ANITA GREEN V. MISS UNITED STATES OF AMERICA

FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANITA NOELLE GREEN, No. 21-35228

Plaintiff-Appellant, D.C. No. 3:19-cv-02048-MO

v.

OPINION

MISS UNITED STATES OF AMERICA,

LLC, DBA United States of America

Pageants, a Nevada limited liability

corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted March 8, 2022

Portland, Oregon

Before: Susan P. Graber, Carlos T. Bea, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke;

Concurrence by Judge VanDyke;

Dissent by Judge Graber

SUMMARY *

First Amendment

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

*

This summary constitutes no part of the opinion of the court. It has been

prepared by court staff for the convenience of the reader.

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.

COUNSEL

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.

VANDYKE, Circuit Judge:

I.

Anita Green, who self-identifies as “an openly transgender female,” sued the

Miss United States of America pageant, alleging that the Pageant’s “natural born

female” eligibility requirement violates the Oregon Public Accommodations Act

(“OPAA”). The district court granted the Pageant’s motion for summary judgment,

holding that the First Amendment protects the Pageant’s expressive association

rights to exclude a person who would impact the group’s ability to express its views.

We conclude that the district court was correct to grant the Pageant’s motion for

summary judgment, but reach this conclusion not under the First Amendment’s

protection of freedom of association but rather under the First Amendment’s

protection against compelled speech.

II.

Defendant Miss United States of America, LLC, is a Nevada corporation that

operates beauty pageants throughout the United States. This includes an annual

national pageant, which is livestreamed and performed before a live audience.

Contestants in the national pageant compete in multiple rounds of competition. The

early rounds require contestants to answer questions from the judges, perform on

stage in patriotic outfits, and dance to a choreographed routine while wearing a sash

that displays the Pageant’s logo. The top-rated performers advance to the semi-

2

finals, where they again compete in similar competitions and are judged for traits

such as “poise” and “grace.” The top three semi-finalists continue to the final round.

The final round includes onstage questions, and in the past has included prompts

such as “[w]hat will you do to … promote your platform on a national level?” and

“[w]hy is the image you portray on your personal social media accounts important

as a titleholder?” The top-scoring contestant is crowned Miss United States of

America. The Pageant also promotes these contestants—especially the winner—on

its own social media accounts. Moreover, winning contestants receive direct

economic benefits in the form of a “prize package” that includes, among other items,

gift certificates, beauty products, and clothing.

Like essentially all beauty pageants, Miss United States of America has

eligibility requirements for who can compete. See Hilary Levey Friedman, Here She

Is: The Complicated Reign of the Beauty Pageant in America 6 (2020) (“[B]eauty

pageants are exclusionary in a number of dimensions ….”). The “Miss” division,

which Green applied to, requires among other things that contestants be “between

18–28 years of age,” have “never posed nude in film or print media,” and not be

married or have given birth. Finally, and most relevant to our case, contestants must

also be “a natural born female.”

The Pageant enforces these requirements. For example, one applicant was

rejected for having posed nude. Another was rejected for including “photographs

3

and language which were inconsistent with USOA Pageants’ message.” The

Pageant explained that those photographs and language were “inconsistent with [the

Pageant’s] vision and message we wish to associate with and does not coincide with

United States of America Pageants’ efforts to produce community role models.”

As explained in the briefing, Plaintiff Anita Green claims to have been

“assigned the gender of male at birth,” but “came out as transgender at the age of

17.” Green later took medication to alter hormone levels and underwent cosmetic

surgery in which Green’s male anatomy was reconstructed to appear as female

anatomy.

Green then began competing in female beauty pageants. These included back-

to-back entrances in the Miss Montana USA pageant, which ended when Green was

no longer eligible because of that pageant’s age requirement. Green then moved to

Oregon and continued competing, including in the Miss Earth pageants in Oregon

and Nevada.1

In late 2018, Green and Tanice Smith—Miss United States of America’s

national director—began exchanging messages on Facebook. The two began

discussing Miss United States of America’s Oregon pageant. Smith explained that

the 2018 Oregon pageant had already occurred, but that Green could either wait until

next year’s pageant or try to represent another state at the national pageant.

1

Green was crowned the 2018 Miss Earth USA Elite Oregon titleholder.

4

After Smith sent Miss United States of America’s rules, Green wrote “[y]ou

know I’m transgender, right?” and “[y]our rules seem to discriminate against

transgender women.” Smith responded that she did not know that Green identified

as transgender, and explained that Miss United States of America is a “natural

pageant,” implicitly referencing the Pageant’s “natural born female” rule. After

informing Green that the Pageant did not anticipate changing this eligibility

requirement, Smith offered to help Green find “a pageant you would qualify for.”

Green responded by writing “[w]ell, I’ll talk to my attorney about this then because

discrimination is unacceptable.”

Notwithstanding the Pageant’s eligibility requirements, Green applied to

compete. After the Pageant denied Green’s application, Green sued. Green alleged

that the Pageant violated the OPAA by discriminating based on gender identity. See

Or. Rev. Stat. § 659A.403.2

The Pageant moved to dismiss, arguing in part that the application of OPAA

violated the Pageant’s freedom of speech and freedom of association rights under

the First Amendment. After oral argument, the district court converted the motion

to dismiss into a motion for summary judgment so that the parties could “engage in

limited discovery and … submit supplemental briefing on the question of whether

2

At the time, the OPAA did not explicitly cover “gender identity,” but did include

“sexual orientation.” But neither party disputes that the OPAA’s statutory definition

of “sexual orientation” extended to include Green’s claim.

5

Miss USA is an ‘expressive association’” to evaluate the Pageant’s freedom of

association claim. After the subsequent filings, the district court granted the

Pageant’s motion for summary judgment, holding that the Pageant had a First

Amendment freedom of association right to exclude Green.

The district court denied the Pageant’s freedom of speech claim before ruling

on its freedom of association claim. In rejecting the Pageant’s speech claim, the

district court first concluded that Hurley v. Irish-American Gay, Lesbian, and

Bisexual Group of Boston, 515 U.S. 557 (1995), did not control the outcome of this

case. The court explained that the state court in Hurley “misapplied the public

accommodations law in a way that transformed it from a conduct-regulating,

content-neutral law that did not target speech into a law that directly regulated speech

based on its content.” But unlike in Hurley, “a public accommodations law like

OPAA, applied in the manner contemplated by its text, affects expression only

incidentally, if at all.”

After distinguishing Hurley, the district court determined that the Pageant’s

decision to exclude Green was “expressive conduct.” The court then applied the

framework laid out in United States v. O’Brien, 391 U.S. 367 (1968), to determine

if the application of the OPAA could survive despite its “incidental limitations on

First Amendment freedoms.” The court held that the application of the OPAA to

the Pageant’s “natural born female” rule was permissible because the statute is both

6

“unrelated to the suppression of free expression” and “incidentally restricts [the

Pageant’s] expressive conduct in a way no further than essential.”

But the court went on to conclude that Miss United States of America’s

freedom of association right “trump[s] application of OPAA.” It determined that the

Pageant was predominately an expressive association; that the forced inclusion of

Green would significantly affect the Pageant’s ability to express its viewpoints; and

that the Pageant’s expressive association interests outweighed Oregon’s interest in

enforcing the OPAA. Green then appealed the district court’s summary judgment

ruling.

III.

On appeal, the Pageant reasserts its claims that the forced inclusion of Green

would unconstitutionally infringe on both its free association and free speech rights.

Because we hold that the application of the OPAA to the Pageant in this regard

violates its free speech rights, we need not reach its freedom of association claim.

A.

We review grants of summary judgment de novo. Alpha Delta Chi-Delta

Chapter v. Reed, 648 F.3d 790, 796 (9th Cir. 2011). In First Amendment cases, “an

appellate court has an obligation to ‘make an independent examination of the whole

record’ to make sure that ‘the judgment does not constitute a forbidden intrusion on

the field of free expression.’” Bose Corp. v. Consumers Union of U.S., Inc., 466

7

U.S. 485, 499 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285

(1964)). In doing so, we may affirm the grant of summary judgment on any grounds

supported by the record. McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th

Cir. 2004).

B.

The First Amendment ensures that “Congress shall make no law … abridging

the freedom of speech.” U.S. Const. amend. I. The Fourteenth Amendment has

extended this principle to the states. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,

547 (1975). Our First Amendment jurisprudence has long understood “speech” to

extend “beyond written or spoken words as mediums of expression,” Hurley, 515

U.S. at 569, reaching so far as to include “various forms of entertainment and visual

expression as purely expressive activities,” Anderson v. City of Hermosa Beach, 621

F.3d 1051, 1060 (9th Cir. 2010). Unsurprisingly, these protections extend to

theatrical productions that “frequently mix[] speech with live action or conduct.”

Conrad, 420 U.S. at 558.

Beauty pageants fall comfortably within this ambit.3 As with theater, cinema,

or the Super Bowl halftime show, beauty pageants combine speech with live

performances such as music and dancing to express a message. And while the

3

See Pageant, Encyclopedia Britannica, https://www.britannica.com/art/pageant

(“a large-scale, spectacular theatrical production or procession”).

8

content of that message varies from pageant to pageant, it is commonly understood

that beauty pageants are generally designed to express the “ideal vision of American

womanhood.” Margot Mifflin, Looking for Miss America: A Pageant’s 100-Year

Quest to Define Womanhood 9 (2020). In doing so, pageants “provide communities

with the opportunity to articulate the norms of appropriate femininity both for

themselves and for spectators alike.” Nina Brown et al., Perspectives: An Open

Introduction to Cultural Anthropology 389 (2d ed. 2020).

Equally important to this case is understanding the method by which the

Pageant expresses its view of womanhood. Given a pageant’s competitive and

performative structure, it is clear that who competes and succeeds in a pageant is

how the pageant speaks. Put differently, the Pageant’s message cannot be divorced

from the Pageant’s selection and evaluation of contestants. This interdependent

dynamic between medium and message is well-established and well-protected in our

caselaw. See, e.g., Anderson, 621 F.3d at 1062 (“The process of expression through

a medium has never been thought so distinct from the expression itself that we could

disaggregate Picasso from his brushes and canvas, or that we could value Beethoven

without the benefit of strings and woodwinds.”); Brief for the American Civil

Liberties Union of Washington et al. as Amici Curiae Supporting Defendant at 22,

United States v. Waggy, 936 F.3d 1014 (9th Cir. 2019) (“Picketing is accompanied

by the conduct of holding a placard; leafleting is accompanied by the conduct of

9

standing on a sidewalk …. Calling it something other than speech does not make it

so.”).4 This means that, for certain expressive productions such as pageants, there is

no daylight between speech and speaker.

Miss United States of America and amici have offered an abundance of

examples to this effect, but the most prominent may be Broadway’s smash-hit

Hamilton. The musical utilizes hip-hop music and lyrics to detail the rise and fall of

Founding Father Alexander Hamilton5 and has garnered widespread attention from

the public and critics alike. Some of the musical’s popularity stemmed from its

casting choices, namely the decision to cast the predominately white Founding

Fathers with actors of color. That expressive decision was widely—though not

universally6—applauded. And it’s just as widely recognized that this choice was

central to the message of the musical itself. The “choice to enlist a mostly non-white

4

This idea also belies Green’s argument that the Pageant loses First Amendment

protections because it “is comprised of individual contestants … that are first and

foremost competitors.” This argument overlooks the importance of competition for

expressing a view on the feminine ideal. As amici explain, “the competitive aspect

of the pageant is essential to drawing the contestants together and spurring them on

to greater achievement and renown than they would otherwise attain on their own.”

5

Cf. Trafigura Trading LLC v. United States, 29 F.4th 286, 287 (5th Cir. 2022).

6

See, e.g., Camille Moore, ‘Hamilton’ and the erasure of white supremacy, The

Mich. Daily (Oct. 15, 2020), https://www.michigandaily.com/michigan-in-

color/hamilton-and-the-erasure-of-white-supremacy/ (“If the story of the Founding

Fathers were to be told based on the way America looks now, they should still be

portrayed as rich, white men who exploit and oppress low-income, Black people.

By erasing that their race had an active role in the power they had to oppress others,

we downplay the racism that they wrote into our country’s foundation.”).

10

cast … paints a picture of a more diverse nation whose history truly belongs to every

one of her inhabitants.” Zack Krajnyak, Hamilton: Why the Cast is Mostly People

of Color, Screenrant (Oct. 3, 2020), https://screenrant.com/hamilton-musical-cast-

people-color-black-reasons/. And this message could be delivered only by excluding

certain people from performing. As one commentator explained:

Now, what would the musical look like if Alexander Hamilton wasn’t

played by Lin-Manuel Miranda, and Aaron Burr wasn’t played by

Leslie Odom, Jr, but instead the characters were played by two capable,

talented white actors? The show would likely still be entertaining, but

the context and the conversation would change. … It’s a completely

different show.

Zeba Blay, No, The ‘Hamilton’ Casting Call for ‘Non-White’ Actors Is Not Reverse

Racism, HuffPost (Mar. 31, 2016, 12:30 PM), https://www.huffpost.com/entry/no-

the-hamilton-casting-call-for-non-white-actors-is-not-reverse-

racism_n_56fd2c83e4b0daf53aeed9b9.

Lin-Manuel Miranda—the creator and lead actor of Hamilton—agreed,

explaining that the decision to cast a diverse set of actors was integral to the musical

itself.

Our goal was: This is a story about America then, told by America now,

and we want to eliminate any distance—our story should look the way

our country looks. Then we found the best people to embody these

11

parts. I think it’s a very powerful statement without having to be a

statement.7

Rob Weinert-Kendt, Rapping a Revolution, N.Y. Times (Feb. 5, 2015),

https://www.nytimes.com/2015/02/08/theater/lin-manuel-miranda-and-others-

from-hamilton-talk-history.html (emphasis added). All of this means that

Hamilton’s expressive message was inescapably interwoven with its casting

decisions—whom the musical decided to cast and whom the musical decided to

exclude. Had some anti-discrimination statute been applied to Hamilton forcibly to

include white actors, the show simply would not be able to express the message it

desired. But such a use of the State’s power would violate “the fundamental rule of

protection under the First Amendment, that a speaker has the autonomy to choose

the content of his own message.” Hurley, 515 U.S. at 573.

