Court finds Texas drag show law unconstitutional. ‘Long live Texas drag!’ TX ACLU says
A new Texas law restricting drag performances in front of children is unconstitutional, a federal court in Houston ruled Tuesday.
“VICTORY: A federal judge has declared Texas’ drag ban unconstitutional,” the ACLU of Texas said in a social media post. “LGBTQIA+ Texans, venue owners, performers, and our allies all came together to uphold free expression in our state — and we won. This work isn’t done but for now we celebrate. Long live Texas drag!”
The policy had been temporarily blocked from taking effect ahead of its Sept. 1 start date.
The Office of the Attorney General plans to appeal the ruling, a spokesperson said in an email late Tuesday.
“#SB12, which restricts children from being exposed to drag queen performances, is about protecting young children and families,” Lt. Gov. Dan Patrick said in post on X, formerly called Twitter, Tuesday afternoon. “This story is not over.”
U.S. District Judge David Hittner found that the law violates the First Amendment, the right to free speech. Attorney General Ken Paxton and other defendants in the case cannot enforce the law, Hittner wrote in his order.
“Not all people will like or condone certain performances,” the order reads. “This is no different than a person’s opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection. However, in addition to the pure entertainment value there are often political, social, and cultural messages involved in drag performances which strengthen the Plaintiffs position.”
The law bars businesses from hosting “sexually oriented” performances when a minor is present.
The bill doesn’t reference drag shows or performers explicitly, but says “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” is considered “sexual conduct.” The Houston judge found that the bill doesn’t mention drag shows, but there’s language and legislative history indicating it targets the performances.
Opponents have also argued that the bill’s broadness could affect other types of shows, like cheerleading and theater performances.
Fort Worth Republican Rep. Nate Schatzline defended the law in a post on X.
“There is an ALL OUT attack against legislation that protects children!” Schatzline said. “We’re JUST GETTING STARTED!”
The challenge to the state law was brought by the ACLU of Texas and other plaintiffs against the Texas attorney general, the city of Abilene, the district attorney in Bexar County, the county attorney in Travis County, and Montgomery County and Taylor County and their district attorneys.
Other officials not named in the lawsuit could try to enforce the law, but that case would likely end up challenged in court — a challenge that would likely be successful, said ACLU of Texas attorney Brian Klosterboer. Judge Hittner also noted in a footnote of his ruling that a final judgment finding the law unconstitutional and barring the Texas Attorney General from enforcing it “binds all state and local governmental actors commanded or authorized to act under it.”
“We think the court order today is incredibly strong and really demonstrates exactly how and why SB 12 is so clearly unconstitutional,” Klosterboer said. “So we believe it would be a waste of state resources and taxpayer dollars for the attorney general’s office to appeal. But we are fully prepared to defend this court ruling and further explain why SB 12 is constitutional, if they choose to appeal.”
The suit is separate from a similar lawsuit aiming to block the law where the North Texas Gay Lesbian Bisexual Transgender Chamber of Commerce is a plaintiff.
“We’re going to stay on top of it, and we’ll pursue every legal avenue that we can to make sure that it is blocked,” said Tony Vedda, the chamber’s president.
This story was originally published September 26, 2023 at 3:41 PM.
