Florida's ban on kids attending drag shows remains blocked after Supreme Court declines to intervene
The U.S. Supreme Court has refused to lift an injunction that prevents Florida from enforcing a ban on children attending drag shows. An Orlando, Florida, restaurant called Hamburger Mary’s had challenged a Florida law called the Protection of Children Act under the First Amendment. Photo from Shutterstock.
The U.S. Supreme Court on Thursday refused to lift an injunction that prevents Florida from enforcing a ban on children attending drag shows.
The Supreme Court refused to intervene after a federal judge ruled that the Protection of Children Act was likely unconstitutional and enjoined its enforcement. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have allowed Florida to enforce the law against nonparties to the litigation.
The Protection of Children Act imposes fines when businesses knowingly expose children to an “adult live performance.” The law defines an “adult live performance” to include live shows that depict or simulate nudity, sexual activities, lewd conduct or “lewd exposure of prosthetic or imitation genitals or breasts.” The law has been interpreted as a ban on children attending drag shows.
Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett except for a footnote, issued a statement on the Supreme Court’s denial of Florida’s request.
An Orlando, Florida, restaurant called Hamburger Mary’s had challenged the law under the First Amendment. Florida had asked the Supreme Court for a stay of the district judge’s injunction during its appeal.
Kavanaugh said Florida’s stay application before the Supreme Court did not raise First Amendment issues. Instead, it challenged the district judge’s decision to ban Florida from enforcing the law against all businesses, rather than Hamburger Mary’s alone.
For the Supreme Court to grant a stay pending appeal, a party must show a reasonable probability that the court would eventually grant cert on the question presented in the stay request. The Supreme Court is not likely to grant cert to decide the scope of the injunction in the Hamburger Mary’s case, Kavanaugh said, because it arises in the context of an overbreadth challenge, “which presents its own doctrinal complexities about the scope of relief.”
Kavanaugh said the scope-of-relief issue is important in constitutional challenges and may warrant review in the future. But the Hamburger Mary’s case is “an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against nonparties to the litigation,” Kavanaugh wrote.