Many pageants deploy a similar approach. For example, “Miss Asian

America” attempts to honor “Asian culture, beauty, and intelligence,” in part by

limiting its contestants to only those who have at least one-fourth Asian ancestry.

Miss Asian Global & Miss Asian America Pageant,

7

The notable exception to the diverse casting was King George III, who was played

by a white actor. As other commentators have explained, this casting decision not

only has “great visual representation,” but helps show the King as “a relic of what

was before; someone who wants to keep the status quo because it works for him,

rather than change it for the better of others.” James Hunt, Hamilton: Why King

George is the Only White Main Character, Screenrant, (July 28, 2020),

https://screenrant.com/hamilton-musical-king-george-character-white-reason/.

12

https://www.missasianglobal.com/apply/step1/ (last visited June 15, 2022),

https://www.missasianglobal.com/about/ (last visited June 15, 2022). The

“Christian Miss” pageant strives to “help[] young women shine bright in this world,”

in part by limiting contestants to only those who can affirm certain Christian

doctrines. Christian Miss, https://www.christianmiss.com/national-pageant (last

visited June 22, 2022), https://www.christianmiss.com/about (last visited June 22,

2022). Finally, “Miss International Queen” hopes “[t]o create equal[ity] and

acceptance in society” for individuals who identify as transgender, in part by limiting

contestants to members of that community. Miss International Queen,

https://www.missinternationalqueen.com/contest (last visited June 14, 2022).

This is likewise true for Miss United States of America. Miss United States

of America’s stated message is to “encourage women to strive to ACHIEVE their

hopes, dreams, goals, and aspirations,” and to “EMPOWER Women, INSPIRE

others, & UPLIFT everyone!” There is also an important communal element to Miss

United States of America, as the network of current and former contestants forms

“an elite sisterhood that gives support and encouragement to inspire each delegate

to be the best version of herself!” Miss United States of America determined, as did

every other pageant mentioned above, that including and excluding certain people

13

was the best means necessary to express and achieve this message.8 The Pageant

would not be able to communicate “the celebration of biological women” if it were

forced to allow Green to participate.9 As the district court explained, the Pageant’s

decision to limit contestants to “natural born female[s]” undoubtedly conveys that

message, because:

Someone viewing the decision to exclude transgender women (and

cisgender males) from a beauty pageant would likely understand that

the pageant organizers wished to convey some message about the

meaning of gender and femininity, and would probably also grasp the

specific implication that the pageant organizers did not believe

transgender women qualified as female.

8

Contrary to Green’s assertion, this is no less true even though the Pageant allows

the contestants some autonomy over their message through certain decisions such as

“their choice of gown and swimsuit, answers to on-stage questions, and

individualized platforms.” Again, a certain level of freedom for the contestants is

inevitable in the competitive medium that the Pageant deploys. Moreover, the First

Amendment does not require “a speaker to generate, as an original matter, each item

featured in the communication. Cable operators, for example, are engaged in

protected speech activities even when they only select programming originally

produced by others.” Hurley, 515 U.S. at 570.

9

What messages or viewpoints an organization decides to exclude can be as, or even

more, important than those it chooses to express. “The New Republic and National

Review are known as liberal and conservative magazines, respectively, precisely

because they generally don’t publish opinions from the other side (except perhaps

on rare occasions).” Eugene Volokh, The Law of Compelled Speech, 97 Tex. L. Rev.

355, 362 (2018). This means that “compelling speakers to include certain material

in their coherent speech product, thus barring them from distributing a speech

product that contains just the content that they want it to contain,” is “presumptively

unconstitutional.” Id. at 360–61.

14

The First Amendment affords the Pageant the ability to voice this message,

and to enforce its “natural born female” rule.10 “The First Amendment mandates

that we presume that speakers, not the government, know best both what they want

to say and how to say it.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 790–91 (1988). “Compelling individuals to mouth support for views they find

objectionable violates” core First Amendment protections, “and in most contexts,

any such effort would be universally condemned.” Janus v. Am. Fed’n of State,

10

The dissent objects to this conclusion by arguing that the Pageant cannot rely on

the fact “that it has a discriminatory belief that it hopes to further through its

business.” Lumping the Pageant in with the unenviable company of a “white

supremacist” bowling alley operator and a “militant feminist” hotel owner, the

dissent argues that these organizations could not discriminate against black bowlers

and men as an expression of their views, so neither can the Pageant discriminate

against individuals who identify as women. The analogy is as misguided as it is

loaded. The Pageant is limiting who can compete on stage as performers in

delivering a message to an audience. There is simply no parallel between that

dynamic and a bowler at a bowling alley or a patron simply staying at a hotel. All

we hold here is that Oregon cannot use the OPAA to force Miss United States of

America to conduct the pageant in a manner that compels it to speak a message it

“would rather avoid.” Hurley, 515 U.S. at 573. The dissent’s analogies would have

some purchase only if this were a case about the Pageant preventing Green from

watching the pageant as an audience member, not participating as an active and

public part of the pageantry. To make the point from the other direction: the

dissent’s analogies involving Oregon forcing the bowling alley operator or hotel

owner to “decorate” their establishments at odds with their views are much closer to

this case because, unlike bowlers and hotel guests, performers like Green are the

pageantry, and the pageantry is the message. Such analogies only underscore our

well-supported conclusion that this type of compelled expression runs afoul of the

First Amendment.

15

Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). And at the risk of

belaboring the point:

There can be no clearer example of an intrusion into the internal

structure or affairs of an association than a regulation that forces the

group to accept members it does not desire. Such a regulation may

impair the ability of the original members to express only those views

that brought them together.

Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).

Forcing the Pageant to accept Green as a participant would fundamentally

alter the Pageant’s expressive message in direct violation of the First Amendment.

Nevertheless, Green and amici argue there would be no First Amendment violation

if Green was allowed to participate. None of their arguments are persuasive.

i.

First, Green and amici argue that Miss United States of America never

actually expressed any viewpoint relating to the inclusion of biological males who

identify as women. As Green asserts, the Pageant “fails to demonstrate it had a long-

standing, central, and sincerely held belief related to transgender women.”

The problem with this claim is that it fails on two fronts. First, this argument

is leveled against the claim that the Pageant constitutes an expressive association

that merits First Amendment protection as to its freedom to associate, which is a

ground that we do not reach here. Second, even if the argument were relevant to the

Pageant’s free speech rights, it is a contention that is rejected in the caselaw. In

16

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Supreme

Court held that the forced inclusion of a group promoting homosexuality (GLIB) in

a St. Patrick’s Day parade violated the parade sponsors’ rights of free expression.

515 U.S. 557, 565–66 (1995). The Supreme Court reached this conclusion, even

though the sponsors had been “rather lenient in admitting participants” in past

parades and had not created a parade that “isolate[d] an exact message as the

exclusive subject matter of the speech.” Id. at 569–70. Moreover, the Court even

recognized that its speculation about the particular reasoning for the sponsors’

exclusion of GLIB might “give[] the Council credit for a more considered judgment

than it actively made.” Id. at 574. But nonetheless, the speaker’s decision “to

exclude a message it did not like … is enough to invoke its right as a private speaker

to shape its expression ….” Id.11 In short, the decision of a speaker “not to propound

a particular point of view”—regardless whether it is thoroughly reasoned, long-held,

11

Notably, the Court reached this holding notwithstanding a lower court’s

conclusion that the sponsors’ exclusion of GLIB was “‘paradoxical’ … since ‘a

proper celebration of St. Patrick’s and Evacuation Day require[d] diversity and

inclusiveness.” Hurley, 515 U.S. at 562 (citations omitted). The perceived

inconsistency of an “unsophisticated expression” was not a bar to the First

Amendment’s protection, because the free expression rights attached regardless. Id.

at 574; see also Boy Scouts of Am. v. Dale, 530 U.S. 640, 651 (2000) (instructing in

the expressive association context that “it is not the role of the courts to reject a

group’s expressed values because they disagree with those values or find them

internally inconsistent”).

17

or well-articulated—“is presumed to lie beyond the government’s power to control.”

Id.

The same holds true here. The Pageant allows only “natural born female[s]”

to compete and enforces this requirement, and repeatedly maintains that it does not

believe that biological males who identify as female are women. In fact, the Pageant

explains that it communicates these views on womanhood every time it uses the

word “woman,” because the fact that the Pageant “does not adjectivize the word

woman is part of the message: the word ‘woman’ so naturally means ‘born female’

that the Pageant does not need or use qualifiers.”12 This is more than sufficient under

current caselaw to substantiate the Pageant’s decision not to communicate a message

contrary to that position. “The fact that the organization does not trumpet its views

from the housetops … does not mean that its views receive no First Amendment

protection.” Dale, 530 U.S. at 656.

ii.

Alternatively, Green and amici argue that the forced inclusion would not

significantly burden the Pageant’s ability to advocate for its viewpoints. Because

Green “presents as stereotypically female,” so the argument goes, “[t]here is no

12

This argument is especially salient for controversies regarding transgenderism. As

our sister circuit has noted, an individual’s use or omission of certain words and

phrases in this context often reflects a “struggle over the social control of language

in a crucial debate about the nature and foundation, or indeed real existence, of the

sexes.” Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021) (citation omitted).

18

meaningful distinction between plaintiff and any of defendant’s cisgender female

contestants.” And Green seeks to participate “in the same means and manner” and

for the “same reasons” as the other contestants, so that participation would not pose

any significant burden on the Pageant or its message.

We disagree. First, Green’s insistence that “[t]here is no meaningful

difference between plaintiff and any of defendant’s cisgender female contestants” is

precisely the opposite statement of the one that the Pageant seeks to make. Green’s

inclusion in the Pageant would undeniably alter that message. This is true regardless

whether there are any discernable visible differences at all between Green and any

of the Pageant’s “cisgender female contestants.” To understand why this is so, we

return to Hurley. In Hurley, the Supreme Court refused to apply a Massachusetts

public accommodations law to the South Boston St. Patrick’s Day parade because

the First Amendment protected an expressive message that was less particularized

than the Pageant’s message is here. It noted that “a narrow, succinctly articulable

message is not a condition for constitutional protection, which if confined to

expressions conveying a ‘particularized message’ would never reach the

unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg,

or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S. at 569 (citation omitted).

How the First Amendment’s protection for non-particularized messages

applies to this case merits further elaboration. Like a parade, a pageant operates by

19

“combining multifarious voices” to make some “sort of collective point.” Id. at 568–

69. Because the inclusion of the plaintiff’s banner in Hurley would have affected

the parade’s collective message, the parade organizers were entitled to decide if that

message should be included.13 Similarly, the inclusion of a contestant who is not a

“natural born female” would impact the Pageant’s ability to express its collective

point. This remains true even if the message sent by a non-natural born female’s

inclusion into the Pageant is “not wholly articulate”—the Pageant nonetheless still

has the constitutional right to exclude the message for “whatever the reason.” Id. at

574, 575. And because of this, the Pageant’s control over the message remains the

same regardless whether those contestants intentionally broadcasted the fact that

they are not biological females, told only the Pageant, or even if they tried to keep

that fact completely to themselves.

Bolstering this claim is the fact that there would be at least one obvious impact

on the Pageant’s message: Requiring Miss United States of America to allow Green

to compete in its pageants would be to explicitly require Miss United States of

America to remove its “natural born female” rule from its entry requirements. This

in turn would directly affect the message that is conveyed by every single contestant

13

The Supreme Court further explained how low this threshold is for a message to

warrant protection. It concluded that a “private speaker does not forfeit

constitutional protection … by failing to edit their themes to isolate an exact

message as the exclusive subject matter of the speech.” Hurley, 515 U.S. at 569–

70.

20

in a Miss United States of America pageant. With the Pageant’s “natural born

female” rule, every viewer of a Miss United States of America pageant receives the

Pageant’s message that the “ideal woman” is a biological female, because every

contestant is a “natural born female.” If the Pageant were no longer able to enforce

its “natural born female” rule, even if a given transgender contestant or contestants

never openly communicated to anyone outside of the Pageant their transgender

status and were otherwise fully indistinguishable from the “natural born female”

contestants (at least as presented in the Pageant)—and more fundamentally, even if

no transgender contestants were to enter a Miss United States of America pageant—

the Pageant’s expression would nonetheless be fundamentally altered. Without the

“natural born female” rule, viewers would be viewing a fundamentally different

pageant from that which presently obtains: one which could contain contestants who

are not “natural born female[s].” 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.

The Supreme Court in Hurley did not insist on knowing the exact reason why the

parade organizers wished to exclude the parade float that promoted homosexuality.

Instead, it explained that “whatever the reason, it boils down to the choice of a

21

speaker not to propound a particular point of view, and that choice is presumed to

lie beyond the government’s power to control.” Hurley, 515 U.S. at 575.

Finally, it is simply incorrect to assert that the inclusion of only a single

participant would not significantly affect the speaker’s message. “Speech must be

viewed as a whole, and even one word or brush stroke can change its entire

meaning.” Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890, 909 (Ariz.

2019). “For example, in Hurley, the Supreme Court determined that one banner in

a parade of 20,000 participants changed the expressive content of the entire parade.”

Id. This was because the parade’s “overall message is distilled from the individual

presentations along the way, and each unit’s expression is perceived by spectators

as part of the whole.” Hurley, 515 U.S. at 577. That observation seems especially

apt here. The Pageant defines “women” as being natural born females. The most

natural and effective way for the Pageant to express this message is through its

uniform selection of only biological females as pageant contestants. Therefore,

allowing for the inclusion of even a single non-biological female as a “woman”

would certainly be an expressive decision revising the Pageant’s definition.

Applying this same reasoning to other First Amendment contexts

demonstrates the implausibility of the argument that the inclusion of Green would

not significantly affect the Pageant’s message. No one could seriously claim that

there would be no “substantial” effect on religious exercise if the Little Sisters of the

22

Poor were required to provide only a single contraceptive, Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2376 (2020); if a

Seventh-Day Adventist was forced to work only a single Sabbath, Sherbert v.

