We talk a lot about the difference between judges appointed by former President Donald Trump and those appointed by President Joe Biden or former President Barack Obama. One needs to look no further than the Supreme Court’s decision to overturn Roe v. Wade to understand what a huge impact a judge’s ideology can have. But sometimes, a law is so blatantly unconstitutional that it doesn’t matter who the judge reviewing that law is. Tennessee’s anti-drag law is one such measure — not so much a law as it is bigotry wrapped up in legalese. On Friday, a Trump-appointed federal judge rightly struck it down.
Earlier this year, Tennessee Senate Bill 3 was passed overwhelmingly by both houses of the state Legislature and signed by Republican Gov. Bill Lee. But there are situations in which lawmakers pass, and a governor signs, a law that no judge, regardless of their judicial philosophy, can seriously think is constitutional. Imagine, for instance, a law that is so vague that it’s impossible to say what types of activities violate that law. Envision another law that is so overbroad that it attempts to outlaw conduct that is legal. And finally, conjure up yet another law that burdens one of our most dearly protected liberties, the freedom of speech. Now combine all three and you have Tennessee’s anti-drag law.
Sometimes a law is so blatantly unconstitutional that it doesn’t matter who the judge reviewing that law is.
Senate Bill 3 was designed to ban drag shows (referred to in the law as “adult cabaret entertainment”) in public places or places where children are present. If you’re not exactly sure when this law would apply, and when it wouldn’t, you’re not alone. And if you’re concerned this law might target and outlaw speech and expression that the government doesn’t like, again, you’re not alone. In fact, you agree with U.S. District Judge Thomas Parker, appointed by Trump in 2018. As Parker ruled, the law “reeks with constitutional maladies of vagueness.” In addition, he concluded that drag performances, which might be sexually explicit but not legally obscene, are entitled to the same protection as “political, artistic, or scientific speech.”
The First Amendment guards against the government choosing who can speak and who cannot. The government can do that by passing laws that target certain speakers or certain messages. Tennessee’s law does both. The speech that this ban attempted to criminalize was defined by the identity of the speaker (the drag performer) and the message that person attempted to convey.
What about protecting the kids, the stated purpose of this law? As Parker pointed out in his 70-page ruling, Tennessee’s law would ban a female Elvis Presley impersonator. If we are truly interested in protecting children in this country, then this law doesn’t do that. Tennessee is not alone in attempting to limit drag performance. Fifteen other Republican-controlled states are following closely behind. Far from measures protecting children, these laws are about exactly what you think they are about: regulating and punishing LGBTQ conduct. They are attempts at government-sanctioned discrimination. But luckily we have a third branch of government, and judges have a vigorous role to play in protecting individual rights against overreach by the political branches. That is just what Judge Parker did last week when he struck down Tennessee’s anti-drag law. Parker’s ruling only applies in Shelby County, where the suit was filed, but other lawsuits in other parts of the state are sure to follow, and his rationale and conclusion should extend far beyond that one county.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
