Pointing to a recent U.S. Supreme Court decision, the DeSantis administration has renewed a request that would allow at least temporary enforcement of a Florida law aimed at preventing children from going to drag shows.
Attorneys for the state last week filed a motion at the 11th U.S. Circuit Court of Appeals that, if granted, would allow almost-statewide enforcement while a fight about the constitutionality of the law continues to play out.
The only business shielded from enforcement, under the state’s motion, would be Hamburger Mary’s, a Central Florida establishment that filed a lawsuit challenging the law. U.S. District Judge Gregory Presnell in 2023 sided with Hamburger Mary’s and issued a preliminary injunction to prevent enforcement statewide — a decision upheld in May by a three-judge panel of the Atlanta-based appeals court.
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The state in June asked for a rehearing on the injunction by the full appeals court, a request that remains pending. Lawyers in Attorney General James Uthmeier’s office last week filed a motion for a stay of the injunction to allow at least temporary enforcement of the law while the battle continues.
A panel of the appeals court and the U.S. Supreme Court in 2023 rejected such a stay request. But last week’s renewed request focused on a June 27 U.S. Supreme Court decision that barred what is known as a “universal” injunction in a case about President Donald Trump’s attempt to end birthright citizenship.
A universal injunction in the birthright-citizenship case would have applied nationwide. But lawyers in Uthmeier’s office contend the same reasoning should prevent a statewide injunction in the drag show case. As a result, the state wants a stay that would narrow the injunction to only apply to blocking enforcement against Hamburger Mary’s.
“Such a stay will fully protect HM’s (Hamburger Mary’s) rights for the remainder of this appeal while allowing the state to enforce its duly enacted statute geared at protecting children in other establishments in the state,” the motion said.
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The motion also contended that the U.S. Supreme Court ruling in the birthright-citizenship case “clarified that authority was lacking not just for nationwide injunctions against federal statutes or executive orders, but also for statewide injunctions against state laws, like the one at issue in this case.”
The state law, passed in 2023, sought to prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
It would allow regulators to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.
While the law did not specifically mention drag shows, it came after the DeSantis administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also came amid a series of controversial laws passed by Republicans in Florida and other states about transgender-related issues.
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But in issuing the preliminary injunction, Presnell wrote that the law “is specifically designed to suppress the speech of drag queen performers” and the state “already has statutes” that protect children from seeing obscene performances.
“Defendant professes that a statewide preliminary injunction would ‘harm the public by exposing children to ‘adult live performances,’” Presnell wrote. “This concern rings hollow, however, when accompanied by the knowledge that Florida state law, presently and independently of the instant (2023) 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 2023 law).”
Hamburger Mary's, which closed its downtown Orlando location last summer, says it is in the process of relocating to a former dinner theater building on U.S. 192 in Kissimmee.