Verner, 374 U.S. 398, 403 (1963); or if a Christian baker were ordered to bake a

custom wedding cake for only one homosexual couple, Masterpiece Cakeshop, Ltd.

v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1724 (2018). Yet this is precisely the

reasoning Green and amici advance in their arguments. We properly rejected those

arguments in other First Amendment contexts, and again do so here.14

14

Contrary to the dissent’s assertion that Free Exercise cases “have no bearing on

the appropriate analysis,” the discussion provided here demonstrates the uniform

treatment that the caselaw has given these kinds of arguments. In fact, the Supreme

Court recently concluded that there is significant parity in the operations of the Free

Speech and Free Exercise Clauses when reviewing a football coach’s claim that the

local school district had violated both his free exercise and free expression rights

when he was fired for engaging in private religious speech. Kennedy v. Bremerton

Sch. Dist., 142 S. Ct. 2407 (2022). The Supreme Court explained that the “Clauses

work in tandem” and “provide[] overlapping protection” and rebuked our court for

treating these Clauses as hermetically sealed, “separate units.” Id. at 2421, 2426. It

held that a more “natural reading of th[e] sentence” in the First Amendment that

contains both Clauses communicates that they work towards the same ends. Id. at

2426. Furthermore, the Court applied the same analysis under both Clauses when

evaluating whether the school district had satisfied the proper level of scrutiny to

justify its intrusion on the coach’s rights. Id. at 2426–32 (explaining that the Court’s

analysis does not depend on “[w]hether one views the case through the lens of the

Free Exercise or Free Speech Clause,” as the result was the same under “the First

Amendment’s double protection”). Thus, the reasoning of Free Exercise caselaw is

directly applicable to the concern raised in this case: that even a purportedly minor

modification of the Pageant’s message by Green’s inclusion can result in a

significant impact on the Pageant’s overall message. That outcome is exactly what

23

iii.

Nor, contrary to Green’s and the dissent’s argument, does it matter that the

Pageant is a for-profit entity that engages in commerce. No one disputes that the

Pageant is a for-profit corporation that generates revenue from advertising, fees, and

other activities, but that alone is not enough to strip the Pageant of its First

Amendment rights.15 “It is well settled that a speaker’s rights are not lost merely

because compensation is received; a speaker is no less a speaker because he or she

is paid to speak.” Riley, 487 U.S. at 801; see also Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) (describing as “beyond

serious dispute” the idea “that speech does not lose its First Amendment protection

because money is spent to project it, as in a paid advertisement of one form or

another”).

And while the Pageant does have commercial elements, those elements cannot

strip it of its First Amendment rights. A non-commercial “mission” is wholly

the First Amendment’s protection of free expression guards against: compelling a

party to convey a message it does not wish to articulate.

15

The dissent’s extensive discussion of the Pageant’s various revenue streams and

commercial activity only belabors this uncontested point. We could, for example,

outline in equal depth the various revenue streams of a for-profit newspaper

(subscriptions, advertisements, premium content, etc.), but no one would doubt that

the newspaper is entitled to First Amendment protections. See Sullivan, 376 U.S. at

265–66 (dismissing as “wholly misplaced” the notion that a newspaper company

loses First Amendment protections for publishing a “paid, ‘commercial’

advertisement”).

24

unnecessary for First Amendment protections to apply—to require otherwise would

be to denigrate the right of a businessman to speak. Regardless of whether Miss

United States of America is motivated by the purse, or instead the promotion of

purely philosophical notions of what it is to be a woman—or some mix of

motivations—its right to speak on these matters is protected.

Even if a non-commercial “mission” was required, the Pageant would still

prevail in this respect. The widespread recruitment of contestants may increase

revenue, but it likewise increases the Pageant’s ability to serve as an “important site[]

for the construction of national feminine identity.” Sarah Banet-Weiser, The Most

Beautiful Girl in the World: Beauty Pageants and National Identity 31 (2005). This

important focus on producing pageantry also explains why the Pageant would

occasionally reject potential contestants, and therefore forfeit potential revenue.

Even though money is involved, the expressive message remains an obvious priority.

Here, no less than with other commercial expression, “[e]ven when that expression

is for sale—Hamilton tickets do not come cheap—people are paying for the

expression.” Brian Soucek, The Constitutional Irrelevance of Art, 99 N.C. L. Rev.

685, 746 (2021) (citation omitted). Our court has recognized that numerous other

entities, including “publishers and purveyors of books and newspapers, concert

promoters, cable television franchisers,” and many others do not lose First

Amendment protection merely because of “their sale of expression.” IDK, Inc. v.

25

Clark Cnty., 836 F.2d 1185, 1194 (9th Cir. 1988); Masterpiece Cakeshop, 138 S. Ct.

at 1745 (Thomas, J., concurring in part and concurring in the judgment) (noting that

“this Court has repeatedly rejected the notion that a speaker’s profit motive gives the

government a freer hand in compelling speech”). Given the sweeping protection for

expressive entities that similarly engage in commerce, we have no difficulty

concluding that Miss United States of America merits the same.

iv.

Finally, it seems clear that Green’s argument proves too much. In addition to

sexual identity, the OPAA covers numerous other protected categories, including

“sex,” “marital status,” and “age.” See Or. Rev. Stat. § 659A.403. Miss United

States of America has eligibility requirements around each of these categories, so it

would seem that Green’s argument would apply with equal force, for example, to

the Pageant’s decision to exclude a male who identifies as a man. The same holds

true for an octogenarian who would like to compete in the Pageant, as well as a

pregnant mother of five. The Pageant would seemingly have to include any and all

of these contestants, even though the Pageant has decided that these classes of

individuals are not properly suited to express the Pageant’s message on who is the

“ideal woman.” And this logic does not stop at eligibility requirements, but would

seemingly apply even to the judging of contestants. As amici have noted, at least

one jurisdiction’s anti-discrimination law includes “personal appearance” as a

26

protected category, which, if applied in this context, would cast into doubt the very

possibility of a beauty pageant at all. See D.C. Code § 1402.31(a).

* * *

In short, Miss United States of America expresses its message in part through

whom it chooses as its contestants, and the First Amendment affords it the right to

do so.

C.

All of this is confirmed by Hurley. As previously noted, Hurley addressed

whether a Massachusetts public accommodations law could be used to force a

private parade to include a message that the organizers opposed. Boston allowed a

private organization to coordinate an annual St. Patrick’s Day parade on Boston’s

streets, which over the years grew into a large production. Hurley, 515 U.S. at 560–

61. One year the organization received an application from “GLIB,” a group who

wanted to “express pride in their Irish heritage as openly gay, lesbian, and bisexual

individuals.” Id. at 561. After the organizers denied the request, GLIB sued. The

organizers responded by arguing the forced inclusion of GLIB would violate the

First Amendment by forcing the parade to communicate a conflicting message. Id.

at 563. The Supreme Court unanimously agreed and invalidated the application of

the law.

27

First, the Supreme Court observed that a parade is “a form of expression, not

just motion, and the inherent expressiveness” of its pageantry affords it First

Amendment protections. Id. at 568 (emphasis added). It next examined GLIB and

concluded that its “participation as a unit in the parade was equally expressive.” Id.

at 570. GLIB was formed for the purpose of celebrating “its members’ identity as

openly gay, lesbian, and bisexual descendants of the Irish immigrants” and “to show

that there are such individuals in the community.” Id. This would therefore have

the unmistakable purpose of communicating this idea under the banner of the St.

Patrick’s Day parade.

The Supreme Court then specified the exact nature of the exclusion. Unlike

normal applications of a public accommodations law, the statute here was used to

admit “GLIB as its own parade unit carrying its own banner.” Id. at 572. The

problem with this was that because “every participating unit affects the message

conveyed by the private organizers, the state courts’ application of the statute

produced an order essentially requiring petitioners to alter the expressive content of

their parade.” Id. at 572–73; see also Soucek, The Constitutional Irrelevance of Art,

supra, at 745 (arguing that application of the law “would force a change to the

organizers’ message no less than a law that dictated what elements a composer could

include in their score”). The Court then struck down the application of the law,

28

holding that to allow such forced inclusion would unconstitutionally impinge on the

parade’s First Amendment right to tailor its own speech.

It is impossible not to perceive the strong parallels between this case and what

drove the Supreme Court’s analysis in Hurley. As already explained, the Pageant is

engaged in an inherently expressive activity. And forcing the inclusion of Green in

a Miss United States of America 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. For this reason, we conclude the district court erred in refusing to

apply Hurley to this case.

D.

While Hurley governs this case, the district court elected to analyze the

Pageant’s free speech claim under the framework established in United States v.

O’Brien and denied its claim. For the reasons stated below, we disagree.

First, it must be noted that the facts underlying O’Brien are materially

different than this case. O’Brien was charged for willfully burning his draft card in

violation of federal law. O’Brien, 391 U.S. at 370. O’Brien argued the law violated

his First Amendment right to free speech because he burned the card publicly in

hopes of influencing “others to adopt his antiwar beliefs.” Id. The Supreme Court

rejected O’Brien’s First Amendment argument in part because the law requiring

29

people not to destroy their draft card “is in no respect inevitably or necessarily

expressive.” Id. at 385. Put differently, the law was consistent with the First

Amendment because not destroying the draft card was not itself a statement in

support of the war, or indeed any statement about the war at all.

The O’Brien framework governs First Amendment claims when evaluating

government regulations that have “only an incidental effect on protected speech.”

Dale, 530 U.S. at 659. This generally occurs “when ‘speech’ and ‘nonspeech’

elements are combined in the same course of conduct.” O’Brien, 391 U.S. at 376.

Under this “intermediate standard of review,” Dale, 530 U.S. at 659, a government

regulation can survive:

[1] if it is within the constitutional power of the Government; [2] if it

furthers an important or substantial governmental interest; [3] if the

governmental interest is unrelated to the suppression of free expression;

and [4] if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that

interest.

O’Brien, 391 U.S. at 377.

When the district court applied the fourth part of this test to the Pageant, it

held that the OPAA only “incidentally restricts [the Pageant’s] expressive conduct

in a way no further than essential.” But as described above, the restriction on

expression when applying the OPAA to the Pageant cannot properly be described as

merely “incidental.” Instead, forcing the Pageant to include Green would directly

30

impact and contradict the message that the Pageant currently expresses regarding the

celebration of natural born biological females. O’Brien is inapplicable here.

The Supreme Court reached an analogous conclusion in Hurley. Despite

acknowledging that the Massachusetts public accommodation law was normally

“well within the State’s usual power,” the Supreme Court found that its application

to the parade posed a significant First Amendment problem. Hurley, 515 U.S. at

572. As it explained, “once the expressive character of both the parade and the

marching GLIB contingent is understood, it becomes apparent that the state courts’

application of the statute had the effect of declaring the sponsors’ speech itself to be

a public accommodation,” which was beyond the scope of the state’s power. Id. at

573. By the statute’s direct operation on the parade sponsors’ speech itself, the

Supreme Court found that it had violated the sponsors’ right “to choose the content

of his own message.” Id.; see also Dale, 530 U.S. at 659 (finding O’Brien

inapplicable because there could be no “incidental effect on protected speech” when

the challenged law “directly and immediately affect[ed]” the Boy Scouts’ First

Amendment rights). Here too, as explained, forcing the inclusion of Green into a

Miss United States of America pageant would “directly and immediately affect[]”

the Pageant’s expression. As the district court correctly noted, “[t]he facts here

present a binary choice,” either Green competes or not. But unlike in O’Brien, both

choices inevitably express a message. Not accepting Green reinforces the Pageant’s

31

message that the ideal model of femininity is necessarily biologically female, while

being forced to include Green necessarily contradicts that message. Either way, a

message is being communicated. Thus, there is no daylight between the message

and the admission of contestants to the Pageant. And such daylight is necessary for

a law to have a merely “incidental” rather than a “direct[] and immediate[]” effect

on the speech in question.16 The district court therefore erred in analyzing this case

under O’Brien.

E.

Application of the OPAA would force the Pageant to include Green and

therefore alter its speech. Such compulsion is a content-based regulation under our

caselaw, and as such warrants strict scrutiny. See Riley, 487 U.S. at 795 (“Mandating

speech that a speaker would not otherwise make necessarily alters the content of the

speech. We therefore consider the Act as a content-based regulation of speech.”);

see also Am. Beverage Ass’n v. City & Cnty. of San Francisco, 916 F.3d 749, 759

(9th Cir. 2019) (Ikuta, J., concurring in the result) (“A government regulation

‘compelling individuals to speak a particular message’ is a content-based regulation

16

This explains why the dissent’s highlighting the distinction between Green’s

activism and status is inapposite. As explained in more detail in Section III.B.ii,

supra, the inclusion of a transgender woman, whether an activist or one whose status

is not publicly known, compels the Pageant to abandon its “natural born female”

requirement, which itself conveys a message about how the Pageant views the “ideal

woman.” Thus, O’Brien is inapplicable here; the Pageant’s choice of contestants is

the message that is directly, not incidentally, changed by application of the OPAA.

32

that is subject to strict scrutiny ….” (quoting Nat’l Inst. of Fam. & Life Advocs. v.

Becerra, 138 S. Ct. 2361, 2372–73 (2018))).

Content-based regulations “are presumptively unconstitutional and may be

justified only if the government proves that they are narrowly tailored to serve

compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

Given the heightened concerns over chilling free speech, the Supreme Court has

demanded that “precision … be the touchstone” of any law regulating speech. Nat’l

Inst. of Fam., 138 S. Ct. at 2376 (quoting NAACP v. Button, 371 U.S. 415, 438

(1963)) (cleaned up). Additionally, there must be “even more immediate and urgent

grounds” to uphold a law that forces “involuntary affirmation of objected-to beliefs.”

Janus, 138 S. Ct. at 2464 (internal quotation marks omitted) (emphasis added)

(quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943)). These

requirements are daunting, and the OPAA’s application here does not meet the

challenge.

As a threshold matter, the application of the OPAA in this context lacks the

requisite compelling interest. Green and amici point to Oregon’s stated reasons for

passing the OPAA, which include remedying discrimination that inflicts “serious

mental, financial, and emotional harm on transgender individuals.” But this

formulation is insufficient, as the “First Amendment demands a more precise

analysis” than the “high level of generality” offered here. Fulton v. City of

33

Philadelphia, 141 S. Ct. 1868, 1881 (2021). Fulton addressed Philadelphia’s

decision to no longer partner with a faith-based foster care service over that service’s

belief that “marriage is a sacred bond between a man and a woman” and its

corresponding decision not to certify same-sex couples. Id. at 1875. The Supreme

Court held that Philadelphia’s refusal to work with the agency burdened the group’s

religious exercise rights and was not a generally applicable practice, and thus

warranted strict scrutiny. Id. at 1877. In its briefing, Philadelphia asserted three

compelling interests for its non-discrimination policies: “maximizing the number of

foster parents, protecting the City from liability, and ensuring equal treatment of

prospective foster parents and foster children.” Id. at 1881. The Court rejected that

characterization of the City’s interests as insufficiently precise, explaining that the

question “is not whether the City has a compelling interest in enforcing its non-

discrimination policies generally, but whether it has such an interest in denying an

exception to [this specific foster care agency].” Id.

