Green v. Miss United States, LLC
| Citation | 533 F.Supp.3d 978 |
| Decision Date | 08 April 2021 |
| Docket Number | No. 3:19-cv-02048-MO,3:19-cv-02048-MO |
| Parties | Anita Noelle GREEN, Plaintiff, v. MISS UNITED STATES OF AMERICA, LLC, a Nevada limited liability corporation d/b/a United States of America Pageants, Defendant. |
| Court | U.S. District Court — District of Oregon |
Shenoa L. Payne, Shenoa Payne Attorney at Law PC, Portland, OR, for Plaintiff.
John T. Kaempf, Kaempf Law Firm, PC, Portland, OR, for Defendant.
In June 2020, this case came before me on Defendant Miss United States of America, LLC's ("Miss USA") Motion to Dismiss [ECF 8] and Motion to Strike [ECF 15]. The subject of both motions is an identical as-applied challenge to the Oregon Public Accommodations Act ("OPAA") as a violation of Miss USA's rights under the First Amendment of the United States Constitution and Article I, Section 8 of the Oregon Constitution. The analysis of those constitutional questions is the same under either motion. After hearing oral argument, I ordered the parties to engage in limited discovery and to submit supplemental briefing on the question of whether Miss USA is an "expressive association" under First Amendment doctrine, thus converting the motions to a summary judgment posture. Min. of Proceedings [ECF 28]. Miss USA's Motion for Summary Judgment [ECF 32] is now before me. For the reasons explained below, I GRANT Miss USA's motion.
Plaintiff Anita Noelle Green is "an openly transgender female—a person whose gender identity as female differs from the gender [she] was assigned at birth." Anita Noelle Green Decl. [ECF 39] ¶ 2. Ms. Green frequently participates in beauty pageants. Id. ¶¶ 4-6. To her, beauty pageants "play a vital role in boosting her confidence, improving her public speaking skills, making her feel heard, giving her a public platform in which to discuss important social issues, and allowing her to be a positive and inspiring example to all women." Compl. [ECF 1] ¶ 29.
Defendant Miss USA produces female beauty pageants throughout the country, including in Oregon, "to encourage women to strive to ACHIEVE their hopes, dreams, goals, and aspirations, while making them feel CONFIDENT and BEAUTIFUL inside and out!" Tanice Smith Decl. [ECF 33] Ex. 2, at 1. Miss USA "focus[es] on women empowerment, promoting positive self-image and advocating a platform of community service, which allows [its] contestants to rise by lifting others." Id. While Miss USA is generally unselective in choosing participants for its pageants, it does have some eligibly requirements.
Relevant here, Miss USA limits its contestant pool to "natural born female[s]." Id. Ex. 2, at 1-2. As defined by Miss USA, that category does not include transgender women.
Ms. Green alleges that she applied to participate as a contestant in Miss USA's Oregon pageant but that her application was denied on account of her status as a transgender woman, due to the "natural born female" rule. Compl. [ECF 1] ¶¶ 2, 30–34. She argues that her exclusion from Miss USA's pageant on account of her gender identity violates the OPAA, which makes it unlawful "for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation" to an individual based on a protected status, including an individual's gender identity. Or. Rev. Stat. § 659A.403 ; Or. Rev. Stat. § 174.100(7).
Miss USA does not dispute that it is a place of public accommodation under OPAA or that its "natural born female" rule denies Ms. Green a privilege because of her gender identity. Instead, Miss USA argues that the forced inclusion of Ms. Green in its pageant would compel it to express a message with which it disagrees: Ms. Green is a natural-born female. And it argues that it is protected from such compelled expression by both the First Amendment of the United States Constitution and Article I, Section 8 of the Oregon Constitution.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Although Miss USA makes its argument under the Oregon Constitution in rather brief fashion in its Motion to Dismiss [ECF 8] and Motion to Strike [ECF 15], and it does not raise the argument at all in its Motion for Summary Judgment [ECF 32], principles of constitutional avoidance require me to address any potentially dispositive state constitutional question before turning to alleged violations of the federal constitution. Ellis v. City of La Mesa , 990 F.2d 1518, 1524 (9th Cir. 1993). I thus begin with Article I, Section 8 of the Oregon Constitution. But because I hold that Miss USA's argument there fails, I then turn to Miss USA's arguments under the First Amendment.
