In a surprise move, a 6 to 3 majority of the U.S. Supreme Court did something good for LGBTQ people: It rejected Florida’s request for a stay against a lower court decision—a stay that would have enabled the state to enforce its new law banning drag shows under certain circumstances.
The case, Florida v. Hamburger Mary, originated with a restaurant in Orlando that showcases numerous drag show events, including Family Nights. That activity was threatened in May when Republican Governor Ron DeSantis signed into law a five-bill package of legislation called the Let Kids Be Kids package. Four of the five parts attacked LGBTQ-specific needs. It banned gender-affirming medical care, prohibited LGBTQ-related topics in K-8 classrooms, required bathrooms and locker rooms to be used based on biological sex identified at birth, and it banned children from sexually explicit performances. Legislative debate made clear that the latter bill was aimed at drag shows.
The law banning kids from drag shows did not use the term “drag shows” or any LGBTQ-specific term. It defined the target of the legislation to be “adult live performance,” but the bill’s sponsor in the House said its purpose was to target drag shows, including those in various public places, such as “Drag Queen Story Time” at libraries, and drag performers at Pride events.
Hamburger Mary’s sued the state to protect its own right to conduct “family-friendly” drag shows and, on June 23, federal district court Judge Gregory Presnell rejected the state’s request to dismiss the restaurant’s lawsuit. He also granted the business’s request for a preliminary injunction to stop the state from enforcing the law against Hamburger Mary’s.
Judge Presnell said the Florida law was so vague it was “dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech….” He also noted that parents are allowed to take children to R-rated movies. And he blocked the state from “any” enforcement of the law against any venue until his court could deliberate on the merits of the lawsuit.
In a 2 to 1 vote on October 13, a panel of the 11th Circuit U.S. Court of Appeals upheld that temporary injunction. Florida immediately filed an emergency request to the U.S. Supreme Court, asking the justices to stay that injunction.
Things looked promising for Florida at first. Justice Clarence Thomas is the justice given responsibility for the 11th Circuit, and he could have granted the request himself. But instead, he referred the matter to the full court.
On November 16, the Supreme Court issued a three-page response. In a 6 to 3 vote, the justices denied Florida’s request for an emergency stay.
“The Supreme Court did the right thing by leaving the injunction in place, but it’s unnerving that three justices dissented,” said Shannon Minter, legal director for the National Center for Lesbian Rights.
Justice Brett Kavanaugh, writing for the majority, said to win a stay on the lower court’s injunction, Florida would have to show “a reasonable probability” that the Supreme Court would eventually grant a request on the question presented by the stay application.
“The State has not made that showing here,” wrote Kavanaugh. Joining Kavanaugh in rejecting the request for a stay were Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Jackson. Voting to grant the injunction were the court’s most reliable right-wing conservatives: Justices Thomas, Samuel Alito, and Neil Gorsuch.
Kavanaugh made clear that the majority, in rejecting the stay, was not making any comment about the district court judge’s statement that the law likely violates the First Amendment. Instead, he wrote, the rejection was based on a more technical question: whether the district court judge had the authority to block enforcement of the law against any venue beyond Hamburger Mary’s.
Meanwhile, in other recent Supreme Court developments, the ACLU and Lambda Legal appealed a case to the Supreme Court on November 2 that asks the justices to uphold a preliminary injunction to stop enforcement of a Tennessee law. The Tennessee law bans current and future gender-affirming medical care for young people. In the Tennessee case, the pro-LGBTQ legal team argues that the ban on gender-affirming medical care “likely violates the fundamental right of parents to make decisions concerning the medical care of their children.”
In L.W. v. Tennessee, the groups lost their appeal to the Sixth Circuit U.S. Court of Appeals and have, thus, brought the appeal to the U.S. Supreme Court.
Tennessee’s law bans the prescription of gender-affirming medication for gender dysphoria if it is prescribed to enable a person to live as a gender not designated on the person’s original birth certificate.
The groups represent three transgender youth and their parents, as well as a physician. The young people all suffered “severe distress from gender dysphoria” and obtained relief through medication.
“Tennessee and 20 other states have banned these treatments altogether, forcing families to upend their lives and move out of state to ensure that their children get the medical treatment they need,” states the ACLU-Lambda petition.
“I hope that LGBT people across this country recognize that never in our lifetimes have we been in such danger of losing basic freedoms,” said Minter. “We are fighting in the courts, but we must face up to the stark reality that our nation’s highest court is highly unlikely to be a reliable defender of our rights. Any LGBT person who is not intensely focused on the upcoming elections does not understand the gravity of the situation.”
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