Once properly framed, the Supreme Court found Philadelphia’s reasons

lacking, and the same is true here. The state of Oregon has offered only “eliminating

discrimination against LGBTQ individuals” as a compelling interest, but this broad

formulation alone cannot suffice. Green offers nothing more precise, and instead

admits that Miss United States of America has done nothing to prevent Green from

participating in other pageants or to prevent Green from expressing any message by

34

any other means. See Hurley, 515 U.S. at 577–78 (rejecting the notion that

homosexual members of the Massachusetts community would have their views

“destroyed in the absence of the challenged law” and noting that GLIB failed to

identify “any other legitimate interest … in support of applying the Massachusetts

statute” to require the parade to accept the group).

Bolstering this argument is the courts’ long-standing hesitation to enforce

anti-discrimination statutes in the speech context. “[A]s compelling as the interest

in preventing discriminatory conduct may be, speech is treated differently under the

First Amendment.” Telescope Media Grp. v. Lucero, 936 F.3d 740, 755 (8th Cir.

2019). This means that while “antidiscrimination laws are generally

constitutional, … a ‘peculiar’ application that required speakers ‘to alter their

expressive content’ was not.” Id. (cleaned up) (citation omitted); see also Christian

Legal Soc’y v. Walker, 453 F.3d 853, 863 (7th Cir. 2006) (“[T]he Supreme Court

has made it clear that antidiscrimination regulations may not be applied to expressive

conduct with the purpose of either suppressing or promoting a particular

viewpoint.”). Application of the anti-discrimination law to the Pageant here would

necessarily impact its message. When considering antidiscrimination interests in the

special context of First Amendment expressive activity, the Supreme Court has

directed lower courts to “prevent the government from requiring [private

organizations’] speech to serve as a public accommodation for others.” Telescope

35

Media, 936 F.3d at 755. Honoring that dynamic in this case requires prohibiting the

application of the OPAA to eliminate Miss United States of America’s “natural born

female” rule.

IV.

Our dissenting colleague objects not only to the merits of our ruling, but also

to our decision to reach the merits at all. The dissent claims to have unearthed a

previously undiscovered procedural issue that means we cannot, or at least should

not, reach the First Amendment claim. The alleged problem is that the district court

ruled on the Pageant’s First Amendment claims without first determining if the

OPAA applies to the Pageant. According to the dissent, this would render any ruling

on the constitutional merits improper and instead requires that we remand the case

for the district court to decide whether the OPAA applies.

But there is a reason that neither party, nor the numerous amici in this case,

even hinted at the “error” that the dissent identifies17—it does not exist. Every day

in jurisdictions across this country, courts assume answers to predicate questions to

resolve claims on legal and constitutional grounds. Instead of utilizing this

commonplace practice to work toward a just and speedy resolution of this case, the

dissent proposes a radical expansion of the constitutional avoidance doctrine that

17

The parties filed supplemental briefing on the issue only after an order from this

court sua sponte raised it and required a response. See ECF No. 74.

36

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, which courts have repeatedly recognized in a variety of analogous

contexts. Both the district court and our court have now concluded that the First

Amendment prevents Green from forcing the Pageant to change its message by

including Green. 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.

A.

The dissent argues that Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),

requires that we remand the case to the district court, because that is what “an

Oregon court would do with respect to this state-law statutory claim.” But nothing

in the dissent supports that categorical assertion. The dissent begins with a list of

cases that stand for the uncontroversial yet unilluminating principle that Oregon

courts will often—perhaps generally—elect to resolve a case on statutory grounds

before addressing constitutional issues when both are before the court. But the

dissent goes much further than Oregon courts have gone, effectively reading in a de

facto exhaustion requirement that all antecedent non-constitutional questions must

37

be addressed before the court can reach any constitutional question. We are aware

of no jurisdiction that has such a rule; Oregon courts certainly do not.

Instead, Oregon courts have shown flexibility in resolving cases involving

multiple claims. And nothing in Oregon cases indicates that a court must force

parties needlessly to litigate an unraised claim in the First Amendment context just

to comply with some preferred order of operations. For example, in Neumann v.

Liles, the Oregon Supreme Court addressed a First Amendment defense to a

defamation claim. 369 P.3d 1117 (Or. 2016). In that case, the parties elected not to

raise “the issue of whether [defendant’s] statements are protected under Article I,

section 8, of the Oregon Constitution.” Id. at 1120 n.4. This created a possible

problem for the Oregon Supreme Court, since it would ordinarily “look to our state

constitution before addressing any federal constitutional issues.” Id. at 1123 n.6

(emphasis added). This left the court with two options: (1) remand the case and

force the parties to address an unlitigated but possibly dispositive state-law issue that

the court preferred to address before any federal constitutional issue; or (2) resolve

the case on the federal constitutional issue already raised. The court chose the latter.

See id. at 1126 (holding that the defendant’s statement “is an expression of opinion

on matters of public concern that is protected under the First Amendment”). Nor

was this a one-off occurrence. See, e.g., Church at 295 S. 18th St., St. Helens v.

Emp. Dep’t, 28 P.3d 1185, 1190 (Or. Ct. App. 2001); Klein v. Or. Bureau of Lab. &

38

Indus., 410 P.3d 1051, 1064 (Or. Ct. App. 2017), cert. granted, judgment vacated,

139 S. Ct. 2713 (2019).

State v. Barrett, 255 P.3d 472 (Or. 2011), offers another example. In Barrett,

the Oregon Supreme Court explicitly decided to resolve the case on a constitutional

claim without addressing an accompanying statutory claim. Instead of wading into

a statutory issue that was “less clear,” the court concluded “that this is an appropriate

occasion in which to address the victim’s constitutional claims without also

addressing or resolving” the statutory claim. Id. at 477.18

The dissent’s citation to cases involving the OPAA does nothing to alter this

conclusion. In Schwenk v. Boy Scouts of America, 551 P.2d 465 (Or. 1976), the

Oregon Supreme Court resolved the case by concluding the OPAA did not apply to

the defendant and therefore declined to address the defendant’s First Amendment

arguments. See id. at 469 n.5. But that was in a case where the interpretation and

application of the OPAA was fully briefed by the parties, so the court could

immediately resolve the case on those grounds. See id. at 466–67. Schwenk says

nothing about what an Oregon appellate court would do when it could not resolve

18

To its credit, the dissent acknowledges Barrett as cutting against the general rule

it purports to ascertain. But it attempts to distinguish Barrett because there the

Oregon Legislature had “created a clear and expedited procedural path for a victim

[of stalking] to assert claims for the violation of her constitutional rights.” Far from

distinguishing Barrett, this only demonstrates that the State of Oregon has, like the

federal courts have, shown a special concern for resolving First Amendment claims

expeditiously.

39

the claim on statutory grounds but could immediately resolve it on constitutional

grounds by vindicating a constitutional protection.

Lahmann v. Grand Aerie of Fraternal Order of Eagles, 43 P.3d 1130 (Or. Ct.

App. 2002), is similarly unilluminating. There, an Oregon trial court below ruled on

summary judgment that a male-only group was required to admit women under the

OPAA. Id. at 1130–31. On appeal, the Oregon appellate court thought that whether

the OPAA applied to the group turned on a disputed issue of material fact and

therefore remanded the case to the trial court. Id. at 1137–38. But Lahmann differs

from our case because the parties there disputed whether the public accommodation

law applied, while the parties here do not. The group in Lahmann had argued on

appeal that “the Public Accommodation Act was not intended to reach the

membership policies of private organizations.” Id. at 1131. The Pageant here has

done no such thing, and actually explained that it “did not dispute, for purposes of

the summary judgment motion, that it is a public accommodation subject to

Oregon’s Act.”19

Regardless, nowhere in Lahmann did the court purport to establish any rule

about the OPAA and constitutional claims. Instead, it determined that a remand was

appropriate only “[i]n this case.” Id. at 1137 (emphasis added). The court thought

19

In doing so, the Pageant was clear that it was stipulating to this fact for purposes

of summary judgment, but reserved the right to dispute this fact, if necessary, at later

stages of the litigation. See Fed. R. Civ. P. 56(c)(1)(A).

40

there was conflicting evidence in the record about whether the Eagles were “in the

business of selling memberships and whether their membership criteria are

unselective.” Id. This fact could potentially “bear on the constitutional issue” of

whether application of the OPAA “violates the right of association,” id. at 1138, so

the court reasoned that further factual development could be beneficial—not just to

a threshold issue, but also the constitutional issue itself. In contrast, here we find the

current record on appeal sufficient to resolve the case on the Pageant’s free speech

claim.

All said, a common theme emerges: Oregon courts do not handcuff

themselves to the rigid methodological hierarchy proposed by the dissent. Instead,

Oregon courts utilize their discretion in each case to determine how best to resolve

the matter. We follow this same course of action and conclude that resolution of the

case under the Pageant’s constitutional claim is the best path forward.20

B.

Hedging against the idea that the caselaw can shoulder the heavy burden of

its categorical command, the dissent alternatively argues that even if we can decide

20

The dissent also expresses worry over the opinion being advisory, primarily since

it relies on an assumption “not definitively supported by the extant record.” Of

course, that is true of any and every motion to dismiss (where no facts are supported

by the record), so this concern cannot alone be enough to render an opinion advisory.

It is beyond dispute that this decision impacts “real people involved in a real

controversy, not hypothetical requests for an advisory opinion.” Thomas v.

Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1141 (9th Cir. 2000) (en banc).

41

this case, we should not. The primary concern voiced by the dissent is the doctrine

of constitutional avoidance, or the idea that a court should resolve a case, when

possible, on statutory grounds before reaching any constitutional question. No one

disputes the “long tradition of constitutional avoidance,” but the dissent would

stretch the doctrine beyond recognition.

If every non-constitutional claim must be exhausted before reaching a

constitutional issue, it is not clear how any constitutional question could ever be

decided on a pre-trial motion, which happens routinely. Nor is it clear how courts

could retain any level of discretion about what order to decide issues when resolving

cases. Given these far-reaching implications of the dissent’s argument, it is

unsurprising that this view of constitutional avoidance finds no support from other

courts.

The Eleventh Circuit, for example, had a case much like this one where it had

to determine if Amazon violated a public accommodations law by excluding a

Christian ministry from its charity program. Instead of first determining if the statute

even applied to Amazon, the Eleventh Circuit resolved the claim on First

Amendment grounds. It explained that “[w]e have not determined if non-physical

spaces, like websites, qualify as places of public accommodation,” but it did not need

to resolve that question “because we find [Plaintiff’s] claim fails regardless on First

42

Amendment grounds.” Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6

F.4th 1247, 1256 n.12 (11th Cir. 2021) (emphasis added).

The Eleventh Circuit is not alone in assuming that a place qualifies as a public

accommodation in order to address the underlying legal claims. See Boy Scouts of

Am. v. D.C. Comm’n on Hum. Rts., 809 A.2d 1192, 1196 (D.C. 2002) (resolving the

case on First Amendment grounds after assuming “without deciding that the Human

Rights Act was intended to reach a membership organization such as the Boy Scouts

as a ‘place of public accommodation’”); Adams ex rel. Harris v. Boy Scouts of Am.-

Chickasaw Council, 271 F.3d 769, 778 (8th Cir. 2001) (“Like the district court, we

find it unnecessary to decide whether the camp was a place of public accommodation

because appellants’ claim under § 2000a fails for other reasons.”).

The Supreme Court has also bypassed a disputed and dispositive factual

question at summary judgment to resolve the claim immediately on First

Amendment grounds. In Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980), the Supreme Court invalidated a local ordinance

that banned the solicitation of charitable contributions by organizations that did not

use at least 75% of those funds for “charitable purposes.” Id. at 622. The case was

decided at the summary judgment stage, even though it was never definitely resolved

whether the charity in question met the 75% threshold. Id. at 626–27. Before the

Supreme Court, the locality argued that “summary judgment was improper because

43

there was an unresolved factual dispute concerning the true character of [the

charity’s] organization.” Id. at 633. The Supreme Court rejected this argument,

concluding that the charity was entitled to win on its First Amendment claim “even

if there was no demonstration that [the charity] itself was one of these

organizations.” Id. at 634. In other words, the Supreme Court did exactly what our

court does here: resolved the matter based on the First Amendment defense even

though the parties had simply assumed the factual question of whether the ordinance

applied to the charity in the first instance.

This happens with other constitutional claims as well. Until recently, it was

commonplace for appellate courts—including our own—to assume that a law in

question implicated the Second Amendment and then resolve the case on the

constitutional merits of the claim.21 When faced with the complicated factual

question of “whether the proscribed weapons are in common use for lawful purposes

like self-defense,” the First Circuit punted, instead explaining:

Mindful that “[d]iscretion is often the better part of valor,” United

States v. Gonzalez, 736 F.3d 40, 40 (1st Cir. 2013), we are reluctant to

plunge into this factbound morass. In the end, “courts should not rush

to decide unsettled issues when the exigencies of a particular case do

not require such definitive measures.” Privitera v. Curran (In re

Curran), 855 F.3d 19, 22 (1st Cir. 2017). For present purposes, we

simply assume, albeit without deciding, that the Act burdens conduct

21

The Supreme Court thoroughly rejected this framework in New York State Rifle &

Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), because it was “inconsistent with

Heller’s historical approach and its rejection of means-end scrutiny.” Id. at 2129.

44

that falls somewhere within the compass of the Second Amendment.

