How Shelby County, Tennessee, Got Drag Back

Trump-appointed Judge Thomas Parker ruled against the state's anti-drag law. Should we re-think our low expectations of conservative judges? Maybe.

It’s Monday, children, and the First Amendment fairies have struck again, this time liberating drag queens in Memphis to do their thing during Pride Month as these execrable, cynical, and bigoted GOP laws wend their way to the Supreme Court. If you know a fairy, please:

Performers at Nashville Pride, July 23, 2018. Photo credit: Blue Suede Sisters/Wikimedia Commons

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As the GOP continues to stoke hatred and fear of transgender people as a cynical ploy to swing the nation to the right, there is some heartening news. In a ruling released late last Friday, Thomas “Tommy” Parker, a federal judge presiding over the United States District Court for the Western District of Tennessee (Western District), has struck down that state’s law banning drag performances in any venue where they might be seen by a child on First Amendment grounds. 

To be clear: a law like Tennessee’s Adult Entertainment Act doesn’t just ban your classic drag queen from performing outside a closed, adults-only venue. That’s only the beginning. It potentially forbids many gender-bendy cultural experiences that we take for granted: Shakespeare plays, showing the movies Tootsie and La Cage aux Folles in your own home, and a woman in a suit busking at a farmer’s market. So even though it’s easy to think of these laws as absurd, they have the potential not just to close down drag queen story hour but overturn decades of SCOTUS obscenity rulings and put gender non-conforming people in jeopardy of criminal prosecution.

Since the suit was brought against the District Attorney of Shelby County, TN, Attorney General Jonathan Skrmetti points out that the law is still in effect in the rest of the state—and that he plans to appeal the ruling. You can read a full report of the case by CNN’s Sydney Kashiwagi and the 70-page ruling in Friends of Georges v. Mulroy here.

The meat of the ruling is on page 14 (read the whole thing if you want a glimpse into the crazed minds of the new conservative censorship crusaders:

The Court concludes that strict scrutiny review applies to the AEA. As a matter of text alone, the AEA is a content-, and viewpoint-based restriction on speech. The AEA was passed for the impermissible purpose of chilling constitutionally-protected speech, and the secondary- effects doctrine does not save it from strict scrutiny review.

The Court concludes that the AEA fails strict scrutiny review. Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors, but Defendant has not met his burden of proving that the AEA is both narrowly tailored and the least restrictive means to advance Tennessee’s interest.

The Court concludes that the AEA is both unconstitutionally vague and substantially overbroad. The AEA’s “harmful to minors” standard applies to minors of all ages, so it fails to provide fair notice of what is prohibited, and it encourages discriminatory enforcement. The AEA is substantially overbroad because it applies to public property or “anywhere” a minor could be present.

Finally, the Court concludes that the constitutional-avoidance canon does not apply to the AEA’s constitutional defects. Defendant’s proposed narrowing constructions are unmoored from the text and unsupported—if not contravened—by legislative history, which Defendant asked the Court to consider. Acceptance of Defendant’s proposed narrowing construction under the guise of the constitutional-avoidance would require the Court to rewrite the statute, and to violate the principle of separation-of-powers.

It’s a classic free-speech ruling. So how do we account for the fact that a conservative judge produced it?

Indeed, this seems to be confounding some journalists who have reported the story. Much is being made of the fact that Parker, a former Assistant United States Attorney and criminal defense lawyer, was nominated by former President Donald Trump in the summer of 2017. When they stress this, journalists mean that since Trump appointees are all obviously shills for the right, the Tennessee law must be so terrible that it doesn’t even meet the low Constitutional bar that the Federalist Society right-wing jurisprudence has set for retracting civil rights. 

But Parker is an important example of how sloppy political media narratives drive our understanding of the judiciary as a whole. To begin with, Parker wasn’t a controversial, super-MAGA nominee. Instead, he is a regular Republican with a lengthy and distinguished career as a litigator.

