In The New Year, The Supremes Will Hold That Friends of George’s Will Win, In Tennessee... Drag Shows Are First Amendment Protected. Period.

You'll recall that we've been closely following the anti-drag show state statute case, out of Memphis.

The trial court correctly found that the statute violates Tennesseans' First Amendment rights to dance. . . in costumes.

On appeal, the Sixth Circuit panel completely rewrote the "statute", as written by the legislature, to add limiting provisions that are wholly-inconsistent with the purported statute's express commands.

That is not cricket.

So the Supremes (like the trial court in Memphis) will strike the supposed law.

You heard it here first -- as the cogently-argued cert. petition was filed in the Supremes (178 pages!), as we long ago said it would be -- now, in late in December:

. . .Summary reversal is warranted when a court of appeals decision is “flatly contrary to this Court’s controlling precedent.” Arkansas v. Sullivan, 532 U.S. 769, 771 (2001) (per curiam). Given the responsibility of sovereign states to interpret their own laws, the Court has repeatedly held that federal courts may not unilaterally rewrite or reinterpret state statutes. Federal courts, the Court has stressed, have “no authority to construe the language of a state statute more narrowly than the construction given by that State’s highest court.” City of Chicago v. Morales, 527 U.S. 41, 61 (1991). Even when the state statute is novel or ambiguous, “[f]ederal courts lack competence to rule definitively on the meaning of state legislation.” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 48 (1997).

Here, however, the court of appeals rewrote the AEA in two different ways -- revising the statutory definition of “harmful to minors” and inferring a scienter requirement that does not exist. These interpretations contradicted the AEA’s text. The court of appeals did not seek guidance from the Tennessee Supreme Court, which has not yet interpreted the Act, let alone narrowed it. And while the court of appeals invoked the Tennessee Supreme Court’s earlier decision in Davis-Kidd, that decision interpreted a different statute; Tennessee courts have not applied Davis-Kidd to similar laws, as the court of appeals mistakenly assumed.

When, as here, federal courts have tried to rewrite state law -- or even to interpret an ambiguous state law without first consulting the state’s highest court -- the Court has not hesitated to reverse those judgments summarily. See Bradshaw v. Richey, 546 U.S. 74, 78 (2005). . .

Just to be clear: this supposed Tennessee law allows biological women to dress in any fashion they like, short of complete nudity, and dance in any public place they choose -- in any make-up they might favor. . . or without any make-up.

But should someone who happened to be born with male genitals. . . try to do the very same thing in a public square (i.e., wear a dress and/or put on heavy eye-makeup and lipstick and blusher), they would be subject to arrest -- in every town in Tennessee. [Note that the now-sitting Gov. of Tennessee has himself dressed in drag -- as have I -- as a younger man. See at right. We were both team captains in this tradition. Sheesh!]

That's facially-inconsistent with the people's First Amendment rights -- of self-expression. End of story.

Onward.

नमस्ते