Posted on 11/02/2022 4:56:42 PM PDT by aimhigh
SUMMARY
The panel affirmed the district court’s summary judgment in favor of Miss United States of America, LLC, in an action brought by Anita Green, who self-identifies as an openly transgender female, alleging that the Miss United States of America pageant’s “natural born female” eligibility requirement violated the Oregon Public Accommodations Act (“OPAA”).
The district court held that the First Amendment protected the Pageant’s expressive association rights to exclude a person who would impact the group’s ability to express its views. The panel agreed that summary judgment for the Pageant was correct, but reached this conclusion not under the First Amendment’s protection of freedom of association but rather under the First Amendment’s protection against compelled speech.
The panel held that the First Amendment, which ensures that “Congress shall make no law . . . abridging the freedom of speech,” extends its protections to theatrical productions. Beauty pageants fall comfortably within this ambit. The panel noted that it is commonly understood that beauty pageants are generally designed to express the “ideal vision of American womanhood.”
The panel held that the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants. The Pageant would not be able to communicate “the celebration of biological women” if it were forced to allow Green to participate. The First Amendment affords the Pageant the ability to voice this message and to enforce its “natural born female” rule. The panel concluded that forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant’s expressive message in direct violation of the First Amendment.
The panel rejected the arguments of Green and amici that there would be no First Amendment violation if Green was allowed to participate. First, Green argued that the Pageant never actually expressed any viewpoint relating to the inclusion of biological males who identify as women. The panel held that this argument concerned the First Amendment protection as to the Pageant’s freedom to associate, which is not the ground reached in this decision. And even if the argument were relevant to the Pageant’s free speech rights, it was a contention rejected by case law.
Second, Green and amici argued that the forced inclusion would not significantly burden the Pageant’s ability to advocate for its viewpoints. The panel disagreed. Green’s insistence that there was no meaningful difference between Green and any of the Pageant’s cisgender female contestants was precisely the opposite statement of the one that the Pageant sought to make. The panel held that if the Pageant were no longer able to enforce its “natural born female” rule, even if a given transgender contestant never openly communicated to anyone outside of the Pageant their transgender status and were otherwise fully indistinguishable from the “natural born female” contestants, the Pageant’s expression would nonetheless be fundamentally altered. Thus, the Pageant’s desired expression of who can be an “ideal woman” would be suppressed and thereby transformed through the coercive power of the law if the OPAA were to be applied to it.
The final say over the content of its message ultimately lies with the Pageant. Third, the panel held that contrary to Green’s and the dissent’s argument, it does not matter that the Pageant is a for-profit entity that engages in commerce. That alone is not enough to strip the Pageant of its First Amendment rights. The Pageant expresses its message in part through whom it chooses as its contestants, and the First Amendment affords it the right to do so. The panel held that the district court erred in refusing to apply Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) (addressing whether a Massachusetts public accommodations law could be used to force a private parade to include a message that the organizers opposed), to this case.
The panel held that it was impossible not to perceive the strong parallels between this case and what drove the Supreme Court’s analysis in Hurley. The Pageant is engaging in an inherently expressive activity. Forcing the inclusion of Green in the Pageant would be to require the Pageant to eliminate its “natural born female” rule, which in turn would directly affect the message that is conveyed by every single contestant in a Miss United States of America pageant.
The panel held that the district court erred in analyzing the Pageant’s free speech claim under the framework established in United States v. O’Brien, 391 U.S. 367 (1968). The facts underlying O’Brien were materially different than this case. The O’Brien framework governs First Amendment claims when evaluating government regulations that only have an incidental effect on protected speech – generally when speech and nonspeech elements are combined in the same course of conduct. The panel held that the restriction on expression when applying the OPAA to the Pageant cannot properly be described as merely “incidental.” Forcing the pageant to include Green would directly impact the message that the Pageant currently expresses regarding the celebration of natural born females, and therefore, O’Brien was inapplicable here.
The panel held that application of the OPAA would force the Pageant to include Green and therefore alter its speech. Such compulsion is a content-based regulation and warrants strict scrutiny. The panel held that as a threshold matter, the application of the OPAA in this context lacks the compelling state interest. The State of Oregon has offered only “eliminating discrimination against LGBTQ individuals” as a compelling interest, but this broad formulation alone cannot suffice. The courts have a long-standing hesitation to enforce anti-discrimination statutes in the speech context. Application of the anti-discrimination law to the Pageant here would necessarily impact its message. Applying the proper Supreme Court guidance in this case required prohibiting the application of the OPAA to eliminate the Pageant’s “natural born female” rule.
Finally, the panel addressed the dissenting opinion. The panel held that the dissent proposed a radical expansion of the constitutional avoidance doctrine that would force the Pageant to continue operating under a siege of litigation irrespective of any constitutional protections. This runs directly counter to the First Amendment’s right, not just to speak, but to be free of protracted speech-chilling litigation. Expanding the constitutional avoidance doctrine to force the Pageant to engage in possibly years of additional, costly, and attention-diverting litigation before it can effectuate its constitutional rights would make a mockery of those rights.
Judge VanDyke separately concurred to respond to the dissent and explain why the Pageant was protected not only from compelled speech, but also from forced association by being required to include Green in its pageantry. He would hold that the Pageant is an expressive association, and the forced inclusion of an unwanted member would impact the organization’s ability to express its desired viewpoints. Given this, the OPAA could not survive under the requisite heightened scrutiny. Judge VanDyke would hold that the Pageant’s association claim, like its free speech claim, was meritorious.
Judge Graber dissented. She wrote that the federal doctrine of constitutional avoidance, Oregon’s application of the same principle, and the Erie doctrine, emphatically supported, if not required, that the panel decline to decide the constitutionality of the Oregon statute without first deciding whether the statute even applied to Defendant. The district court, and the majority opinion, contradicted those principles. By assuming that the OPAA applied to Defendant, the majority risked issuing an unconstitutional advisory opinion and flouted a longstanding tradition of judicial restraint in federal courts.
In addition, the case arose under state law, and principles of comity strongly supported the conclusion that, just as the Oregon courts would, this court should first decide whether the statute applied. Moreover, the majority opinion was fatally inconsistent when it held both that the OPAA is assumed to apply to Defendant and that Defendant is so selective that it is not offering a place or service to members of the public. If the court were to reach Defendant’s as-applied First Amendment defense, Judge Graber would hold that Green should prevail on the present record. The OPAA does not compel speech and it does not violate Defendant’s right to associate. Judge Graber would vacate the judgment and remand the case to the district court to determine whether the OPAA applied to Defendant before this court addresses any constitutional concerns regarding the application of the statute.
Any state that doesn’t agree with that ruling should be excluded from the pageant.
Have your own pageant: Miss Chick with a Dic# USA.
This thread is better-off without pictures.
Can someone far more learned than me boil this conclusion down into one or two sentences?
Just when I think I get what has been decided, the article gives data that seems to contridict my assumption.
+1
5.56mm
“...Anita Green, who self-identifies as an openly transgender female...”
Would be a perfect soldier in Puppet Biden’s military. Russia would never dare to go up against such a formidable force of trannies. /spit
That's an interesting twist. I'm thinking about bakers for example who don't want to write specific things on cakes.
Any State that sends a man as its representative should be excluded.
This logic should apply to the Boy Scouts, the bakery owners, wedding planners....
A lot of words to say, “Piss off, dyke”.
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