On Friday, Chief District Judge Brian Morris issued a preliminary injunction that thwarted the state of Montana’s attempts to institute and enforce its restrictions on drag performances in public venues. This case is currently making its way through the US District Court for the District of Montana Butte Division.
The crux of the plaintiffs’ argument was that House Bill 359 was unconstitutional since it disregarded the First and Fifth Amendments to the US Constitution. Upon reviewing their claims, Judge Morris ascertained that they had a high likelihood of success.
In terms of the First Amendment claim, the judge mentioned that Bill 359 imposed content-based restrictions and viewpoint-based regulations, which warranted a strict scrutiny analysis. To pass strict scrutiny, there must be compelling governmental interest behind the law, and the law itself must be narrowly designed to achieve said interest.
The legislative history behind the bill provided substantial evidence that it was enacted with an impermissible goal, specifically to taget the speech and expression of LGBTQ+ community members, particularly trans, Two-Spirit, and gender non-conforming individuals. The judge then made a determination that the law was not confined to serve a compelling state interest and therefore the plaintiffs would likely succeed on their First Amendment challenge.
In terms of the Fifth Amendment claim, Judge Morris found the law to likely be unconstitutionally vague and sweeping. He noted that the law failed to define the criminalized conduct clearly enough for the average person to comprehend what was prohibited. Furthermore, there was a glaring absence of evidence showing that drag-related events posed any harm to minors.
It is pertinent to note that House Bill 359 not only seeks to prevent minors from attending “sexually oriented shows”, it also espouses a ban on drag story hours in public schools and libraries, and, bans “sexually oriented performances” in public schools, libraries, and spaces where minors are present.
It seems that Montana is not the only state dealing with legal wrangling over drag performances. Just last month, a US Federal judge in Texas ruled that the state’s ban on drag performances was unconstitutional and blocked it from being put into practice.