The courts side with drag queens over parents ... again

To this day, courts insist you have no right to bodily autonomy when it comes to coerced vaccination and forced masking. They cite the “police powers” of the state as justification. But when the state uses those same powers to regulate public nudity or sexually explicit drag shows in front of children, suddenly the judiciary rediscovers the First Amendment.

In 2023, Florida Gov. Ron DeSantis signed SB 1438, a commonsense law that barred businesses from knowingly admitting children to “adult live performances.” The law defined such performances as any show that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities ... [such as] lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.” Sounds reasonable.

Republicans made a strategic blunder by conceding to the myth that judges serve as final arbiters of public policy.

Yet last week, the 11th Circuit Court of Appeals ruled 2 to 1 that the law violated the First and 14th Amendments.

Even before getting to the legal merits, the scope of the ruling itself highlights the absurdity of universal injunctions against laws passed through the democratic process. The plaintiff, Hamburger Mary’s — a restaurant that occasionally hosted drag shows — wasn’t under investigation or facing prosecution. Still, the court granted standing to pre-emptively strike down the entire law.

Everyone agrees the state has the authority to regulate such matters. The court’s objection? Some of the law’s terms might be too vague and could potentially affect protected speech.

Even if the court’s argument on vagueness held water, it still lacked the authority to block the entire statute. Courts may grant relief only in specific cases where enforcement clearly exceeds constitutional limits. Judges do not have the power to veto legislation — especially when most of it falls well within a state’s lawful regulatory authority.

On the merits, the claim that terms like “lewd conduct” are unconstitutionally vague is nonsense. Legislators have used this language for centuries, and it has held up in court. The 11th Circuit should have overturned the district court’s injunction. But in 2023, only Justices Thomas, Alito, and Gorsuch voted to stay it.

RELATED: How Trump can dismantle the imperial judiciary once and for all

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Let’s be honest: Americans used to enjoy far more freedom and a more faithful interpretation of the First Amendment — yet still lived under far stricter laws governing public indecency. Many of those laws remain on the books. The federal government itself once enforced the Comstock Act of 1873, which banned the mailing of “obscene,” “lewd,” or “lascivious” materials — including sex education. That law could be called vague, too, but the courts upheld it for decades.

As for the Equal Protection Clause of the 14th Amendment, the idea that protecting children from lewd public displays somehow undermines civil rights would have stunned the amendment’s authors. James F. Wilson, chairman of the House Judiciary Committee and architect of both the Civil Rights Act of 1866 and the 14th Amendment, made the intent clear. “We are establishing no new right, declaring no new principle,” he said. “It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen.”

Someone should have warned Wilson that his push to secure property rights for freed slaves would one day be twisted into a supposed constitutional right to expose minors to nudity.

Beyond the absurdity of the 11th Circuit’s ruling, the larger issue lies in the unchecked power courts now claim over legislation. The Florida case highlights a troubling truth: The Supreme Court lacks a reliable five-vote majority willing to overturn lower court decisions that undermine state authority. Just last week, all three Trump-appointed justices joined a ruling that reversed a sound Fifth Circuit decision limiting the removal of criminal aliens under the Alien Enemies Act.

We must now confront the deeper problem: Courts no longer merely interpret law — they nullify it. Florida’s experience shows that even with supermajority Republican control, conservative laws will not survive unless we challenge the false doctrine of judicial supremacy. The courts have become a roadblock, not a referee.

Republicans made a strategic blunder by conceding to the myth that judges serve as final arbiters of public policy. They promised their base that stacking the courts would be enough. It wasn’t. Instead of reforming the system, they legitimized it — and now they pay the price.

That price includes a legal regime where exposing children to sexually explicit performances passes as a constitutional right.

Unless lawmakers begin pushing back against the judiciary’s overreach, even the most modest conservative reforms will continue to fall — along with every last parental right and public standard along the way.