In a blow to those who believe the First Amendment applies to everything except glitter, the Supreme Court on Monday decided not to revive a Tennessee law that would have restricted drag shows in public spaces. The law had already been struck down by a lower court for being, in perhaps too many words, unconstitutional. After all, America is many things, but allergic to sequins is not one of them.
The Tennessee law in question aimed to prohibit “adult cabaret performances”—a phrase so economically uncomfortable it could only have been invented by a legislature with a thesaurus and a moral panic. The language categorized drag shows alongside strip clubs and other adult entertainment and sought to limit their appearance in public venues or near children. One could be forgiven for thinking Tennessee lawmakers had stumbled upon a RuPaul marathon and mistaken it for a satanic ritual with better lighting.
U.S. District Judge Thomas Parker, a Trump appointee who proved that even ideologically handpicked judges can sometimes still read the Constitution, struck the law down in June 2023. He called the statute “both unconstitutionally vague and substantially overbroad,” which is legalese for “this law has no idea who it is targeting and yet is aiming at everyone at once.” Judge Parker added that the government “cannot categorically ban a form of entertainment just because it may be offensive to some.” If offense were grounds for legal prohibition, one presumes most stand-up comedians would be removed from circulation.
The state of Tennessee, not one to take judicial rebukes lying down unless it involves reclining in a Victorian fainting couch of moral indignation, appealed the decision. They brought the matter to the Sixth Circuit Court of Appeals, which allowed the law to remain unenforceable while they considered its merits. Tennessee then asked the U.S. Supreme Court to intervene and lift the injunction immediately, which the Court declined to do quietly and without further commentary, proving once again that even the highest court in the land occasionally chooses silence over bad theater.
This decision does not necessarily mean the law is dead forever, only that it will continue its slow and likely doomed journey through the federal court system. In the meantime, drag performers in Tennessee can continue doing exactly what they have always done—entertain crowds, confuse bigots, and occasionally make better use of duct tape than the average home-repair show.
As for Tennessee lawmakers, they may need to accept that trying to regulate drag shows with vague statutes is like trying to staple jelly to a wall—it makes a mess, it doesn’t accomplish much, and everyone ends up talking about it anyway.
The First Amendment, it seems, still covers wigs and heels.