Kacsmaryk lets Texas campus drag ban stand in ruling that breaks with others

Citing far-right sources, the far-right judge refused to block the university from banning drag shows. Also: Still no ruling on the "religious-liberty training" sanctions.

U.S. District Judge Matthew Kacsmaryk is back in the news.

The Trump appointee who previously tried to ban one of two drugs used in medication abortion across the nation on Thursday evening issued a preliminary ruling siding with a public Texas university president who banned a student group from hosting a charity drag show on campus.

It’s an extremely troubling decision on several grounds that runs counter to decisions in Tennessee, Florida, Utah, and Montana. Kacsmaryk unquestioningly repeated West Texas A&M University president Walter Wendler’s comparison of drag to blackface to start off the opinion and cited later in his opinion to the far-right, anti-transgender “Gays Against Groomers” group and to anti-CRT, anti-LGBTQ activist Christopher Rufo for their views on drag.

Unlike any other judge to address these issues in the past year since conservatives decided to start attacking drag, Kacsmaryk just went along with the anti-queer arguments, adding in his own when needed to justify his decision.

On the substance, Kacsmaryk found that Wendler did not violate any clearly established right in sending an email to everyone on campus asserting that the school “will not” host a drag show on campus because he thinks drag shows are contrary to “Natural Law” and despite the fact that “the law of the land appears to require” him not to censor the student group in this way.

Kacsmaryk dismissed claims that drag shows have any “intentional and overwhelmingly apparent” message, dismissed claims that this was content-based discrimination, dismissed claimed protections for “expressive activity” by finding that this is “sexualized conduct” that could be regulated differently, and pointed to Wendler’s claimed protection of women in banning drag as a “countervailing” policy interest.

In discussing these arguments, here is where Kacsmaryk apparently looked on his own for extreme anti-LGBTQ information to cite, as it wasn’t in either set of university parties’ briefs.

First, he cited to Gays Against Groomers as evidence(?) that the “overwhelming majority of gay people” oppose “drag queen story hours [and] drag shows involving children.”

And, then he cited to Rufo for evidence(?) that “similar[]” events contained “highly sexualized content”:

Neither citation appears in the briefs submitted by Wendler or by the other university system officials.

Kacsmaryk also found that, even if there were First Amendment rights involved, Wendler’s decision wasn’t “objectively unreasonable.” This, despite the fact that Wendler basically said in the email that he knew it was unreasonable. Here’s how Kacsmaryk dealt with that:

The findings that Wendler did not violate a “clearly established right” and that it was not “objectively unreasonable” meant that Kacsmaryk decided the group could not sue Wendler in his individual capacity.

As to being sued in his official capacity, which would allow forward-looking relief like an injunction, Kacsmaryk did not dismiss the case. He also refused to dismiss two other officials sued.

At the same time, though, he quickly went on to deny the plaintiffs’ request for a preliminary injunction against those three officials — essentially relying on his earlier stated ruling about constitutional protections for drag to rule that the plaintiffs aren’t likely to succeed on the merits of their case and then adding that the next drag show wasn’t scheduled until March 2024, so, they wouldn’t face harms now by not getting an injunction.

It’s an extremely biased ruling by a judge who has established that he does not care about being overturned — even by the most conservative appeals court in the nation.

Still no decision on the religious-liberty training order

As of 4:00 p.m. ET Friday, the U.S. Court of Appeals for the Fifth Circuit is yet to take action on Southwest Airlines’ request for a stay of a district court’s sanctions order that requires three of the airlines’ lawyers to attend “religious-liberty training” by the far-right legal advocacy organization, Alliance Defending Freedom.

The training is scheduled to take place four days from now: Sept. 26.

After an administrative stay expired last weekend, the sanctions order has remained in effect with no action from the appeals court all this week.

The plaintiff in the underlying religious discrimination lawsuit against Southwest had filed her opposition to a stay pending appeal on Monday. She does not, however, oppose an administrative stay if needed so the court can consider Southwest’s request.

Southwest filed its reply on Friday:

As Southwest noted, time for action is running short.

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More Thomas news

On Friday morning, Pro Publica published a report about Justice Clarence Thomas secretly attending two of the Koch network’s donor events.

From Pro Publica:

Thomas has attended Koch donor events at least twice over the years, according to interviews with three former network employees and one major donor. The justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving.

That puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court, including one of the most closely watched of the upcoming term.

Read the whole thing.