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A federal appellate court has upheld a Texas ban on sexually explicit drag shows for minors, instructing a lower court to consider U.S. Supreme Court precedent as litigation surrounding the law continues.
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In a decision last week, the 5th U.S. Circuit Court of Appeals upheld an earlier ruling allowing Texas Senate Bill 12, which prohibits the performance of “sexually oriented performers” in the presence of minors. Wednesday’s opinion denied the plaintiffs’ request for a rehearing of the case three months after the federal appellate court sided with the state of Texas and allowed it to enforce the law.
Wednesday’s opinion found that four of the five plaintiffs who challenged Senate Bill 12 did not have standing. It concluded that The Woodlands Pride, Inc. and the Abilene Pride Alliance did not have standing because their performances do not include content explicitly banned by the law, while Extragrams, LLC and drag performer Brigitte Bandit do not regularly perform in any of the jurisdictions named as defendants in the lawsuit.
Defendants in the lawsuit are Texas’ Republican Attorney General Ken Paxton, Montgomery County and Taylor County and their respective district attorneys as well as the city of Abilene.
While one plaintiff, 360 Queen Entertainment, LLC, was determined to have standing against Paxton, the court rejected the challenges to the law based on alleged violations of the Free Speech Clause of the First Amendment to the U.S. Constitution and unconstitutional vagueness in violation of the First and 14th Amendments.
The appellate court ordered the U.S. District Court for the Southern District of Texas, which issued a ruling siding with plaintiffs, to rehear the case based on existing U.S. Supreme Court precedent related to the constitutional provisions at issue.
Mat Staver, president of the Christian conservative legal organization Liberty Counsel, praised the court’s decision.
“Texas’ Senate Bill 12, and other state laws like it, protect children from sexually explicit performances,” Staver said in a statement.
“The First Amendment has never protected obscenity directed at children. Laws like this reflect a long-standing principle in constitutional law that the state and parents have the authority to protect a child’s innocence from obscene material. Protecting children is not censorship; it is a duty of common decency.”
ACLU of Texas Staff Attorney Brian Klosterboer was critical of the court’s decision.
“The 5th Circuit’s decision does not fully address the district court’s well-reasoned analysis for why the Texas Drag Ban is unconstitutional under five independent grounds,” Klosterboer said in a statement. “While allowing this law to take effect for the first time, the 5th Circuit made clear that family-friendly and all-ages drag shows remain fully legal in Texas.”
“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” he added. “Because this law remains unconstitutional, we look forward to continuing this case before the district court and encourage anyone who is impacted by the law to reach out to us.”
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This article was originally published at The Christian Post. Photo Credit: Soho A Studio via Canva Teams.
