Supreme Court Rejects Florida’s Request for Stay Against Decision Regarding Drag Ban

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 LGBTQspecific 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' 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 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.

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.