Block on Texas Drag Show Law Overturned, Pending Analysis (1)

A Texas law banning drag shows performed in the presence of minors was blocked prematurely, a panel of Fifth Circuit judges said Thursday, calling for proper constitutional analysis of the law.

The Fifth Circuit invalidated the injunction granted by a lower court, pending a review of all applications of the law to see which are unconstitutional and which are lawful.

“The district court did not conduct this analysis, nor did the parties brief the proper standard or adequately develop the record,” Judge Kurt D. Engelhardt wrote in the opinion. “Consequently, we are unequipped to undertake this task in the first instance, and remand for the district court to do so.”

Only if the unconstitutional parts outweigh the constitutional ones is the law invalid, the judges said.

Texas’ S.B. 12 bans commercial enterprises from hosting sexually-oriented performances in the presence of anyone under 18. Another section, which authorize municipalities and counties to regulate the performances, can’t be challenged because the only remaining defendant, Texas Attorney General Ken Paxton (R) doesn’t enforce it. Nor does Paxton enforce a third section, which makes engaging in a performance on public property in the presence of a minor a misdemeanor.

The trial court injunction prevented the law from taking effect after Gov. Greg Abbott (R) signed it in September 2023.

“Today’s decision is heartbreaking for drag performers, small businesses, and every Texan who believes in free expression,” American Civil Liberties Union of Texas, which represents the plaintiffs, said in a statement.

The group vowed to continue litigating “until this unconstitutional law is struck down for good.”

In a partial dissent, Judge James Dennis said four plaintiffs dismissed by the majority for lacking standing should be allowed to continue. Their conduct in hosting and performing in shows arguably falls under the law’s definition of a sexually-oriented performance, Dennis said.

“Worse still, the majority intimates in passing that it harbors ‘genuine doubt’ whether Plaintiffs’ drag performances are protected First Amendment expression,” Dennis said. “That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand.”

Only the drag production company 360 Queen Entertainment can proceed with the facial challenge because its performance have contained nudity and have been attended by children, the majority said.

The move to erase the injunction squares with remarks some of the judges made during oral arguments in October 2024. Engelhardt, a Trump appointee, compared the drag show ban to movie ratings that lawfully bar children from attending films that contain adult content.

The plaintiffs are represented by American Civil Liberties Union of Texas and Baker Botts LLP.

Texas is represented by the state attorney general’s office.

The case is Woodlands Pride v. Paxton, 5th Cir., No. 23-20480, 11/6/24.