Horowitz: Trump-appointed judge twists fundamental rights to enshrine drag shows in Tennessee

We were told that there is nothing a state cannot do to you — up to and including covering your breathing holes — under the guise of protecting public health. Yet, suddenly, states lack the internal police powers to prevent the obscene exposure of drag shows to minors, according to a Trump-appointed judge in Tennessee. So, a kid has a right to access a drag show but not to breathe with his God-given mouth and nose in school.

Last Friday, Judge Thomas Parker ruled that Tennessee’s recently-passed Adult Entertainment Act banning adult performances in front of minors “is both unconstitutionally vague and substantially overbroad.” The Trump appointee from the United States District Court for the Western District of Tennessee contended that although the state indeed has a compelling interest in shielding minors from this sort of indecent exposure, the law “fails to provide fair notice of what is prohibited, and it encourages discriminatory enforcement.”

“The Court therefore HOLDS and DECLARES that the Adult Entertainment Act is an UNCONSTITUTIONAL restriction on speech,” concluded Judge Parker in his 70-page declaratory judgement. “The Court concludes that the AEA violates the First Amendment as incorporated to Tennessee by the Fourteenth Amendment, and it cannot be enforced consistently with the supreme law of the land: the United States Constitution.”

To begin with, when I saw this ruling, it struck me that the law really needs to be exceedingly vague in order to justify such a ruling. After all, our history is replete with states having had laws against obscenity, lewdness, and indecent exposure even for adults since our founding. But when you look at the Tennessee statute, there really is nothing so overbroad that it would infringe upon a First Amendment right.

The ACA bans "adult cabaret entertainment" that can be seen by children. It defines "adult cabaret entertainment" as "adult-oriented performances that are harmful to minors, as such term is defined under present law; feature go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; and include a single performance or multiple performances by an entertainer."

What is the definition of "harmful to minors?" The statute defines harm as "that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse."

It seems pretty obvious that such conduct, very specifically defined, when done so wide open in the public that children could view it, is in no way protected by the Constitution. When assailing the law, though, Judge Parker seems to accuse it of “discriminatory” enforcement in that it would specifically target homosexual-themed performances. But to the extent that is true, it’s only because it’s homosexual and transgender behavior that is disproportionately marched down the street in parades, much more so that heterosexual promiscuity, which would clearly be banned under this statute too.

Quite the contrary, protecting homosexual behavior over other forms of public lewdness from regulation of indecent exposure just because it is more favored in the political class has the effect of elevating it to that of a national religion. Judge Parker wrongly focuses on the legislative history of the law over the text itself to conclude that the purpose of this law is discriminatory. Well, of course the impetus for passing it is primarily because it’s the Rainbow Jihad that engages in such public displays of lewdness more than any other group of people, but that doesn’t poison the law.

For example, in Tempe, Arizona, a recent drag performance had a rapper sing about anal sex and turning people gay. Such performances about sexual activity using other body parts would also be prohibited in front of minors under the Tennessee law. It just happens to be (wonder why?) that this public “pride” in promiscuity is championed primarily by one group of people.

Let’s get real here: Back when our country was much freer and much more adherent to the First Amendment, it had much stricter laws against public displays of lewd and lascivious behavior, which are largely still on the books, depending on the state. In fact, even the federal government once had laws such as the Comstock Act of 1873, which prohibited mailing “obscene,” “lewd,” or “lascivious” material, which also included materials about sex education. That can certainly be considered vague, but it still passed constitutional muster.

It’s further peculiar how scrupulously the judge applied the standard that the law be narrowly tailored to the least restrictive means necessary to achieve to state interest of protecting children. Where was this interest-balancing test when we needed it during COVID? Ironically, a Tennessee federal judge forced children in Knox County, Tennessee, to mask eight hours a day for months on end – even though the state did not impose such a restriction. The court itself created a compelling interest to mask children without any evidence it was the least restrictive means and narrowly tailored. Breathing sounds like a much greater right that should be subject to a more rigorous standard of scrutiny than the “right” for anyone – even an adult – to access public displays of satanic rituals in the form of homosexual and drag-sexual fetishes.

Federal judges across the country will now be emboldened to strike down various state laws protecting children from these practices. Fundamental rights have been flipped upside down-inside out. Just how many fundamental rights rooted in history and tradition have been vitiated to accommodate the Rainbow Jihad’s disgusting behavior, which would never be tolerated in the realm of heterosexual behavior? In New York City, a male who thinks he’s a woman showered in the female locker room of city bus employees and was able to film the women in the room while showering. When one of the women knocked the phone out of his hands, she was the one arrested!

Which brings us back to Trump’s judicial nominee. Many of Trump’s picks were excellent, but not all of them. In a world where the legal system contorts fundamental rights, we cannot afford to bungle a single judicial appointment when the left bats 1.000 with its appointments. We need the next president to not just appoint someone better than the Democrats but to appoint a Clarence Thomas every single time. The future of our civilization depends upon it.