The En Banc 11th Circuit Granted Relief In Drag Show Case Where Justices Kavanaugh and Barrett Did Not

Justice Kavanaugh has used the phrase “interim docket” to refer to the Supreme Court’s emergency rulings, as they often set the interim rule while the issue percolates in the lower courts. Sometimes that “interim” can last years.

Such is the case with Griffin v. HM Florida-ORL. A Florida law prohibited restaurants from showing “adult live performances.” A federal district court judge  issued a universal injunction against the law that applied to the plaintiff, Hamburger Mary’s, as well as non-parties. Back in October 2023, Florida asked the Supreme Court to limit the injunction to Hamburger Mary’s.

Justices Thomas, Alito, and Gorsuch would have granted that relief, b ut they were in the minority. Justice Kavanaugh, joined almost entirely by Justice Barrett, concurred in the denial of the stay. Kavanaugh explained that the question of the universal injunction was complicated by the overbreadth doctrine. He wrote, “This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation.” (I’m sure the parents of children in Florida exposed to drag were comforted by this vehicle problem.) Kavanaugh went further to explain that this issue was “distinct” from the set aside function under APA 706. Remember, this ruling came nearly seven months before CASA. Justice Barrett did not join the footnote about the APA. I discussed the concurrence at some length here. Ultimately, Kavanaugh said “this Court is not likely to grant certiorari on the only issue presented in Florida’s stay application.” I suppose that finely-parsed statement about cert-worthiness was true, but the issue remained alive.

Over the next three years, Florida’s law remained in interim docket purgatory. Today, at long last, the en banc the en banc Eleventh Circuit declared the Florida law as constitutional. Judge Brasher’s majority opinion explains:

After additional briefing and with the benefit of oral argument, we are convinced the district court erred in preliminarily en-joining the enforcement of the Act. This is so for two reasons. First, the district court lacked authority to impose a universal injunction that prevented the enforcement of the Act against everyone in Florida. The Supreme Court has held that a so-called “universal injunction” “falls outside the bounds of a federal court’s equitable authority under the Judiciary Act,” id. at 847, and we see no exception that would apply in this case. Second, Hamburger Mary’s was not entitled to even a more limited preliminary injunction to prevent the enforcement of the Act because its claims do not have a substantial likelihood of success on the merits. The Supreme Court of Florida’s definition of “lewd” eliminates any overbreadth, and the use of the phrase “age of the child present” does not render the Act unconstitutionally vague. Accordingly, we vacate the district court’s preliminary injunction in its entirety.

Judge Grant (who clerked for Justice Kavanaugh), joined by Judge Newsom, would only have decided the First Amendment issue, and not settled the scope of the injunction.

Still, no matter how certain we may be that the district court erred in the scope of its injunction, we should not say so. Because we conclude that the statute is constitutional, any follow-on decision about the district court’s earlier injunction is simply advisory.

As a result, only six members of the fourteen-member en banc court decided the question concerning the universal injunction. So the universal injunction issue remains alive.

Now this case liekly goes back to the Supreme Court. Given the sharp split of the en banc court, one would think Justices Kavanaugh and Barrett now see this issue as cert-worthy. As I noted in my recent National Review essay, the clearest indication of change at the Court will be fewer cert denials accompanied by three dissentals.