Florida’s law will remain on hold while an appeal proceeds before the 11th Circuit.
The Supreme Court turned away Florida’s request to reinstate its law regulating drag shows, which has been blocked by the lower courts.
The new order came at the end of the business day on Nov. 16.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, indicating they would have lifted the lower court’s stay. They did not explain their reasoning.
Justices Brett Kavanaugh and Amy Coney Barrett voted to maintain the stay. Justice Kavanaugh attached a statement (pdf) explaining his reasoning, which Justice Barrett joined except for a footnote discussing the applicability of the federal Administrative Procedure Act to the case.
“The Court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment,” the justices stated.
This is not necessarily the end of the matter at the Supreme Court. It could return to the court at a later date.
The emergency application in Griffin v. HM Florida-ORC LLC (court file 23A366) was docketed by the Supreme Court on Oct. 24. The petitioner, Melanie Griffin, is secretary of the Florida Department of Business and Professional Regulation. The respondent, HM Florida-ORC LLC, operates a Hamburger Mary’s restaurant and bar.
Florida Gov. Ron DeSantis, who is running for the Republican Party’s presidential nomination, signed the law in May.
The law was preliminarily enjoined in June by Judge Gregory Presnell of the U.S. District Court for the Middle District of Florida. Judge Presnell was appointed in 2000 by President Bill Clinton.
The district court acted after finding it “likely” that the statute “could not survive strict scrutiny because it did not employ sufficient narrowly tailored means to further the state’s compelling interest in protecting minors from obscene performances,” the judge wrote in an order.
That court also found it “likely that the language of the Act, which included terms like ‘lewd conduct’ and ‘lewd exposure of prosthetic or imitation genitals or breasts,’ was unconstitutionally vague and overbroad on its face.”
The court acted to prevent Floridians from being “exposed to the chilling effect of this facially unconstitutional statute.”