Worman v. Healey, 922 F.3d 26, 35–36 (1st Cir. 2019). Our circuit recently did the

same. In Duncan v. Bonta, we addressed a Second Amendment challenge to a law

that functionally banned “large-capacity magazines.” 19 F.4th 1087 (9th Cir. 2021)

(en banc), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022). In that case, the

en banc majority faced the step-one question whether the Second Amendment

covered conduct regulated by the statute. It explained:

In many cases raising Second Amendment challenges, particularly

where resolution of step one is uncertain and where the case raises

“large and complicated” questions, United States v. Torres, 911 F.3d

1253, 1261 (9th Cir. 2019), we have assumed, without deciding, that

the challenged law implicates the Second Amendment.… Accordingly,

we follow the “well-trodden and ‘judicious course’” of assuming,

without deciding, that California’s law implicates the Second

Amendment.

19 F.4th at 1103 (citation omitted) (Graber, J.). In short, our court elected to avoid

a complicated question whether the Second Amendment applied to the regulated

conduct and assumed that it did to resolve the claim on the constitutional merits. If

we were willing to do this with the Second Amendment, it is not clear why we would

not do the same with the First.22

22

The dissent disputes the relevance of our court’s frequent (but now defunct)

practice in Second Amendment cases of assuming, without deciding, that a party’s

right to bear arms is implicated by a statute. In the dissent’s view, a court that

assumes that the facts of a case raise a colorable constitutional claim without

deciding that the relevant constitutional provision necessarily applies conducts a

45

None of the three Supreme Court cases cited by the dissent supports its

variation of the constitutional avoidance doctrine, nor do they bear direct relevance

to this case. Spector Motor Service, Inc. v. McLaughlin involved a district court

judgment in favor of the plaintiff on the grounds that a challenged tax statute did not

apply to the plaintiff. 323 U.S. 101, 102 (1944). The Second Circuit ignored that

ruling and simply assumed the challenged tax statute did apply to the plaintiff to

resolve the case on the merits. Id. at 102–03. The Supreme Court vacated the

judgment of the Second Circuit, in part because it “would not be called upon to

decide any of these questions of constitutionality … if, as the District Court held,

the statute does not at all apply.” Id. at 104 (emphasis added). That is a different

procedural posture than what we have before us, where the district court made no

such ruling either way.

Escambia County v. McMillan, 466 U.S. 48 (1984) (per curiam), also has

dispositive differences from our case. There, a district court invalidated an at-large

election system under both constitutional and statutory grounds. McMillan, 466 U.S.

distinct inquiry from a court that assumes that a colorable statutory provision is

implicated without affirmatively deciding whether the statute applies. But in both

instances, courts are proceeding to the merits of the issue after having bypassed the

threshold question by assuming that the facts alleged raise a colorable claim. Thus,

this court’s analysis in the Second Amendment context is certainly relevant. It

demonstrates that, in deciding constitutional claims, we have been more than willing

to make threshold applicability assumptions akin to what the dissent decries as

improper here.

46

at 49. The Fifth Circuit had also found the election system unconstitutional, but in

doing so it declined to review the district court’s statutory rulings. Id. at 50. Because

the district court’s ruling “rested alternately upon the Voting Rights Act,” the

Supreme Court remanded the case to the Fifth Circuit to determine “whether the

Voting Rights Act provides grounds for affirmance of the District Court’s

judgment.” Id. at 51, 52. McMillian therefore supports the idea that a court of

appeals should not affirm a district court’s constitutional ruling without also

addressing the statutory rulings; it does not speak to the situation where, like here,

the district court’s only ruling was constitutional.

Finally, United States v. Locke included “nonconstitutional questions actually

decided by the lower court as well as nonconstitutional grounds presented to, but not

passed on, by the lower court.” 471 U.S. 84, 92 (1985). The Court began with “the

nonconstitutional questions pressed below,” id., and then turned to constitutional

analysis, id. at 103–10. It is again not clear how this directs our court today, given

the fact that the district court here ruled solely on the Pageant’s constitutional claims.

The cases cited by the dissent fail to support its ambitious conclusion. Had

the district court ruled on the application of the OPAA to the Pageant, this would be

a different case, much more similar to the cases cited by the dissent. But the district

court did not, and the constitutional avoidance doctrine cannot be stretched so far as

to apply to the case before us.

47

C.

The dissent also claims that the “majority opinion is fatally inconsistent” in

assuming that the OPAA applies while concluding that the Pageant is sufficiently

selective in choosing its participants to merit First Amendment protection. But there

is nothing inconsistent about reaching those two conclusions—Oregon courts that

have interpreted the OPAA have alluded to situations where the OPAA could apply

even if a party’s First Amendment rights are implicated.

The OPAA is analyzed under the decades-old Lahmann test, which considers

whether an organization is a “place of public accommodation” by asking: “(1)

whether it is a business or commercial enterprise and (2) whether its membership

policies are so unselective that the organization can fairly be said to offer its services

to the public.” Abraham v. Corizon Health, Inc., 511 P.3d 1083, 1094 (Or. 2022)

(emphasis added) (quoting Lahmann, 43 P.3d at 1137). Rather than state, as the

dissent does, that “not offer[ing] a place or service to the public at all” is the general

metric for determining if the OPAA applies, Lahmann suggests that the selectivity

necessary for a business to be covered by the OPAA lies somewhere on the spectrum

between providing full public access and operating under complete exclusivity.23

23

The dissent itself acknowledges this elsewhere in its opinion, by stating that “[i]t

is possible that, if Defendant is sufficiently selective, the OPAA does not apply to it”

(emphasis added). But by acknowledging this, it is the dissent’s analysis that is

internally inconsistent—specifically, its conclusion that the Pageant may not be

48

And as already noted, the Lahmann court remanded for additional fact-finding on

whether the OPAA applied, which substantiates this less categorical reading of the

Oregon caselaw.

The dissent seemingly agrees that the OPAA can apply to organizations that

are somewhat selective in the provision of their services—even citing to the recent

decision by the Oregon Supreme Court so holding. See Abraham, 511 P.3d at 1091

(citing Lahmann favorably).24 But, the dissent nonetheless criticizes the majority

for “hold[ing] both that the OPAA is assumed to apply to Defendant and that

subject to the OPAA. When describing the selectivity permitted under the OPAA,

the dissent distinguishes between selective private organizations and businesses,

contending that the OPAA applies to the latter and not to the former. Yet the dissent

spends pages of its First Amendment analysis explaining its view that Miss USA’s

commercial attributes are a reason to conclude that it does not merit First

Amendment protection. We disagree with the dissent’s view of how commercial

attributes affect the First Amendment analysis. But the dissent’s view that such

attributes are the hook for OPAA applicability, together with the dissent’s explicit

recognition that the Pageant has those very attributes, is effectively a concession that

the Pageant is bound by the OPAA. And this inconsistency is not resolved by the

dissent’s insistence that its First Amendment analysis is based on an assumption,

because the Pageant’s commercial attributes that the dissent discusses are not mere

assumptions, but rather uncontested facts pulled directly from the record in this case.

If the dissent were not to misconstrue Oregon caselaw and were to acknowledge the

full scope of a business’s protected right to free expression, we are confident that the

dissent would have to accede to the holding we reach in our merits analysis of Miss

USA’s free expression rights.

24

Notably, the Oregon Supreme Court reached this holding after it rejected the

“defendant’s contention that [the OPAA’s reference to] services offered to the public

[is] limited to services that [a]re offered on ‘an indiscriminate or unscreened basis.’”

Abraham, 511 P.3d at 1091.

49

Defendant is so selective that it is not offering a place or service to members of the

public.” We are not “holding” that Miss USA is bound by the OPAA. We instead

believe that there are sufficiently clear grounds in Oregon caselaw under Lahmann

and Abraham to suggest that the OPAA applies even though Miss USA selectively

chooses whom its competitors will be. Indeed, Lahmann and Abraham are not the

only Oregon cases to conclude that the OPAA could apply to a business that is

selective and whose selectivity involves speech, like Miss USA. See also Lloyds

Lions Club of Portland v. Int’l Ass’n of Lions Clubs, 724 P.2d 887, 889–91 (Or. Ct.

App. 1986) (applying the OPAA to a non-profit community service

organization with membership criteria). This clear support in Oregon law strongly

supports our assumption that Miss USA is bound by the OPAA.

Thus, there is nothing unreasonable or contradictory about assuming that the

OPAA could apply to the Pageant and then holding that such an application would

violate its free expression rights. And as explained above, given that the OPAA’s

application to Miss USA would constitute a content-based regulation of Miss USA’s

speech that is not substantiated by a compelling interest, the strength of Miss USA’s

free expression rights necessitates that we conclude that Miss USA prevails on the

merits of its claims.

50

D.

By attempting to expand the doctrine of constitutional avoidance, the dissent

runs squarely into an equally well-established constitutional principle. A

fundamental value of our First Amendment jurisprudence is the protection against

the chilling of lawful speech. See, e.g., Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting) (“I think that we should be eternally vigilant against

attempts to check the expression of opinions that we loathe ….”); Ashcroft v. Free

Speech Coal., 535 U.S. 234, 255–56 (2002).

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), explained how the mere

threat of litigation can lead to self-censorship. In establishing an extremely speech-

protective standard against certain libel claims, the Supreme Court explained:

A rule compelling the critic of official conduct to guarantee the truth of

all his factual assertions—and to do so on pain of libel judgments

virtually unlimited in amount—leads to a comparable ‘self-censorship.’

Allowance of the defense of truth, with the burden of proving it on the

defendant, does not mean that only false speech will be

deterred. … Under such a rule, would-be critics of official conduct may

be deterred from voicing their criticism, even though it is believed to

be true and even though it is in fact true, because of doubt whether it

can be proved in court or fear of the expense of having to do so. They

tend to make only statements which ‘steer far wider of the unlawful

zone.’ … The rule thus dampens the vigor and limits the variety of

public debate. It is inconsistent with the First and Fourteenth

Amendments.

376 U.S. at 279; see also Smith v. People of the State of Cal., 361 U.S. 147, 150–51

(1959).

51

As recognized in Sullivan and countless other cases, the First Amendment’s

protections extend to not only unconstitutional laws, but also to unnecessary

litigation that chills speech. This is why federal courts have emphasized the

importance of resolving First Amendment cases at the earliest possible junction. As

the D.C. Circuit explained:

In the First Amendment area, summary procedures are even more

essential. For the stake here, if harassment succeeds, is free debate ....

Unless persons … desiring to exercise their First Amendment rights are

assured freedom from the harassment of lawsuits, they will tend to

become self-censors.

McBride v. Merrell Dow & Pharms. Inc., 717 F.2d 1460, 1467 (D.C. Cir. 1983)

(citation omitted). Contrary to the dissent’s speech-hostile version of constitutional

avoidance, we follow a well-trodden path by reaching and deciding a dispositive

First Amendment issue that will avoid forcing the parties through unnecessary and

protracted litigation.

The First Amendment’s overbreadth doctrine takes this principle even further,

shielding third parties from unnecessary litigation when the First Amendment would

resolve their potential claim. Modern overbreadth doctrine requires the invalidation

of any law that “seeks to prohibit such a broad range of protected conduct.”

Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 796 (1984). This means that plaintiffs “are permitted to challenge a statute not

because their own rights of free expression are violated, but because of a judicial

52

prediction or assumption that the statute’s very existence may cause others not

before the court to refrain from constitutionally protected speech or expression.”

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). To do so, they must show “a

realistic danger that the statute itself will significantly compromise recognized First

Amendment protections of parties not before the Court.” Taxpayers for Vincent,

466 U.S. at 801. In other words, the overbreadth doctrine requires courts to assume

and evaluate purely hypothetical fact patterns to vindicate First Amendment interests

of parties not even before the court.25

Our circuit has acknowledged that, in light of the overwhelming importance

of protecting expression, the overbreadth doctrine can operate as “an exception” to

certain case and controversy requirements. See S.O.C., Inc. v. Cnty. of Clark, 152

F.3d 1136, 1142 (9th Cir. 1998) (citation omitted); see also Broadrick, 413 U.S. at

610–11; Bigelow v. Virginia, 421 U.S. 809, 815–16 (1975) (collecting cases). The

reason for this deviation from the norm? An unwavering “interest in preventing an

invalid statute from inhibiting the speech of third parties who are not before the

Court.” Taxpayers for Vincent, 466 U.S. at 800. “If the rule were otherwise, the

contours of regulation would have to be hammered out case by case—and tested

25

The doctrine has extended beyond purely speech to also protect the right of

association. See Broadrick, 413 U.S. at 612 (“Overbreadth attacks have also been

allowed where the Court thought rights of association were ensnared in statutes

which, by their broad sweep, might result in burdening innocent associations.”).

53

only by those hardy enough to risk criminal prosecution to determine the proper

scope of regulation.” Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). The

overbreadth doctrine was thus crafted with an explicit aim of limiting the chilling

effect of litigation on free expression by expeditiously vindicating First Amendment

rights—even for nonparties. It is not clear how the dissent can reconcile this well-

established doctrine with the view of constitutional avoidance it propounds here.

That the dissent inaccurately characterizes how constitutional avoidance

works—particularly with respect to the First Amendment—is further demonstrated

by our court’s well-established practice in trademark infringement cases. The heart

of such cases is often the fact-intensive issue of consumer confusion. Yet under the

federal courts’ decades-old “Rogers” test, when an alleged infringing defendant

makes the “threshold legal showing” that the supposed trademark infringement is

protected by the First Amendment, it eliminates the need to reach the fact-bound

consumer confusion issue at all. See, e.g., Gordon v. Drape Creative, Inc., 909 F.3d

257, 264 (9th Cir. 2018) (applying Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)).

Courts regularly apply the Rogers test in precisely the same procedural posture as

this case: summary judgment. See, e.g., Gordon, 909 F.3d at 268; Mattel, Inc. v.

MCA Recs., Inc., 296 F.3d 894 (9th Cir. 2002); Mattel, Inc. v. Walking Mountain

Prods., 353 F.3d 792, 807 (9th Cir. 2003); Twentieth Century Fox Television, a

54

division of Twentieth Century Fox Film Corp. v. Empire Distrib., Inc., 875 F.3d

1192, 1198 (9th Cir. 2017).

Indeed, the Rogers requirement that the First Amendment inquiry comes first

is so well established that we have reversed a district court for failing to answer the

predicate First Amendment issue before analyzing the statutory issue. See VIP Prod.

LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1175–76 (9th Cir. 2020)

(“Because Bad Spaniels is an expressive work, the district court erred in finding

trademark infringement without first requiring [Plaintiff] to satisfy at least one of the

two Rogers prongs.”). Although there would be nothing impermissible here had the

district court reviewed whether OPAA applied as the dissent proposes, the reversal

in VIP Product shows that the hard-and-fast rule urged by the dissent simply does

not exist. In a variety of contexts, our court has a demonstrated practice of resolving

claims on First Amendment grounds first instead of needlessly litigating possibly

dispositive fact-bound questions, notwithstanding the dissent’s categorical claims to

the contrary.

Oregon itself has demonstrated this same commitment to resolving speech

claims quickly by enacting its own anti-SLAPP laws. As explained by the Oregon

courts:

SLAPP is an acronym for strategic lawsuits against public participation.

See Neumann v. Liles, 369 P.3d 1117 (Or. 2016). Anti-SLAPP statutes

seek to minimize the effect of strategic suits intended to deter persons

from expressing their views. Id. Their goal is to permit defendants who

55

are targeted for their statements to end such suits quickly and with

minimal expense. Id.

Handy v. Lane Cnty., 385 P.3d 1016, 1020 n.4 (Or. 2016); see also Staten v. Steel,

191 P.3d 778, 787 (Or. Ct. App. 2008) (explaining that Oregon’s “legislators

explained that [the anti-SLAPP law’s] purpose is to provide for the dismissal of

claims against persons participating in public issues, when those claims would be

privileged under case law, before the defendant is subject to substantial expenses in

defending against them”). The dissent notes the Pageant’s anti-SLAPP motion but

dismisses its importance because, if it turned out after further litigation that the

OPAA did not apply, the anti-SLAPP motion itself could be resolved on non-

constitutional grounds. But that ignores a central purpose of an anti-SLAPP statute:

to avoid protracted litigation over threshold factual issues when the claim can be

more quickly resolved on pure legal grounds.26

26

It is important not to miss the startling real-world implications of the dissent’s

uniquely expansive conception of constitutional avoidance. If the musical Hamilton

came to Oregon and someone seeking to play a part sued the production company

under the OPAA, the production could not have the case dismissed on First

Amendment or anti-SLAPP grounds without first fully adjudicating whether the

OPAA applies to the production—including the attendant discovery and expense of

litigating that “threshold” question. While no doubt the highly acclaimed Hamilton

production could afford to pay for such litigation however long it drags on, it is easy

enough to see how a smaller production company would consider cutting out

performances—that is, stop speaking—in Oregon altogether to avoid a prolonged

lawsuit.

56

This willingness to avoid the real-world costs of prolonged litigation by

deciding constitutional issues is not only limited to the First Amendment context; it

is recognized in other contexts as well. Qualified immunity is an example: “The

basic thrust of the qualified-immunity doctrine is to free officials from the concerns

of litigation ….” Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009). This is because the

litigation process “exacts heavy costs in terms of efficiency and expenditure of

valuable time and resources.” Id.; see also Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982) (observing that “there is the danger that fear of being sued will dampen the

ardor of all but the most resolute, or the most irresponsible [public officials], in the

unflinching discharge of their duties” (citation omitted)). To ensure protection

against the side-effects of avoidable litigation, the Supreme Court “recognized an

entitlement not to stand trial or face the other burdens of litigation, conditioned on

the resolution of the essentially legal question whether the conduct of which the

plaintiff complains violated clearly established law.” Mitchell v. Forsyth, 472 U.S.

511, 526 (1985) (emphasis added). In other words, the Supreme Court has instructed

lower courts to resolve legal questions—including constitutional questions—when

doing so will mitigate the harms of prolonged litigation.

* * *

The dissent nicely describes how constitutional avoidance can effectuate

important interests. But neither the federal courts nor Oregon’s courts have applied

57

the doctrine as categorically as the dissent proposes for this case, especially in the

First Amendment context. And for good reason: doing so would work irreparable

harm to the Constitution itself, rendering the protection of speech in cases like this

more theoretical than real. It is the dissent’s approach, not the majority’s, that would

present a novel and unwarranted departure from well-established practice.

V.

The Supreme Court has explained that, “[p]erhaps because such compulsion

so plainly violates the Constitution, most of our free speech cases have involved

restrictions on what can be said, rather than laws compelling speech.” Janus, 138 S.

Ct. at 2464. But the First Amendment’s protections remain no less robust where, as

here, compelled expression is the problem. See id. Green seeks to use the power of

the state to force Miss United States of America to express a message contrary to

what it desires to express. The First Amendment says no. The district court’s order

granting summary judgment for the Pageant is therefore AFFIRMED.

58

Anita Green v. Miss United States of America, No. 21-35228 FILED

VANDYKE, Circuit Judge, concurring: NOV 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I.

As explained in the majority opinion, the forced inclusion of Anita Green into

the Miss United States of America pageant constitutes compelled speech that

violates the First Amendment. But the Pageant also argues that the First Amendment

independently protects its freedom to associate and affords it the ability to exclude

unwanted members. The dissent disagrees, concluding that the OPAA “neither

improperly compels speech nor violates the owner’s freedom of association.”

Because it need not, the majority opinion does not reach the association claim. But

I write separately to respond to the dissent and explain why the Pageant is protected

not only from compelled speech, but also forced association by being required to

include Green in its pageantry.

II.

A.

The First Amendment’s protection of association is a natural outworking of

the Amendment’s structure. “[W]e have long understood as implicit in the right to

engage in activities protected by the First Amendment a corresponding right to

associate with others in pursuit of a wide variety of political, social, economic,

educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609,

1

622 (1984). Without such protection, there would be little preventing “the majority

from imposing its views on groups that would rather express other, perhaps

unpopular, ideas.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 647–48 (2000). And

of course, the “[f]reedom of association … plainly presupposes a freedom not to

associate.” Jaycees, 468 U.S. at 623.

To warrant associative protection, a group must: (1) engage in expressive

activity; (2) that would be impacted by the forced inclusion of an unwanted

individual; and (3) show that the government’s interest underlying the law does not

outweigh the group’s interest in the freedom of expression. See Dale, 530 U.S. at

643, 658–59. This framework—by design and in practice—is highly protective of

and deferential to associations. Unsurprisingly, the Pageant is entitled to its

protection.

B.

To merit associative protection, a group must first show that it engages in

“expressive association.” Id. at 648. This standard is not demanding, as the

“expressive association” designation extends well beyond “advocacy groups” to

include any group that engages “in some form of expression, whether it be public or

private.” Id. As our sister circuit has noted, “[t]he Supreme Court has cast a fairly

wide net in its definition of what comprises expressive activity.” Pi Lambda Phi

Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 443 (3d Cir. 2000). Our circuit

2

is no different, going as far as to say a group’s “distribution of sanctified vegan and

vegetarian food” could warrant protection as expressive activity. See Krishna Lunch

of S. Cal., Inc. v. Gordon, 797 F. App’x 311, 313 (9th Cir. 2020). Given our lenient

standard, a pageant consisting of speeches, costumes, and elaborate ceremonies in

furtherance of its ideal vision of femininity certainly qualifies.

But the pageantry itself is not the only way in which Miss United States of

America engages in expressive activity. The Pageant also seeks to develop and

promote female role models. This includes highlighting the volunteerism done by

past participants on the Pageant’s social media accounts, all of which furthers the

Pageant’s stated mission of “advocating a platform of community service.” This

aspect of the Pageant’s mission parallels the Boy Scout’s desire to “instill values in

young people,” “both expressly and by example.” Dale, 530 U.S. at 649, 650. The

Supreme Court found that mission sufficiently expressive, so it follows that the

Pageant’s message should be given the same treatment. And even if there was any

doubt about the nature of the Pageant’s expression, we are required to “give

deference to an association’s assertions regarding the nature of its expression.” Id.

at 653. As all the above makes clear, the Pageant sees itself as inherently expressive,

so proper deference is warranted.

Green challenges this conclusion by arguing for a different governing

framework. Unlike the expansive and deferential test established in Dale, Green

3

points to Justice O’Connor’s concurrence in Jaycees for guidance. In that

concurrence, Justice O’Connor drew a distinction between the First Amendment

“rights of commercial association and rights of expressive association.” Jaycees,

468 U.S. at 634 (O’Connor, J., concurring). Although determining how much

commercial activity is needed before an association forfeits this protection cannot

“be articulated with simple precision,” Justice O’Connor believed that “an

association should be characterized as commercial, and therefore subject to

rationally related state regulation of its membership and other associational

activities, when, and only when, the association’s activities are not predominantly

of the type protected by the First Amendment.” Id. at 635. Under this test, Green

argues that the Pageant should be characterized as a commercial organization

lacking full First Amendment protections.

Green’s argument fails for multiple reasons, but the first is simple: a

concurrence is not binding on this court. Justice O’Connor concurred precisely

because her view was not adopted by the Court majority. In fact, Justice O’Connor

lamented that the majority “has adopted a test that unadvisedly casts doubt on the

power of States to pursue the profoundly important goal of ensuring

nondiscriminatory access to commercial opportunities in our society.” Id. at 632.

In other words, the majority’s opinion—which is binding on this court—is more

protective of associational freedoms than the framework Justice O’Connor desired.

4

There is simply no warrant in our constitutional order for a lower court to swap

binding Supreme Court precedent for a different rule proposed by a single justice.

Perhaps sensing the boldness of this position, Green attempts to ground the

argument by claiming that the Ninth Circuit officially adopted Justice O’Connor’s

framework in IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir. 1988). If we had,

it would be error for the reasons just explained. But thankfully we didn’t. IDK

centered on numerous escort services’ First Amendment challenge to a Nevada

county regulation regarding prostitution. Id. at 1187–88. In rejecting this claim, our

court dismissed the escort services’ argument that they were entitled to First

Amendment protections as expressive associations. The county contended that the

escort services were engaged in “purely commercial activity,” while the escort

services countered that the sale of their “expression” was akin to newspapers and

other protected associations. Id. at 1194–95. Given this debate, our court did cite

Justice O’Connor’s concurrence as one possible standard to adjudicate the claim. Id.

at 1195. But immediately after citing the concurrence, our court concluded that

“[u]nder any test it is clear that the escort services are primarily commercial

enterprises, and their activities are not predominantly of the type protected by the

first amendment.” Id. (emphasis added). Apart from referencing Justice O’Connor’s

concurrence, the panel in reaching its ultimate conclusion also looked at the text of

the First Amendment and identified as “most important” the fact that escort services

5

made “no claim that expression is a significant or necessary component of their

activities.” Id. at 1195–96. Nowhere in the analysis did our court expressly or

implicitly adopt Justice O’Connor’s framework as binding.

And in any event, the Pageant would still be entitled to First Amendment

protection as an expressive association even under Justice O’Connor’s framework.

The crux of Justice O’Connor’s position is that a group forfeits First Amendment

protection “when, and only when, the association’s activities are not predominantly

of the type protected by the First Amendment.” Jaycees, 468 U.S. at 635 (O’Connor,

J., concurring). As explained in the majority opinion, Miss United States of America

is an expressive association with the “primary purpose” of “produc[ing] pageants.”

The Pageant certainly has commercial aspects, but they are not independent of the

Pageant’s ultimate expressive purpose—indeed, they help further that purpose, no

less than a for-profit newspaper’s charging for subscriptions helps further its

fundamentally expressive purpose. Because it is undeniable that pageantry is

protected expression under the First Amendment, it follows that the Pageant should

be considered an expressive association under Justice O’Connor’s framework.

This stands in stark contrast to the organization at issue in Jaycees. In Justice

O’Connor’s words, the “Jaycees—otherwise known as the Junior Chamber of

Commerce—is, first and foremost, an organization that, at both the national and

local levels, promotes and practices the art of solicitation and management.” Id. at

6

639. Unlike the Pageant, the “Jaycees itself refers to its members as customers and

membership as a product it is selling. More than 80 percent of the national officers’

time is dedicated to recruitment, and more than half of the available achievement

awards are in part conditioned on achievement in recruitment.” Id. It is not hard to

see why the Jaycees and the Pageant would be classified differently under Justice

O’Connor’s framework.

C.

Because the Pageant is an expressive association, the next step is to determine

whether the forced inclusion of an unwanted member would impact the

organization’s ability to express its desired viewpoints. See Dale, 530 U.S. at 653.

“As we give deference to an association’s assertions regarding the nature of its

expression, we must also give deference to an association’s view of what would

impair its expression.” Id.

Miss United States of America maintains that the forced inclusion of a male

would impair its ability to express its views regarding womanhood, and for good

reason. The Pageant’s goal is “empowering biological women” through its platform

and pageantry. Green is not a biological woman—and as explained in the majority

opinion, is a vocal advocate for a conflicting viewpoint. Green self-identifies as “a

trans woman” and “activist” who wants to “fight for the LGBTIQ community by

bringing attention to the issues we face.” Green’s inclusion would therefore actively

7

advance a message the Pageant opposes. And the forced inclusion of Green would

be especially harmful to the Pageant because, as Green explained with other

pageants, “I was given the opportunity to have my voice heard on a scale much larger

than I could have ever anticipated.” The tensions between these two messages are

obvious, as is the fact that the forced inclusion of Green would impact the Pageant’s

ability to express its desired views.

Again, all of this is confirmed by Dale. While the Boy Scouts “desire[d] to

not ‘promote homosexual conduct as a legitimate form of behavior,’” id., Dale

by his own admission, is one of a group of gay Scouts who have

“become leaders in their community and are open and honest about

their sexual orientation.” … Dale was the copresident of a gay and

lesbian organization at college and remains a gay rights activist. Dale’s

presence in the Boy Scouts would, at the very least, force the

organization to send a message, both to the youth members and the

world, that the Boy Scouts accepts homosexual conduct as a legitimate

form of behavior.

Id.

Relying in part on Hurley v. Irish-American Gay, Lesbian and Bisexual Group

of Boston, 515 U.S. 557 (1995), the Supreme Court concluded that the forced

inclusion of Dale would impermissibly alter the Boy Scouts’ message, explaining

that just

[a]s the presence of GLIB in Boston’s St. Patrick’s Day parade would

have interfered with the parade organizers’ choice not to propound a

particular point of view, the presence of Dale as an assistant

scoutmaster would just as surely interfere with the Boy Scouts’ choice

not to propound a point of view contrary to its beliefs.

