Green v. Miss United States
| Decision Date | 02 November 2022 |
| Docket Number | 21-35228 |
| Parties | ANITA NOELLE GREEN, Plaintiff-Appellant, v. MISS UNITED STATES OF AMERICA, LLC, DBA United States of America Pageants, a Nevada limited liability corporation,Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted March 8, 2022 Portland, Oregon
Appeal from the United States District Court D.C. No 3:19-cv-02048-MO for the District of Oregon Michael W Mosman, District Judge, Presiding
Shenoa Payne (argued), Shenoa Payne Attorney at Law PC, Portland Oregon, for Plaintiff-Appellant.
Cody S. Barnett (argued), Alliance Defending Freedom, Lansdowne Virginia; Bryan D. Neihart and Katherine L. Anderson, Alliance Defending Freedom, Scottsdale, Arizona; John J. Bursch, Alliance Defending Freedom, Washington, D.C.; John Kaempf, Kaempf Law Firm PC, Portland, Oregon; for Defendant-Appellee.
Jeffrey R. White and Amy L. Brogioli, American Association for Justice, Washington, D.C., for Amicus Curiae American Association for Justice.
Carson L. Whitehead, Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Office of the Oregon Attorney General, Portland, Oregon; for Amicus Curiae State of Oregon.
Peter C. Renn and Nora Huppert, Lambda Legal Defense and Education Fund Inc., Los Angeles, California, for Amici Curiae Lambda Legal Defense and Education Fund, Transgender Legal Defense and Education Fund, and National Center for Lesbian Rights.
Christina Stephenson, Meyer Stephenson, Portland, Oregon; Phil Goldsmith, Law Office of Phil Goldsmith, Portland, Oregon; for Amicus Curiae Oregon Trial Lawyers Association.
Eugene Volokh; Anastasia Thatcher, So-Young Kim, and Aaron Boudaie, Certified Law Students; First Amendment Clinic, UCLA School of Law, Los Angeles, California, for Amicus Curiae Libertarian Law Council and Institute for Free Speech.
Lauren R. Adams, Women's Liberation Front, Washington, D.C.; Lauren A. Bone, Women's Liberation Front, Glendale, Wisconsin; for Amicus Curiae Women's Liberation Front.
Anna St. John, Hamilton Lincoln Law Institute, Washington, D.C., for Amicus Curiae Pinnacle Peak Pictures.
Michael A. Cantrell, Assistant Solicitor General; Vincent M. Wagner, Deputy Solicitor General; Nicholas J. Bronni, Solicitor General; Leslie Rutledge, Attorney General; Office of the Arkansas Attorney General, Little Rock, Arkansas; Steve Marshall, Attorney General, Office of the Alabama Attorney General; Mark Brnovich, Attorney General, Office of the Arizona Attorney General; Lawrence G. Wasden, Attorney General, Office of the Idaho Attorney General; Jeff Landry, Attorney General, Office of the Louisiana Attorney General; Lynn Fitch, Attorney General, Office of the Mississippi Attorney General; Austin Knudsen, Attorney General, Office of the Montana Attorney General; Douglas J. Peterson, Attorney General, Office of the Nebraska Attorney General; John M. O'Connor, Attorney General, Office of the Oklahoma Attorney General; Alan Wilson, Attorney General, Office of the South Carolina Attorney General; Jason R. Ravnsborg, Attorney General, Office of the South Dakota Attorney General; Ken Paxton, Attorney General, Office of the Texas Attorney General; for Amici Curiae State of Arkansas, State of Alabama, State of Arizona, State of Idaho, State of Louisiana, State of Mississippi, State of Montana, State of Nebraska, State of Oklahoma, State of South Carolina, State of South Dakota, and State of Texas.
Aaron T. Martin, Martin Law & Mediation PLLC, Phoenix, Arizona; for Amici Curiae Past Pageant Participants.
Before: Susan P. Graber, Carlos T. Bea, and Lawrence VanDyke, Circuit Judges.
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) (), 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...
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