Montana judge blocks restrictions on public drag performances

Chief District Judge Brian Morris issued a preliminary injunction that blocked the state of Montana from instituting and enforcing its restrictions on drag performances in public venues, reported Jurist. The case is in the US District Court for the District of Montana Butte Division.

Morris found that the plaintiffs in the case were likely to succeed on the merits of their claims that House Bill 359 is unconstitutional because it violates the First and Fifth Amendments to the US Constitution.

On the First Amendment claim, Morris noted that 359 imposes both content-based restrictions and viewpoint-based regulation, which leads to a strict scrutiny analysis. To pass strict scrutiny, the legislature must have passed the law to further a compelling governmental interest and narrowly tailored the law to achieve that interest. Morris also noted that 359’s legislative history provided “substantial evidence” that an “impermissible purpose” was behind 359’s enactment. This impermissible purpose was to “target the speech and expression of LGBTQ+ community members, particularly trans, Two-Spirit, and gender non-conforming people.” Morris then concluded that 359 was not narrowly tailored to serve a compelling state interest because “[f]orcing protected expression to take place under a cover of darkness, rather than banning it outright, does not save H.B. 359 from constitutional infirmity.” Thus, Morris concluded that the plaintiffs would likely succeed on their First Amendment challenge. 

For the Fifth Amendment challenge, Morris found that 359 is likely unconstitutionally vague and overbroad. Morris noted that the law “fails to define the conduct it criminalizes ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited.'” Morris also noted that there was “no evidence” submitted that minors face any harm from drag-related events.

House Bill 359 prohibits minors from attending “sexually oriented shows.” Additionally, the law bans drag story hour in public schools and libraries and bans “sexually oriented performances” in public schools, public libraries and public property where minors are present.

This is not the only litigation revolving around state bans on drag performances. Last month, a US federal judge in Texas ruled that the state’s ban on drag performances was unconstitutional and blocked it from going into effect.

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