The U.S. Court of Appeals for the Fifth Circuit issued a ruling today (Thursday, Nov. 6) reversing a lower court ruling that had declared Texas Senate Bill 12 — aka the drag show ban — unconstitutional, according to a press release from the ACLU of Texas.
In a joint statement released after the ruling the ACLU of Texas and the plaintiffs in the case said:
“Today’s decision is heartbreaking for drag performers, small businesses and every Texan who believes in free expression. Drag is not a crime. It is art, joy and resistance — a vital part of our culture and our communities.
“We are devastated by this setback, but we are not defeated. Together, we will keep advocating for a Texas where everyone — including drag artists and LGBTQIA+ people — can live freely, authentically and without fear. The First Amendment protects all artistic expression, including drag. We will not stop until this unconstitutional law is struck down for good.”
ACLU of Texas and Baker Botts LLP filed the lawsuit in August 2023 on behalf of The Woodlands Pride, Abilene Pride Alliance, Extragrams LLC, 360 Queen Entertainment LLC and drag performer Brigitte Bandit of Austin.
A federal district court issued a permanent injunction blocking the law two years in the case The Woodlands Pride, Inc., et al, v. Warren Kenneth Paxton, et al, ruling that the law targeting drag performers and shows violated the U.S Constitution under five different grounds. But today’s Fifth Circuit ruling sends the case back to district court for “further analysis” on one of those five issues, the ACLU of Texas press release explains. The Fifth Circuit did not, however, address anything related to the other four issues on which the trial court had based its ruling.
The Fifth Circuit court ruling explained that since SB 12 only applies to drag shows that are “sexually oriented” and “erotic,” and that the shows featured at The Woodlands Pride and at Abilene Pride festivals “did not meet this standard and remain fully legal.”
Shows that are “sexual in nature” and are performed in front of minors, however, can result in fines and even jail time for the performers and in fines for venues hosting such shows.
Today’s Fifth Circuit ruling allows SB 12 to take effect for the first time since it was passed by the 88th Texas Legislature and signed into law by Gov. Greg Abbott. The trial court’s injunction remains in place, however, for prosecutors in Travis County and Bexar County since they did not appeal, the ACLU of Texas press release said, and the district court’s reasoning for why S.B. 12 is unconstitutional has not been disturbed.
The legal team is “exploring next steps as this case continues,” the press release added.
Other lawsuits
The Texas Civil Rights Project filed a second lawsuit, VORTEX Repertory Company v. Colmenero, on Aug. 3, 2023, but that lawsuit was terminated on Aug. 14. Plaintiffs in that case included VORTEX Repertory Co., Brock England, Mark Ivy, Jamie Brokaw, Oktavea Williams, The Greater Houston LGBT Chamber of Commerce, the San Antonio LGBT Chamber of Commerce and the North Texas LGBT Chamber of Commerce.
In March of 2023, Spectrum, an LGBTQ+ student group West Texas A&M University in Canyon, Texas, filed suit against West Texas A&M President Walter Wendler after Wendler forced the cancellation of a charity drag show Spectrum had scheduled at a university venue.
That case was filed in U.S. District Court for the Northern District of Texas and assigned to Judge Matthew J. Kacsmaryk, who was appointed to the bench in 2017 by Donald Trump.
Kacsmaryk — widely considered to be overtly partisan and right wing and a favorite of right wing organizations and elected officials who go “judge shopping” to make sure cases go their way — in September 2023 granted the defendants’ motion to dismiss the case in part. He also denied the plaintiffs’ motion for a preliminary injunction that would have lifted Wendler’s rule.
Spectrum appealed Kacsmaryk’s ruling to the Fifth Circuit Court of Appeals. In August this year, the Fifth Circuit ruled that Wendler’s drag ban was, indeed, an unconstitutional content-based restriction on speech and that drag performances qualify as expressive conduct protected by the First Amendment, even if they do not have a specific political message, and that the university’s ban on the events was unconstitutional. The court also issued a preliminary injunction that allows drag shows to proceed while the case continues.
— Tammye Nash
