The Supreme Court on Friday declined to get involved in a First Amendment challenge to a drag show ban. It was the second time the court has refused to step into a drag controversy this term.
Students at West Texas A&M University went to the high court after two lower courts refused to act in time to save a student drag show scheduled on campus for March 22. They asked for emergency intervention, claiming a clear violation of their rights to free speech.
Last November, Supreme Court also refused to intervene when the state of Florida asked it to temporarily reinstate its anti-drag show law. At that time Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. This time there were no noted dissents.
The student group will likely have to move its show off campus this year while it waits for a hearing from the Fifth Circuit Court of Appeals, widely viewed as the most conservative federal appeals court in the country.
University President Walter Wendler first blocked the LGBTQ+ student organization from using a campus performance hall to host a drag show last March. In an email to the student body explaining his decision, Wendler called drag contrary to the "basis of Natural Law," as well as "derisive, divisive, and demoralizing." He said the "ideology" underlying drag shows is demeaning to women and could not be condoned by the university.
Wendler seemed to understand that denying public university resources to a group based on the content of the performance violated the law, writing that he would not allow the drag show to go forward on campus "even when the law of the land appears to require it."
But when the students went to court, they ran into district court judge Matthew Kacsmaryk. Before his judicial appointment by former President Donald Trump, Kacsmaryk publicly opposed including protection for LGBT individuals in anti-discrimination laws and called homosexuality "disordered" in an op-ed.
Kacsmaryk denied the students' request for emergency relief, and the group had to move their 2023 show off campus. After allowing time for briefing in the case, Kacsmaryk again ruled against the students six months later. He said drag "does not obviously convey or communicate a discernable, protectable message," so it does not qualify for First Amendment protection.
A different Texas district court judge ruled last September that a statewide law restricting drag shows was "an unconstitutional restriction on speech."
Texas argued that the law is "not indisputably" on the students' side, claiming drag shows are not inherently expressive, so they do not merit automatic First Amendment protection. One of the state's filings asserted that when muted, recordings of drag performances appear indistinguishable from one another.
Lawyers for the student group caustically responded with a question: How could drag convey all of the horrible messages university President Wendler described if it didn't express any message at all? That question, at least for now, will not be debated in the Supreme Court.
