MEMPHIS, Tenn. — A Memphis-based theatre company said Friday it will continue its legal fight against a Tennessee law placing strict limits on drag shows.
This comes a day after a federal appeals court on Thursday, July 18, 2024, dismissed a lawsuit challenging first-in-the-nation law, reversing a lower court ruling that deemed the statute unconstitutional and blocked its enforcement in part of the state.
The 6th U.S. Circuit Court of Appeals ruled that Friends of George’s, the Memphis-based LGBTQ+ theater company that filed the complaint last year, lacked the legal right to sue over the law.
Friends of George’s said it will appeal the ruling, which the group said puts “TN’s drag ban in effect statewide.”
“We strongly disagree with the court’s ruling,” said Melissa Stewart, attorney for Friends of George’s. “The court did not reach the issue of whether the law is constitutional. Instead, it decided this case on procedural grounds, holding that Friends of George’s does not have standing to bring this case. As Judge Mathis’ dissent makes clear, this decision is contrary to the 6th Circuit and Supreme Court case law.”
Friends of George's alleged the law would negatively affect them because they produce "drag-centric performances, comedy sketches, and plays" with no age restrictions.
However, the federal appeals court found that Friends of George's was not at risk of violating the 2023 law because its performances were not "harmful to minors."
“There’s no merit to this law because there is no problem to fix,” said Rick Bartl, Friends of
George’s Board Secretary and company member, who performs under the name Phyllis Feathers. “This law is entirely based on fear and hatred, and the need to control others. We are
committed to fighting this unconstitutional law to ensure everyone has the freedom to be their
authentic selves.”
Tennessee's Republican-dominated Legislature advanced the anti-drag law last year with the support of Republican Gov. Bill Lee. Several GOP members pointed to drag performances in their hometowns as reasons why it was necessary to restrict such performances from taking place in public or where children could view them.
Yet the actual word "drag" doesn't appear in the statute. Instead, lawmakers changed the state's definition of adult cabaret to mean "adult-oriented performances that are harmful to minors." Furthermore, "male or female impersonators" were classified as a form of adult cabaret, akin to strippers or topless dancers.
The law banned adult cabaret performances on public property or anywhere minors might be present. Performers who break the law risk being charged with a misdemeanor or a felony for a repeat offense.
In Thursday's ruling, the justices stressed that term "harmful to minors" has a specific definition under Tennessee law — which has three components that must be met in order to prosecute. The ruling also pointed out that the Tennessee Supreme Court limited the definition of "harmful to a minor" to materials lacking "serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor."
"FOG has not alleged that its performances lack serious value for a 17-year-old. In fact, it insists the exact opposite. Its own witness, a member of FOG's board, conceded that its shows 'are definitely appropriate' for a 15- year-old and would 'absolutely' have artistic value for a 17-year-old," the ruling stated.
"As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression," said Attorney General Jonathan Skrmetti in a statement. "But as the court noted, Tennessee's 'harmful to minors' standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children."
“We are a small, volunteer-based group, creating joy, laughter and community in a tiny Memphis
theatre,” Bartl said. “But this is much bigger than us. This is about our state legislature
controlling the validity of our very existence.”
Friends of George’s said its latest original production ‘Death Drop at Hotel Le’George,’ is set to open on August 2, and will be strictly for those 18 and over, “to comply with the recently reinstated ban.”
The Associated Press contributed to this report.