8

Dale, 530 U.S. at 654. The case before us is not meaningfully distinguishable.

Importantly, this impact on the Pageant’s viewpoint is clear without requiring

the Pageant to explain in depth the nature and extent of its opposition to Green’s

views. In Hurley, the Court surmised that “[t]he parade’s organizers may not believe

these facts about Irish sexuality to be so, or they may object to unqualified social

acceptance of gays and lesbians or have some other reason for wishing to keep

GLIB’s message out of the parade.” 515 U.S. at 574–75; see also Dale, 530 U.S. at

654. Miss United States of America may disagree with the ontological or

teleological assumptions underpinning transgenderism,1 worry over the physical and

1

See, e.g., Ryan T. Anderson, Anthropological Fallacies, Public Discourse (June

16, 2022), https://www.thepublicdiscourse.com/2022/06/82881/ (critiquing body-

self dualism and expressive individualism by noting that “[m]odern man, however,

seeks to be ‘true to himself.’ Rather than conform thoughts, feelings, and actions to

objective reality (including the body), man’s inner life itself becomes the source of

truth. The modern self … seeks to give expression to our individual inner lives,

rather than seeing ourselves as embodied beings, embedded in communities and

bound by natural and supernatural laws. Authenticity to inner feelings, rather than

adherence to transcendent truths, becomes the norm.”); Robert P. George, Gnostic

Liberalism, First Things (Dec. 2016),

https://www.firstthings.com/article/2016/12/gnostic-liberalism (“If we are body-

mind (or body-soul) composites and not minds (or souls) inhabiting material bodies,

then respect for the person demands respect for the body, which rules out mutilation

and other direct attacks on human health. … Sex is constituted by our basic

biological organization with respect to reproductive functioning; it is an inherent

part of what and who we are. Changing sexes is a metaphysical impossibility

because it is a biological impossibility.”).

9

psychological ramifications for “gender-affirming” medical courses of action,2 or

believe that the inclusion of men who identify as women in feminine spaces will

undermine the hard-earned progress made by women in society.3 But here, as in

Hurley and Dale, it is enough to note the obvious conflict and defer to the Pageant’s

assertion that Green’s forced inclusion would alter its desired message.

D.

Given that the Pageant is both an expressive association and that inclusion of

Green would impact the Pageant’s ability to express its viewpoints, the law can

survive only upon passing heightened scrutiny. See Dale, 530 U.S. at 657–59. As

2

See, e.g., Paul McHugh, Transgender Surgery Isn’t the Solution, Wall St. J. (May

13, 2016), https://www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-

the-solution-1402615120; Leor Sapir, A Cause, Not a Cure, City Journal (May 10,

2022) https://www.city-journal.org/new-study-casts-doubt-on-gender-affirming-

therapy (noting that a new study on the efficacy of “gender affirming” therapy

“provides further evidence that ‘gender-affirming’ therapy creates or prolongs the

very problem it purports to solve”); Abigail Shrier, Irreversible Damage: The

Transgender Craze Seducing our Daughters (2020).

3

See, e.g., Brief for Women’s Liberation Front Supporting Defendant at 17 (“Green

believes that femaleness is defined by femininity, which is a socially constructed

role that by design keeps women in a subordinate, subservient position. That is what

Green believes about women’s natural state. Feminists have been fighting against

this toxic system for generations.”); Pat Ralph, Penn swimmer Lia Thomas sets six

records at Ivy League Championships, Phillyvoice (Feb. 21, 2022)

https://www.phillyvoice.com/lia-thomas-penn-transgender-swimmer-ivy-league-

championships/ (noting that Lia Thomas (a male who now identifies as a woman

after three years of competing as a male), “had a banner performance at the Ivy

League Women’s Swimming & Diving Championships last weekend, winning three

individual events and breaking six records.”).

10

explained in Dale, the court must balance “the associational interest in freedom of

expression … on one side of the scale, and the State’s interest on the other.” Id. at

658–59. Although attempts to weigh such grandiose concepts might otherwise

appear daunting, the Supreme Court has offered clear lines of demarcation in this

context. The caselaw has established that the general anti-discrimination interests

behind a state’s public accommodation laws are insufficient to justify a substantial

intrusion on an organization’s First Amendment rights. In Dale, the Supreme Court

concluded that

[t]he state interests embodied in New Jersey’s public accommodations

law do not justify such a severe intrusion on the Boy Scouts’ rights to

freedom of expressive association. That being the case, we hold that

the First Amendment prohibits the State from imposing such a

requirement through the application of its public accommodations law.

Id. at 659. The Court conducted the same balancing of interests in Hurley and

reached a similar result. Id. (“[T]he analysis we applied [in Hurley] is similar to the

analysis we apply here.”). There, the Court, again balancing the First Amendment

interests of the association against the state’s interest manifested in the public

accommodations law, sided with the association. It explained that:

When the law is applied to expressive activity in the way it was done

here, its apparent object is simply to require speakers to modify the

content of their expression to whatever extent beneficiaries of the law

choose to alter it with messages of their own. But in the absence of

some further, legitimate end, this object is merely to allow exactly what

the general rule of speaker’s autonomy forbids.

Hurley, 515 U.S. at 578.

11

Of course, ruling for the association under this test is not always guaranteed.

In Jaycees, the Supreme Court held that the Jaycees, a male-only club centered

around providing young men “with opportunity for personal development and

achievement” was not sufficiently burdened by the inclusion of women to warrant

First Amendment protection. 468 U.S. at 612–13. As the Court explained, “the

Jaycees has failed to demonstrate that the Act imposes any serious burdens on the

male members’ freedom of expressive association.” Id. at 626. This was in part

because the forced inclusion of women “requires no change in the Jaycees’ creed of

promoting the interests of young men.” Id. at 627. Also important was the fact that

“the Jaycees already invites women to share the group’s views and philosophy and

to participate in much of its training and community activities.” Id.

Given these three data-points, there is little doubt that Miss United States of

America falls far closer to Dale and Hurley than Jaycees. The Pageant expresses its

message through its contestants—both by those who compete and those who

ultimately succeed. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings

Coll. of the L. v. Martinez, 561 U.S. 661, 680 (2010) (“who speaks on its

behalf … colors what concept is conveyed”). And the Pageant has actively and

consistently enforced its eligibility requirements precisely over a concern about

protecting its message. The forced inclusion of a male would therefore directly

12

impact the Pageant’s message in a way fundamentally at odds with the Pageant’s

views on womanhood.

III.

Speech and association claims often run together. This is because “[e]ffective

advocacy of both public and private points of view, particularly controversial ones,

is undeniably enhanced by group association, as this Court has more than once

recognized by remarking upon the close nexus between the freedoms of speech and

assembly.” NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958).

Given this reality, it should not be a surprise to anyone that the Pageant’s association

claim, like its free speech claim, is meritorious.

13

FILED

Green v. Miss United States of America, No. 21-35228 NOV 2 2022

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting: U.S. COURT OF APPEALS

The majority opinion marks a radical departure from the well-settled

principle that we should consider non-constitutional grounds for decision before

reaching constitutional issues—the doctrine of constitutional avoidance.1 After

Defendant Miss United States of America, LLC, denied Plaintiff Anita Green’s

request to compete in an Oregon pageant on the ground that she is a transgender

woman, Plaintiff brought a single state-law claim under the Oregon Public

Accommodations Act (“OPAA”), invoking diversity jurisdiction. It is not clear on

the present record whether the OPAA even applies to Defendant. Without

allowing discovery or briefing on that question, and without making any relevant

findings, the district court assumed that the statute applies, held that the First

Amendment precludes its application, and entered judgment for Defendant. In

doing so, the court doubly erred. If the OPAA applies, Plaintiff must prevail. If

the OPAA does not apply, Defendant must prevail, but the constitutional argument

passes out of the picture. Unfortunately, the majority opinion repeats the same

1

In using the phrase “constitutional avoidance,” throughout this dissent I refer to

the principle that federal courts should not decide constitutional questions

unnecessarily, as described in Ashwander v. Tennessee Valley Authority, 297 U.S.

298. 346–48 (1936) (Brandeis, J., concurring). I do not refer to the interpretive

tool, the canon of constitutional avoidance, derived from that broader principle.

mistakes. I therefore respectfully but emphatically dissent.

A. Under Settled Principles of Federal Law, We Should Refrain from

Deciding the Constitutional Issue Now.

Precedents of the Supreme Court and this court dictate that we should not

rule on the constitutionality of the OPAA until it is established that the OPAA

actually applies to Defendant. The Supreme Court has not minced words: “If

there is one doctrine more deeply rooted than any other in the process of

constitutional adjudication, it is that we ought not to pass on questions of

constitutionality . . . unless such adjudication is unavoidable.” Spector Motor

Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). Sitting en banc, we have

summarized in equally sweeping terms: “Prior to reaching any constitutional

questions, federal courts must consider nonconstitutional grounds for decision.

This is a fundamental rule of judicial restraint.” United States v. Kaluna, 192 F.3d

1188, 1197 (9th Cir. 1999) (en banc) (quoting Jean v. Nelson, 472 U.S. 846, 854

(1985)) (internal quotation marks omitted). We recently reaffirmed that principle

specifically with respect to an alternative state-law ground: “It is well-established

that [we] should avoid adjudication of federal constitutional claims when

alternative state grounds are available.” Potter v. City of Lacey, 46 F.4th 787, 791

(9th Cir. 2022) (brackets in original) (quoting Cuviello v. City of Vallejo, 944 F.3d

816, 826 (9th Cir. 2019)) (internal quotation marks omitted); accord Hewitt v.

2

Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991). Despite that settled rule, the majority

opinion skips over an essential step in the analysis when it holds that, if the OPAA

applied to Defendant, the statute would violate Defendant’s First Amendment

rights.

This error is especially critical because Defendant raises only an as-applied

challenge. If the statute does not apply, then an opinion as to the constitutionality

of the statute’s hypothetical application to Defendant is advisory. See Poe v.

Ullman, 367 U.S. 497, 503 (1961) (“This court can have no right to pronounce an

abstract opinion upon the constitutionality of a State law.” (citation and internal

quotation marks omitted)); MacNeil v. Marks (In re MacNeil), 907 F.2d 903, 904

(9th Cir. 1990) (per curiam) (describing an advisory opinion as one “advising what

the law would be upon a hypothetical state of facts” (citation and internal quotation

marks omitted)).

The majority opinion’s insistence on reaching an unnecessary constitutional

issue breaks from a long tradition of constitutional avoidance in the federal courts.

In Washington State Grange v. Washington State Republican Party, 552 U.S. 442,

450–51 (2008), Justice Thomas, writing for the Court, discussed the benefits of

deciding as-applied, as opposed to facial, challenges to statutes. As-applied

challenges avoid subverting “the fundamental principle of judicial restraint that

3

courts should neither ‘anticipate a question of constitutional law in advance of the

necessity of deciding it’ nor ‘formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied.’” Id. (quoting Ashwander

v. Tenn. Valley Auth., 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring)).

Justice Thomas drew from Justice Brandeis’s concurrence in Ashwander, which

laid out “a series of rules under which [the Court] has avoided passing upon a large

part of all the constitutional questions pressed upon it for decision.” Ashwander,

297 U.S. at 346 (Brandeis, J., concurring). Both rules cited by Justice Thomas—a

rule against anticipating a constitutional question when not necessary and a rule

against formulating constitutional rules that go beyond the precise facts involved in

the application of the relevant statute—suggest that we should not decide whether

a state statute is unconstitutional as applied unless it first has been determined that

the state statute in question actually applies to the defendant. 2

2

Contrary to the majority opinion’s assertion, applying this standard principle

would not prevent courts from deciding “any” constitutional question pre-trial.

Maj. Op. at 42. Facial constitutional challenges would not be affected in any way,

nor would as-applied constitutional challenges in which it is clear that the allegedly

offending statute actually applies. Because Defendant challenges the OPAA only

as applied to it in the circumstances here, precedents involving facial constitutional

challenges—including Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980)—are readily distinguishable. Cases applying

the overbreadth doctrine, such as Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789, 796 (1984) and Broadrick v. Oklahoma, 413 U.S. 601, 612

(1973), analyze whether a statute is constitutional on its face and are similarly

(continued)

4

Justice Brandeis laid out two other rules in Ashwander that are implicated by

this case. First, “[t]he Court will not pass upon a constitutional question although

properly presented by the record, if there is also present some other ground upon

which the case may be disposed of.” Id. at 347. “Thus, if a case can be decided on

either of two grounds, one involving a constitutional question, the other a question

of statutory construction or general law, the Court will decide only the latter.” Id.

Second, “[t]he Court will not pass upon the validity of a statute upon complaint of

one who fails to show that he is injured by its operation.” Id.

Ashwander has long been a lodestar in our jurisprudential constellation.

See, e.g., Bond v. United States, 572 U.S. 844, 855 (2014) (Roberts, C.J.) (“[I]t is a

‘well-established principle governing the prudent exercise of this Court’s

jurisdiction that normally the Court will not decide a constitutional question if

there is some other ground upon which to dispose of the case.’” (quoting Escambia

County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam) and citing Ashwander,

297 U.S. at 347)); Slack v. McDaniel, 529 U.S. 473, 485 (2000) (Kennedy, J.)

(stating that “[t]he Ashwander rule should inform the court’s discretion” to decide

the case on non-constitutional grounds); Dep’t of Com. v. U.S. House of

Representatives, 525 U.S. 316, 344 (1999) (O’Connor, J.) (“[W]e find it

inapposite. In an as-applied challenge, the claim generally is ripe for decision only

if, in fact, the statute in question applies.

5

unnecessary to reach the constitutional question presented.” (citing Ashwander,

297 U.S. at 347)); Jean v. Nelson, 472 U.S. 846, 854 (1985) (Rehnquist, J.) (citing

Ashwander to support avoiding the constitutional issue); Massachusetts v.

Westcott, 431 U.S. 322, 323 (1977) (per curiam) (“In accordance with our

longstanding principle of deciding constitutional questions only when

necessary, . . . we decline to decide the privileges and immunities question

presented in this case, and vacate the judgment and remand the case for further

consideration . . . .” (citing Ashwander, 297 U.S. at 347)). Three Supreme Court

cases on this topic are worth examining in more detail.