It’s also important to remember that Trump took very little interest in who most judicial nominees were: he doesn’t care about or understand the law except when it serves his business and criminal defense interests. So Parker, an early nomination, was surely on a Republican wish list of candidates that not only long preceded the Trump presidency but the party’s swift right-turn to populism. Parker was quickly and uncontroversially reported out of committee by a unanimous voice vote on October 5 during a session in which two other, more contentious, candidates were narrowly sent to the full Senate on party lines, including Amy Coney Barrett’s nomination to the Seventh Circuit. On January 8, 2018, a cloture vote on the appointment was also resoundingly positive and bipartisan: 96 in favor, one nay (Mazie Hirono, D-HI), with Republicans Ted Cruz (TX), John McCain (AZ) and Johnny Isakson (GA) not voting. The final vote was 98-0, with Ted Cruz voting yes and Corey Booker and John McCain not voting. McCain, you may recall, was undergoing treatment for the brain cancer that killed him later that year.

So the narrative about Parker should not be “Trump-appointed judge” but rather “judge who was perceived overwhelmingly as fair by the entire Senate,” including, I might add, Vermont Democrat and socialist Bernie Sanders. 

But even this doesn’t tell the whole story. So first, let’s look at why Tommy Parker was enthusiastically passed through a Senate that was, by that time, deeply polarized by Trump’s first year in office. Here, an essential document for evaluating any judge is the written questions posed by Senators on the Judiciary Committee before the hearing. The nominee answers them, providing a baseline for all the questions that will be asked during the hearing.

And here, there is more data about Parker. When asked by Senator Dianne Feinstein about his stance toward Supreme Court precedent (or stare decisis), Parker answered that it was “always binding on district courts unless and until the United States Supreme Court decides to overturn or alter a prior decision. Moreover, a district court must follow the precedent established by the circuit court in which the district court resides.” Parker continued that it was “not appropriate for a district court judge to question or deviate” from Supreme Court doctrine and that while “a district court judge may reference the alternative views of other circuits, the district court would remain bound to follow the precedent established by the circuit court in which it resides.”

This means nothing more or less than that Parker knows the rules.

Obviously, in this day and age, knowing the rules is not to be sneezed at. “Trump-appointed” Matthew J. Kacsmaryk went way out over his skis in his Texas courtroom and tried to ban the abortion drug mifepristone for the entire country. Given the small numbers of these extremists, such judges do outsized damage.

But as we fight these hideous new laws, it is worth remembering that even conservatives—sometimes especially conservatives—may be on our side, regardless of who appointed them.

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Short takes:

• You have probably seen the startling stories of American factories and fast-food joints being busted for employing underage labor. But if you thought that was history, think again: child labor was never entirely abolished, and any number of states have often looked the other way. New Yorker reporter William Finnegan explains that state legislatures are making it easier to employ children at difficult, dirty jobs that keep them out of school. The surge in kids working at adult jobs has been “propelled by an unhappy confluence of employers desperate to fill jobs, including dangerous jobs, at the lowest possible cost; a vast wave of “unaccompanied minors” entering the country; more than a little human trafficking; and a growing number of state legislatures that are weakening child-labor laws in deference to industry groups and, sometimes, in defiance of federal authority.” (June 4, 2023)

• How did President Joe Biden manage to steer a deal on the debt ceiling that sailed through Congress with a fistful of Republican votes? As Greg Sargent at the Washington Post explains, Biden stubbornly refuses to believe that all Republicans are terrible people. Having vowed “to restore `the soul of the nation,’” Sargent writes, “Biden has continually distinguished between MAGA Republicans and more conventional ones. This approach has been criticized by those of us who see much of the GOP as extreme and dangerous — after all, many elected Republicans helped whitewash Trump’s insurrection — and think Biden’s characterization of non-MAGA Republicans plays down that broader threat.” (June 4, 2022)

• In the 24 hours after Ron DeSantis officially announced his candidacy, he raised a record $8.2 million. But appearances can be deceiving: that wasn’t small money, but major donors who waited for the big day to write their checks. DeSantis only has 40,000 donors, which doesn’t bode well for future fundraising (or voting) unless something changes. By comparison, Vice President “Kamala Harris, who had 38,000 in her first day in 2019,” writes New York Times reporter Shane Goldmacher. “She raised $1.5 million that day — which indicates just how many bigger checks Mr. DeSantis received.” (June 3, 2023)