For a long time, the heading of this post might suggest that the Ninth Circuit just did something really crazy—except that the crazy had become so routine that it was no longer a surprise. But this time the welcome surprise is that the Ninth Circuit didn’t go to extraordinary lengths in a case that involves a losing plaintiff who identifies as “an openly transgender female.”
Specifically, the Ninth Circuit last month denied rehearing en banc of plaintiff Anita Green’s challenge to the Miss United States of America pageant’s requirement that competitors in its beauty pageants be “natural born female[s]”—i.e., actual women.
Back in November 2022, a divided panel had ruled that the First Amendment’s protection against compelled speech meant that the pageant was entitled to summary judgment, as Green was “seek[ing] 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.” Judge Lawrence VanDyke wrote the majority opinion, which Judge Carlos Bea joined.
Judge Susan Graber in dissent complained that the majority opinion “marks a radical departure from the well-settled principle that we should consider non-constitutional grounds for decision [i.e., whether the Oregon public-accommodations act applies to the pageant] before reaching constitutional issues.” She argued, further, that if Oregon’s public-accommodations act applies, the state’s “compelling interest in preventing discrimination on the part of commercial entities that offer their services to the public” would defeat any First Amendment claim.
Ninth Circuit judges in active service who were appointed by Democratic presidents outnumber their colleagues who were appointed by Republican presidents by a margin of 16 to 13. So when a judge requested that this case be taken en banc, the smart money would have been on a grant. Two judges—one Republican appointee, one Democratic appointee—ended up not taking part in the en banc vote, so that means that no more than 13 of the 15 Democratic appointees who did take part voted to go en banc. (In other words, with 27 judges taking part, there were at most 13 judges who supported the en banc call.)