Federal judge sides with Southern Utah Drag Stars in dispute with St. George officials

‘The First Amendment of the United States Constitution ensures that all citizens, popular or not ... have access to public spaces for public expression,” Judge David Nuffer wrote.

(St. George City via YouTube) Chris Keele speaks out against drag at last Thursday's St George City Council meeting. The black and white sticker on his Oath Keepers Utah shirt reads Protect Utah's Kids. A federal judge ruled against the city on Friday, June 17, saying St. George officials could not unfairly block a drag show.

St. George • City officials’ attempt to prevent a drag event from taking place in a St. George municipal park took a hit Friday after a federal judge called their actions unconstitutional and ordered them to allow the show to go on.

In April, St. George officials denied a permit for Southern Utah Drag Stars to stage the Allies & Community Drag Show Festival at J.C. Snow Park, saying the organizers violated a municipal ordinance that bans applicants from advertising special events until receiving final approval and a permit from the city.

That prompted the Southern Utah Drag Stars, which is being represented by the American Civil Liberties Union of Utah, to sue the city on May 23, accusing city officials of violating the First and Fourteenth Amendments as part of “a years-long effort to target drag performances and LGBTQ pride events.”

In siding with the plaintiffs – Southern Utah Drag Stars and CEO Mitski Avalōx – U.S. District Judge David Nuffer called the city’s actions an overreach and a violation of the Avalōx’s constitutional right to freedom of speech and expression.

“Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression,” Nuffer wrote in granting the plaintiff’s request for a preliminary injunction.

Nuffer’s ruling orders municipal leaders to reverse their denial of Southern Utah Drag Stars’ earlier application and requires them to allow the business to stage a show on June 30 at the same location or at the Sun Bowl. It does not end the lawsuit, though, which must still be litigated in court.

In granting the injunction, the judge scolded city officials for abrogating their duty to be trustees of all citizens’ constitutional rights, explaining further it isn’t the role of elected officials to “merely serve the citizens who elect them, the majority of citizens in the community, or a vocal minority in the community.”

“The governing body and its members must never use pretended or pretextual reasons to hide the real reasons for denying individuals their constitutional rights,” the judge wrote. “This is not only a fundamental breach of their oath and trust but also less than honest.”

Nuffer’s decision was lauded by ACLU senior staff attorney Valentina De Fex, who was thankful for the judge’s ruling and noted that drag is protected by the First Amendment.

“The city of St. George’s selective and discriminatory refusal to permit a family friendly drag event impermissibly silenced LGBTQ+ Utahns and violated our client’s constitutional rights,” she said. “This ruling is a win for not just our client – who will now be able to hold an event on June 30 that celebrates inclusivity and joy – but for all people in St. George and throughout Utah.”

City officials declined to comment on the ruling, citing St. George’s policy that enjoins them to stay mum about matters under litigation. Instead, they released a prepared statement.

“The City of St. George is committed to ensuring that our public parks and facilities remain viable and open to our residents as well as for those who may want to hold one of the many special events in our community,” the statement reads.

“We have read Judge Nuffer’s opinion and while we are disappointed in the result, we are currently evaluating our options in light of the ruling,” they added.

A long battle against drag

Drag shows in St. George have embroiled municipal staff and City Council members in controversy over the past year. Councilwoman Michelle Tanner has been especially vocal in her opposition to drag performances, which she argues have a corrupting influence on children.

For instance, Tanner was loudly critical of City Manager Adam Lenhard who, acting on the advice of attorneys, declined to deny a permit for a drag show HBO staged at Town Square Park last June. Lenhard later resigned under pressure and accepted a $625,000 settlement rather than sue the city for wrongful termination.

Tanner also spearheaded an unsuccessful effort to revoke the city’s sponsorship of the Downtown Farmers Market in Vernon Worthen Park due to the owners’ decision to allow Southern Utah Drag Stars to operate a photo booth at Modern Farm and Artisan Co-op, their private and separate business on downtown Main Street.

In rejecting Avalōx’s application for a drag show, Nuffer said City Council members relied on the no-advertising ordinance which has been on books since 2015 but was not enforced prior to March 23, nearly three weeks after Avalōx filed her application.

In March, the City Council further enacted a six-month moratorium on approving any further special events at city parks and spaces until the council could make some changes to the code governing such gatherings. Ostensibly, one of the reasons was to prevent the overuse of city parks and find a way to treat every applicant wanting to host such events equally.

Nuffer, however, stated city officials’ decision in April to amend the ordinance and retroactively exempt recurring and city-sponsored events from the moratorium, along with now enforcing a premature advertising rule, undercut their rationale for the moratorium and denying Southern Utah Drag Stars’ permit.

All told, in reviewing pending applications for special events in March, the city found that 16 applicants had violated the ordinance prohibiting advertising without a permit. But rather than deny all their applications and enforce the moratorium equally, the city amended the ordinance to retroactively exempt most of the violators and enforce the ordinances on a select few, including Southern Utah Drag Stars.

Nuffer characterized the city’s selective enforcement of the advertising and moratorium ordinances as unconstitutional discrimination

“Last-minute policy changes that break from past practice also may support a finding of pretext: where stated reasons for excluding protected speech are ‘of such recent vintage ... and such a break with past traditions,’ they may be pretexts for content or viewpoint discrimination,” Nuffer stated in the ruling, adding later that the facts in the case “viewed together demonstrate quintessential pretextual discrimination.”

He wrote the factual record in the case is replete with statements and conduct by members of the City Council which demonstrate “severe animus towards Drag Stars’ protected speech and viewpoint.” And he pinned the impetus of the city’s denial of Avalōx’s permit on Tanner, who moved quickly to nix the Southern Utah Drag Stars Show after receiving a text on March 17 from a woman named Lisa.

“I am so disgusted by this Southern Utah Drag Group,” the woman wrote. “They are all sexually abusing kids and should be held accountable. Thought you might have an update.”

According to Nuffer, Tanner immediately began looking for reasons to deny the Allies Drag Show permit, found the advertising prohibition in the city code and informed St. George’s legal team, which began looking into the matter.

“The record shows the use of this prohibition was a pretext for discrimination,” the judge wrote.

In ordering the city to allow Southern Utah Drag Stars to hold a drag show at a city park on June 30, the judge barred the city from enforcing its advertising prohibition or using the moratorium to deny Avalōx’s application. He also ruled the plaintiff is not required to file a new application for the show, saying the one she already submitted for the earlier April show would suffice.

For her part, LGBTQ advocate Katheryne Knight was elated by the judge’s decision.

“As a community, we have an obligation to stand up and speak out – not only when we see a hint of discrimination or violation of our rights but also when we see financial negligence,” the St. George resident said. “These lawsuits are costing taxpayers a lot of money. At the end of the day, this ruling is beneficial to the whole community.

Correction, June 17, 12:55 p.m. • This article has been updated to correctly identify the plaintiffs, Southern Utah Drag Stars and CEO Mitski Avalōx.