In Spector, 323 U.S. 101, the Court confronted a challenge to Connecticut’s

corporate tax statute. An out-of-state corporation sought an injunction in federal

court to bar enforcement of the statute against it. Id. at 102. The plaintiff argued

that the statute did not apply to the corporation but that, if it did, then that

application of the statute violated the Commerce and Due Process clauses of the

federal Constitution. Id. The district court held that the state statute did not apply

to the plaintiff. Id. The Second Circuit disagreed and reached the constitutional

issues. Id. at 102–03.

But the Supreme Court vacated and remanded so that Connecticut courts

could determine whether the statute applied to the plaintiff in the first place. Id. at

106. The Court explained its decision as one of avoidance:

6

If there is one doctrine more deeply rooted than any other in the

process of constitutional adjudication, it is that we ought not to pass on

questions of constitutionality . . . unless such adjudication is

unavoidable. And so, as questions of federal constitutional power have

become more and more intertwined with preliminary doubts about local

law, we have insisted that federal courts do not decide questions of

constitutionality on the basis of preliminary guesses regarding local

law.

Id. at 105 (collecting cases). Although Spector was decided more than 70 years

ago, it is still good law. See Matal v. Tam, 137 S. Ct. 1744, 1755 (2017) (noting

that the Court has frequently stressed that “we ought not to pass on questions of

constitutionality . . . unless such adjudication is unavoidable.” (quoting Spector,

323 U.S. at 105) (internal quotation marks omitted)); Dep’t of Com., 525 U.S. at

343 (citing Spector to support not reaching the constitutional question presented);

Kaluna, 192 F.3d at 1197 (same).

In the second case, Escambia County v. McMillan, 466 U.S. 48 (1984) (per

curiam), Black voters challenged a county’s at-large election system for

commissioners. Id. at 49. The district court ruled that the voting system violated

the Fourteenth and Fifteenth Amendments, as well as the Voting Rights Act. Id.

The Fifth Circuit affirmed the district court, but only on the Fourteenth

Amendment theory—it declined to reach the two other grounds for the ruling. Id.

at 50. The Supreme Court vacated the judgment of the Fifth Circuit because the

constitutional questions would be moot if the plaintiffs succeeded on their statutory

claim. See id. at 51 (“It is a well established principle governing the prudent

7

exercise of this Court’s jurisdiction that normally the Court will not decide a

constitutional question if there is some other ground upon which to dispose of the

case.”). The Court then remanded the question to the Fifth Circuit for further

briefing on the statutory question. Id. at 51–52.

Third, in United States v. Locke, 471 U.S. 84 (1985), a district court had

declared unconstitutional a statute that resulted in forfeiture of unpatented mining

claims if the holders of the claims did not meet annual filing requirements. Id. at

91. Reviewing the district court’s decision directly, the Court determined that the

district court had erred by ignoring nonconstitutional questions that could have

resolved the case. The Court laid out two possible ways to proceed:

When the nonconstitutional questions have not been passed on by the

lower court, we may vacate the decision below and remand with

instructions that those questions be decided, . . . or we may choose to

decide those questions ourselves without benefit of lower court analysis

. . . . The choice between these options depends on the extent to which

lower court factfinding and analysis of the nonconstitutional questions

will be necessary or useful to our disposition of those questions.

Id. at 92 n.9 (internal citations omitted). As described above, this case presents the

first situation, because fact-finding and analysis by the district court are necessary

to the disposition of the questions presented here.

The list of cases urging avoidance when we confront both a statutory

question and a constitutional question is long. See, e.g., Heald v. District of

Columbia, 259 U.S. 114, 123 (1922) (“It has been repeatedly held that one who

8

would strike down a state statute as violative of the federal Constitution must show

that he is within the class of persons with respect to whom the act is

unconstitutional and that the alleged unconstitutional feature injures him.”); Ala.

State Fed’n of Lab., Loc. Union No. 103 v. McAdory, 325 U.S. 450, 462 (1945)

(“All these considerations forbid our deciding here the constitutionality of a state

statute of doubtful construction in advance of its application and construction by

the state courts and without reference to some precise set of facts to which it is to

be applied.”); Parker v. Los Angeles County, 338 U.S. 327, 333 (1949) (“The best

teaching of this Court’s experience admonishes us not to entertain constitutional

questions in advance of the strictest necessity.”); Standard Oil Co. of California v.

Arizona, 738 F.2d 1021, 1023 (9th Cir. 1984) (“[W]e must, if at all possible,

resolve cases on statutory grounds before reaching constitutional questions.”); Fox

Television Stations, Inc v. Aereokiller, LLC, 851 F.3d 1002, 1013 (9th Cir. 2017)

(“We . . . adhere to the well established principle . . . [that] the Court will not

decide a constitutional question if there is some other ground upon which to

dispose of the case” (brackets and second ellipsis in original) (citation and internal

quotation marks omitted)). 3

3

The majority opinion’s reference to an analytical framework that some courts,

including ours, previously applied in Second Amendment cases misses the mark

entirely. See Maj. Op. at 45 (citing Duncan v. Bonta, 19 F.4th 1087 (9th Cir.

2021) (en banc), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022), and

(continued)

9

It is true that courts do not always choose to follow the path of constitutional

avoidance. See, e.g., Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6

F.4th 1247, 1256 n.12 (11th Cir. 2021) (declining to decide whether websites are

places of public accommodation under Title II of the Civil Rights Act, 42 U.S.C.

§ 2000a et seq., because plaintiff’s claim “fail[ed] regardless on First Amendment

grounds”). But those occasional choices do not counsel in favor of exercising our

discretion in that way here.

Indeed, the majority opinion demonstrates why, in this case, a departure

from our long tradition of judicial restraint is a particularly imprudent choice. The

majority opinion justifies its application of strict scrutiny to the OPAA by

assuming that the statute applies to Defendant. Maj. Op. at 32–33. It then states

that the law must be narrowly tailored to serve compelling state interests to survive

such scrutiny. Id. at 33. But “tailoring” is a meaningless concept if it is not tied to

the scope of the statute. And the state’s interests are inherently bound up in which

vacated and remanded, No. 19-55376, 2022 WL 4393577 (9th Cir. Sep. 23, 2022)).

In Duncan, plaintiffs brought a facial challenge to California’s ban on large-

capacity magazines. Id. at 1101. We “assum[ed] without deciding” that the first

step of a two-step constitutional inquiry was met, id. at 1103, which asked

“whether the challenged law affects conduct that the Second Amendment

protects,” id. at 1102. Assuming that one step within a multi-step constitutional

inquiry is met does not speak—at all—to the completely separate question whether

a court should reach a constitutional issue before deciding a statutory one. Even if

Duncan’s analysis could inform how to approach a facial challenge to the OPAA,

that is not what this case is.

10

individuals and organizations are actually regulated by the statute.

It is worth underscoring that resolving the statutory question first is not just

a theoretical exercise—it truly is not clear whether the OPAA applies to

Defendant. Under Oregon law, an organization is a public accommodation if it is a

commercial enterprise with membership policies that “are so unselective that the

organization can fairly be said to offer its services to the public.” Lahmann v.

Grand Aerie of Fraternal Ord. of Eagles (Lahmann I), 43 P.3d 1130, 1137 (Or. Ct.

App. 2002). The OPAA covers “services offered broadly, even with some

significant restrictions,” but the statute does not cover “services that are distinctly

private in nature and that are not offered even to a defined segment of the public.”

Abraham v. Corizon Health, Inc., 511 P.3d 1083, 1093 (Or. 2022). A critical

inquiry is whether the business offers the service with “the element of selectivity

necessary to qualify as distinctly private.” Id. at 1094.

A service may be a “public accommodation” within the meaning of the

statute even if it is offered to only a segment of the public. See id. at 1094

(holding that, by providing healthcare services to residents of a county jail, the

private contractor was offering those services to the public). Thus, one could

conclude (for example) that “parents of high school children” or “residents of

Jackson County” would be segments of the public, such that entities serving those

persons would be public accommodations. But a business cannot escape the reach

11

of the OPAA by asserting that it is serving a subset of the general public protected

by the OPAA: for example, “a restaurant cannot argue that it does not provide

services to the public because it hangs a ‘whites only’ sign in the window.” Id. at

1090. Under that reasoning, a business that serves only “women” (however

defined) would be providing services to the public but would be violating the

OPAA.4

Defendant has colorable arguments that it does not meet the statutory

requirements. As the majority opinion describes Defendant, it rigorously monitors

its contestants to determine their eligibility. Maj. Op. at 3–4. Defendant has

repeatedly rejected applicants for reasons that have nothing to do with an

applicant’s belonging to a group protected by the OPAA. See id. (describing

applicants who have been rejected for posing nude or otherwise not comporting

with Defendant’s “vision and message”). Those facts suggest that Defendant is

selective about who can compete. It is possible that, if Defendant is sufficiently

selective, the OPAA does not apply to it. See Vejo v. Portland Pub. Schs., 204 F.

Supp. 3d 1149, 1168 (D. Or. 2016) (concluding that the OPAA did not apply to

private college because of its selectivity), rev’d and remanded on other

grounds, 737 F. App’x 309 (9th Cir. 2018) (unpublished); Abukhalaf v. Morrison

4

The majority opinion never engages with the full scope of OPAA coverage, as

definitively interpreted by Oregon’s appellate courts in Lahmann I and Abraham.

12

Child & Fam. Servs., No. CV 08-345-HU, 2009 WL 4067274, at *7 (D. Or. Nov.

20, 2009) (concluding that the OPAA did not apply to a recruiter for foster parents

because the recruiter retained discretion in the selection of which applicants could

be foster parents); cf. Abraham, 511 P.3d at 1094 (holding that the OPAA covers

medical services provided by a county jail because it is not “selective in the way

that a club or other distinctly private organization is”).

The majority opinion’s examples—theater, cinema, and the Super Bowl’s

halftime show, Maj. Op. at 8—all are excellent demonstrations of the probable

limits of what organizations are covered by the statute. All three media include

both performers and an audience. But the OPAA likely would apply only to the

organization hosting the audience, not to the organization hiring the performers.

Choosing actors for a production of Hamilton, making a sequel to an 80s cinema

classic, and assembling a troupe of Beyonce’s backup dancers are intensely

selective processes that cannot be said to be open to the public as contemplated by

the OPAA. It is highly unlikely that the OPAA would apply to the selection of

performers for those roles. On the other hand, the OPAA likely would apply to the

venues that sell tickets to the audiences who watch those performances. This

paradigm raises the crucial question—is a contestant in one of Defendant’s

pageants more similar to the performers or to the audience? The answer is by no

means clear, and it should be determined by a fact-finder after sufficient discovery

13

and briefing.5

In sum, by assuming that the statute applies to Defendant—an assumption

that is not definitively supported by the extant record—the majority risks issuing

an unconstitutional advisory opinion and flouts a longstanding tradition of judicial

restraint in the federal courts. Applying our ordinary rule of constitutional

avoidance, I would vacate the judgment and remand this case to the district court to

determine whether the OPAA applies to Defendant before we address any

constitutional concerns regarding the application of the statute.

B. Principles Applied by the Oregon Courts Strongly Suggest, If Not

Require, That We Refrain from Deciding the Constitutional Issue

Now.

Oregon Supreme Court cases clearly demonstrate that the principle of

constitutional avoidance is equally well entrenched in Oregon law; interpretation

of statutes comes first. See, e.g., State ex rel. Dept. of Transp. v. Alderwoods

(Or.), Inc., 366 P.3d 316, 330 (Or. 2015) (en banc) (holding that “generally we will

not decide constitutional issues when there is an adequate statutory basis for

decision”); Vasquez v. Double Press Mfg., Inc., 437 P.3d 1107, 1110 (Or. 2019)

(stating the principle that the court generally avoids reaching constitutional

5

The majority opinion is concerned that, “[h]ad some anti-discrimination statute

been applied to Hamilton forcibly to include white actors, the show simply would

not be able to express the message it desired.” Maj. Op. at 12 (emphasis added).

But Plaintiff did not sue under a hypothetical statute; she sued under the OPAA.

Also, as noted in text, the OPAA likely would not apply to the casting of Hamilton.

14

questions unless it is necessary to decide them). As the Oregon Supreme Court

summarized in State v. Barrett, 255 P.3d 472 (Or. 2011):

[O]rdinarily, this court’s salutary sense of judicial restraint would lead

us to avoid reaching constitutional questions in advance of the necessity

of deciding them. As this court has observed: “The need to face a

constitutional issue arises, if at all, only after the court determines what

ordinary laws authorize, require or forbid.” Burt v. Blumenauer, 299

Or. 55, 70, 699 P.2d 168 (1985) (citation omitted).

Applying the logic of that proposition, this court has stated that,

“if statutory sources of law provide a complete answer to

the legal question that a case presents, we ordinarily

decide the case on that basis, rather than turning to

constitutional provisions.”

Rico-Villalobos v. Giusto, 339 Or. 197, 205, 118 P.3d 246 (2006). This

court follows that decisional principle even if the parties attempt to

force the court to decide a constitutional question by confining their

arguments to matters of constitutional law, rather than addressing

arguably dispositive aspects of subconstitutional law.

“This court decides cases on subconstitutional grounds

when it can, even if the parties present only constitutional

arguments for the court’s consideration. See, e.g., State v.

Conger, 319 Or. 484, 490, 878 P.2d 1089 (1994); Zochert

v. Fanning, 310 Or 514, 520, 800 P.2d 773 (1990) (so

stating).”

Li v. State of Oregon, 338 Or. 376, 391, 110 P.3d 91 (2005).

Id. at 477 (emphasis added); see also State ex rel. Engweiler v. Felton, 260 P.3d

448, 463 (Or. 2011) (recognizing that the court’s practice in dealing with legal

15

challenges to administrative rules is to “consider statutory questions before turning

to constitutional issues”).

Oregon courts have recognized one narrow exception to the general rule that

statutory questions come first.6 In Barrett, the Oregon Supreme Court deviated

from its standard practice of considering statutory questions first because the

Oregon legislature had “created a clear and expedited procedural path for a victim

[of stalking] to assert claims for the violation of her constitutional rights.” 255

P.3d at 477. The court concluded that, given the Oregon legislature’s intent, it was

appropriate to address the constitutional claims first where the s

This text is long and has been trimmed here. Open the source document for the complete record.