Miss USA makes two independent arguments under the First Amendment, two overlapping but distinct doctrines. First, it argues that OPAA, as applied here, violates its free speech rights under traditional First Amendment compelled-speech doctrine. Mot. Summ. J. [ECF 32] at 19. Second, it argues that OPAA violates its right to freedom of association under the "expressive association" doctrine. Id. at 11. For the reasons explained below, I hold that Miss USA's free speech rights do not trump application of OPAA here, but its freedom-of-association rights do.
When a law is challenged as violating Article I, Section 8, the analysis begins by categorizing the law, on its face, into one of three categories. City of Eugene v. Miller , 318 Or. 480, 871 P.2d 454, 458–59 (Or. 1994). The parties do not dispute that OPAA belongs in the third category: "laws that ‘focus on forbidden effects, but without referring to expression at all.’ " Id. at 459 (alteration accepted) (quoting State v. Plowman , 314 Or. 157, 838 P.2d 558, 563 (1992) ).
To prove a violation, an as-applied challenge to a law in the third category must show that the law (1) reaches privileged communications in a way that (2) impermissibly burdens the protected expression. City of Eugene , 871 P.2d at 460. A claimant's free speech rights are not impermissibly burdened by "a permissible restriction on the time, place, and manner of their expression." State v. Babson , 355 Or. 383, 326 P.3d 559, 575 (2014) (en banc). Oregon courts consider three factors to determine whether restrictions are "reasonable limits" on the time, place, and manner of expression: (1) whether the law discriminates on the basis of the speech's content; (2) whether the restriction advances a legitimate state interest without restricting substantially more speech than necessary; and (3) whether ample alternative opportunities exist to communicate the intended message. Id.
Here, on the question of whether OPAA reaches privileged communications, Miss USA argues that "[b]ecause [it] engages in speech under the First Amendment, it also engages in protected expression under the even broader clause of Oregon's Constitution." Mot. to Dismiss [ECF 8] at 30. It then argues that Article I, Section 8 is broader than the First Amendment because it covers "any" expression of opinion. Id. (quoting State v. Henry , 302 Or. 510, 732 P.2d 9, 11 (1987) ).
Miss USA's derivative argument is a problem for two reasons. First, Oregon courts have held that they will not accept Article I, Section 8 claims that are purely derivative of First Amendment claims. See Klein v. Or. Bureau of Labor and Indus. , 289 Or.App. 507, 410 P.3d 1051, 1074 (2017), vacated on other grounds , 139 S. Ct. 2713, 204 L.Ed.2d 1107 (2019) (mem.). Miss USA's a fortiori argument that the Oregon Constitution necessarily protects everything protected by the First Amendment is exactly the sort of derivative argument prohibited by Klein . Second, to accept Miss USA's argument I would have to conclude that the application of OPAA here reaches expression protected by the First Amendment. To do that at this juncture would completely undermine the requirements of constitutional avoidance which mandate that I adjudicate a state constitutional claim before reaching any federal constitutional question. I will therefore defer my analysis of this issue until I address Miss USA's First Amendment argument infra.
But assuming arguendo that OPAA does reach privileged communications as applied here, I also hold that OPAA does not impermissibly burden Miss USA's expression as all three "reasonable limits" factors weigh in Ms. Green's favor. With respect to the first factor—whether the law discriminates based on the speech's content—the Oregon Supreme Court has clarified that the inquiry is "whether the application [of the law] was directed at the content or the expressive nature of an individual's activities." Babson , 326 P.3d at 575. That question is generally asked when the state is seeking to enforce a criminal or regulatory code that affects expression, and the concern is that the state is selectively enforcing the law because it disfavors the defendant's expression. See id. at 577. Thus, this factor is a bit inapposite here, where Ms. Green is a private party seeking the enforcement of a state statute that is neutral on its face. Regardless, Miss USA has not demonstrated that the operation or enforcement of OPAA discriminates against it because of the content or subject of its speech; any impact on Miss USA's expression here is incidental.
With respect to the second factor, Miss USA makes only a conclusory argument that the state's interest in preventing discrimination based on gender identity is illegitimate under Oregon law. Mot. to Dismiss [ECF 8] at 32. Oregon courts have held that OPAA serves a "compelling interest both in ensuring equal access to publicly available goods and...
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