Supreme Court denies Florida's request to enforce anti-drag law during appeal

A district court judge found Florida's new law likely unconstitutional after Hamburger Mary's of Orlando sued. Florida's underlying appeal will continue.

The Supreme Court will not allow Florida to enforce its new anti-drag law while it appeals a district court loss.

Under a Supreme Court order issued Thursday afternoon, the district court’s preliminary injunction against enforcement of the law — which bars state officials from enforcing the law statewide — will remain fully in effect for now.

Justices Clarence Thomas, Sam Alito, and Neil Gorsuch noted that they would have granted Florida’s request, but they gave no further explanation for their votes.

The court itself gave no reasoning for its decision, either.

Only Justice Brett Kavanaugh, joined (for the most part) by Justice Amy Coney Barrett, said anything about their decision on the request. Noting that Florida’s request wasn’t focused on the First Amendment questions at issue in the case, Kavanaugh explained how the procedural peculiarities of Florida’s request led him to conclude that “it is appropriate for the Court to deny the application.”

As such, the law will remain unenforceable while the U.S. Court of Appeals for the Eleventh Circuit considers Florida’s appeal.

But first, what’s going on?

Hamburger Mary’s of Orlando brought the underlying lawsuit against state officials, claiming a fear that their drag events — some of which are intended for all ages — could lead officials to seek to enforce the new law, S.B. 1438, against the restaurant. The law permits penalties up to license revocation and misdemeanor criminal charges for violations.

Florida is appealing the preliminary injunction ruling to the Eleventh Circuit, but it also asked for a partial stay of the preliminary injunction during the appeal. The state had not asked to enforce the law against Hamburger Mary’s of Orlando during the appeal, but it did seek an order limiting the injunction just to the plaintiff restaurant — arguing, in part, that the district court lacked the authority to bar the state from enforcing the law against non-parties.

In other words, the state wanted to be able to keep enforcing the law against anyone else during the appeal, even though the district court ruling found that the law — purportedly applying to “adult live performances” — was likely unconstitutionally overbroad. U.S. District Judge Gregory Presnell then found that that ruling justified his issuing an injunction against any enforcement of the law due to the particular concerns that such a law poses under the U.S. Constitution.

Both Presnell and the Eleventh Circuit rejected Florida’s request for a partial stay of the preliminary injunction during the appeal, with the Eleventh Circuit rejecting the state’s request on October 11.

Florida Attorney General Ashley Moody then went to the Supreme Court on Oct. 19, again asking for a partial stay.

The Supreme Court rejected that request on Thursday.

What did Kavanaugh write?

In Kavanaugh’s statement, joined by Barrett, he explained that, under the court’s standards for a stay pending appeal, the applicant — here, Florida — must show “‘a reasonable probability’ that this Court would eventually grant certiorari on the question presented in the stay application.“

Here, though, Florida hasn’t raised the underlying First Amendment question in the litigation in its stay request. Instead, “Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation.”

In other words, Kavanaugh and Barrett are noting that they do not view Thursday’s ruling as saying anything about the underlying constitutionality of Florida’s law.

With that out of the way, Kavanaugh noted that the question of whether a district court can “enjoin the government from enforcing [a] law [it found unconstitutional] against non-parties to the litigation” is one that is “important” and that the court could review in the future.¹ Here, though, he acknowledged that the overbreadth issue “presents its own doctrinal complexities about the scope of relief.” As such, he wrote that this case is “an imperfect vehicle” for resolving the broader question about district court injunctions.

And thus, because the court is unlikely to review the issue raised here, Kavanaugh concluded that “it is appropriate for the Court to deny the application” under the court’s standards for granting a stay pending appeal

In short, although a lot of complicated language and procedure are involved here, the bottom line is that the underlying lawsuit remains on appeal — and open for debate — but Florida is not allowed to enforce the law against anyone for the time being.

This is a breaking news report. Check back at Law Dork for the latest.

1. There was a brief aside — a footnote — that Kavanaugh wrote that Barrett did not join. It was a reference to litigation under the Administrative Procedure Act.

This is notable for its implications in other litigation (I’m thinking about the mifepristone litigation, but certainly other cases as well), as well as for the fact that Kavanaugh is referring to an article written by Jonathan Mitchell — the former Texas solicitor general who is now in private practice and behind a number of right-wing lawsuits — as a “leading article,” but it is an aside.