America’s Worst Judge Declares War on Drag
U.S. District Judge Matthew Kacsmaryk is a proud Christian nationalist who flatly refuses to apply binding Supreme Court precedent when it conflicts with his extremist far-right beliefs. It is therefore no surprise that Kacsmaryk, a Donald Trump appointee, handed down a decision on Thursday refusing to protect Texas college students’ right to host a drag show. In a break with other (conservative) courts, Kacsmaryk found that drag is likely not protected expression under the First Amendment, but rather “vulgar and lewd” “sexualized conduct” that may be outlawed to protect “the sexual exploitation and abuse of children.” In short, he concluded that drag fails to convey a message, while explaining all the reasons why he’s offended by the message it conveys.
From almost any other judge, the ruling in Spectrum WT v. Wendler would be a shocking rejection of basic free speech principles; from Kacsmaryk, it’s par for the course. This is, after all, the judge who sought to ban medication abortion nationwide, restricted minors’ access to birth control, seize control over border policy to exclude asylum-seekers, and flouted recent precedent protecting LGBTQ+ equality. He is also poised to bankrupt Planned Parenthood by compelling them to pay a $1.8 billion penalty on truly ludicrous grounds. And he is not the only Trump-appointed judge substituting his reactionary beliefs for legal analysis. We have reached a point where these lawless decisions are not only predictable but inevitable, and they show no sign of stopping: Their authors are still just settling into a decadeslong service in the federal judiciary.
The controversy in Spectrum WT v. Wendler began last spring when Spectrum, an LGBTQ+ student group, planned a drag show on campus at West Texas A&M University. They arranged the event to raise money for the Trevor Project, which combats LGBTQ+ youth suicide. The school’s president, Walter Wendler, promptly banned the show, decrying drag as “derisive, divisive and demoralizing misogyny.” He compared it to “blackface” and said it constitutes discrimination and harassment against “womanhood.” In light of Wendler’s ban, Spectrum held the show off campus but filed a lawsuit seeking an injunction protecting their right to hold a future drag show at the school. It should have been a slam-dunk case: Judges in Florida, Montana, Tennessee, and Utah—who range from moderate to very conservative—have recently blocked drag bans on First Amendment grounds. The Supreme Court has long prohibited restrictions on “expressive conduct,” including not only live performances but also actions like flag burning; it applies especially stringent scrutiny to any regulation that targets expression because of its content and viewpoint.
As Judge Thomas Parker, a Trump appointee, noted when enjoining Tennessee’s drag ban, these laws expressly discriminate against performers “who wish to impersonate a gender that is different from the one with which they are born.” A drag queen or king conveys the message that gender identity is artificial or fluid—an arbitrary bundle of stereotypical traits that calls out for subversion. These performers reject strict adherence to sex assigned at birth, mocking the very existence of a gender binary. Laws that forbid such performances target expression because of its content (subversive mockery of gender expression) and viewpoint (a critique of gender stereotypes). So they cannot possibly survive First Amendment scrutiny.
But the case landed in Kacsmaryk’s court, and he saw things differently. Before joining the bench, the judge worked as an anti-abortion activist and served at the hard-right First Liberty Institute, which opposes abortion, In vitro fertilization, contraception, LGBTQ+ equality, and other supposed products of the “sexual revolution.” Kacsmaryk has brought that same energy to the bench, and this decision is no exception. He began by dismissing the legitimacy of the Supreme Court’s modern free speech jurisprudence, writing that courts should instead deploy a “historical analysis. “Specifically, Kacsmaryk invoked the Comstock Act of 1873, a notorious law that enabled mass censorship of publications that questioned Puritanical views of sex and gender relations, including early feminist literature. (The law also banned the mailing of contraception and abortion-related medications, which Kacsmaryk cited as justification to prohibit abortion pills.) He then criticized SCOTUS for departing from the Comstock Act’s censorious approach to free speech, citing a book by arch-conservative the Rev. Carl Trueman that blamed today’s free speech doctrine for the mass “sexualization” of culture.
With this prelude, Kacsmaryk effectively announced that he would not apply binding precedent, which explains why the remainder of the opinion bears little resemblance to a judicial ruling. It is, rather, a broadside against drag, which the judge pilloried as inherently “vulgar,” “offensive,” and “harmful to minors.” He endorsed Wendler’s claim that a drag show could somehow constitute unlawful discrimination and harassment against female students, in the same way that blackface could constitute discrimination against Black people.
Kacsmaryk also gestured toward precedents allowing censorship of “indecent” speech at high schools. But he failed to acknowledge that legal adults on a college campus have far greater First Amendment rights than minors. (The right to host objectionable speech on campus actually flows from a victory won by the conservative legal movement.) Nor did he accept the fact that Spectrum’s planned “PG-13” performance falls far short of indecency. Instead, he complained repeatedly about “biological men ‘performing’ while dressed in attire stereotypically associated with women,” which he denounced as inherently offensive and arguably obscene.
To support this last proposition, Kacsmaryk favorably cited Gays Against Groomers, quoting its claim that drag shows involve “the sexualization and indoctrination of children.” A hate group that stokes violence and fury, Gays Against Groomers endorses the malicious falsehood that transgender people and drag queens seek to “groom,” “sexualize,” and “recruit” children. It also supports gag laws that force LGBTQ+ teachers to remain closeted at school. In addition, Kacsmaryk cited an article by right-wing agitator Christopher Rufo alleging that drag promotes “perversions” that were “born in the sex dungeons of San Francisco” and now seek to corrupt children.
Finally, Kacsmaryk questioned whether drag even qualifies as “expressive conduct” deserving of First Amendment protection. Drag shows, he wrote, do not “obviously convey or communicate a discernable, protectable message.” Even if they did, a ban on drag would not discriminate on the basis of content or viewpoint, because it does not target “the specific motivating ideology or the opinion or perspective of the speaker.” It only targets “offensive” and “lewd” conduct with no expressive value. So Spectrum is not entitled to an injunction and cannot even sue Wendler, because they likely have no First Amendment claim at all.
Here lies the ultimate irony of the opinion: The judge all but admits that he finds the ideas behind drag to be insulting, and endorses efforts to stamp out those ideas through censorship. He is aggrieved by the meaning of the performance and the views that it communicates about gender and sexuality. Put simply, Kacsmaryk is disgusted by drag shows. But the Supreme Court has declared that “disgust is not a valid basis for restricting expression.”
What now? Spectrum will probably appeal to the 5th U.S. Circuit Court of Appeals, the ultra-far-right court where law goes to die, whose conservative ideologues will presumably affirm Kacsmaryk. With a sharp split between courts in different states, SCOTUS will have to step in. And it is hard to see a majority of justices siding with the censors here. Despite the court’s swift shift to the right, most justices still profess a belief that arguably offensive speech remains constitutionally protected, even in an education setting. Justice Brett Kavanaugh may not want his daughters attending a drag show, but he is smart enough to understand that Kacsmaryk’s reasoning would grant the government sweeping power to suppress ideas it doesn’t like—a power that blue states could wield against conservatives.
This term is shaping up to be one in which SCOTUS must clean up the mess made by extremist judges like Kacsmaryk. What may be dispiriting is the reality that, no matter how many times these judges get reversed, they will hold their jobs for decades to come. We may spend the rest of our lives watching the Constitution get trashed by robed fundamentalists out to settle scores.
