey content at least as objectionable as that covered” by the anti-drag law.”

After the district court issued the preliminary injunction, the state turned to the 11th Circuit Court of Appeals with a request to limit enforcement of the injunction rather than applying it statewide, according to Chris Geidner of LawDork, but when that request was denied, the state sought emergency relief with the Supreme Court.

In their brief statement, Kavanaugh and Barrett said granting a stay would require “a reasonable probability” that the court would rule in favor of the state, but “the state has not made that showing here.”

“To begin with, although Florida strongly disagrees with the district court’s First Amendment analysis, Florida’s stay application to this court does not raise that First Amendment issue,” the justices stated. “Therefore, the court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment.”

The justices continued: “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.”

The Supreme Court’s decision means the case will head back to the Court of Appeals, which will hear the appeal of the district court’s ruling.