Article III, Section 2 of the United States Constitution bestows upon the judiciary the power to examine and make decisions on cases before it. (1) Nonetheless, this authority is not absolute, but rather is constrained by numerous doctrines that restrict the scope of judicial review. (2) For example, the constitutional avoidance doctrine, which asserts that when a law can be interpreted in two ways, one leading to significant constitutional issues, and the other avoiding such issues, the court should opt for the latter interpretation. (3) Although nearly a century old, the importance of the avoidance doctrine is equally as germane in recent Supreme Court cases. (4) Nevertheless, in 2022, the Ninth Circuit Court of Appeals departed from this doctrine in Green v. Miss USA, LLC, (5) holding that Miss USA's prohibition of transgender women from competing was protected by the First Amendment's compelled speech doctrine. (6) In dealing with the as-applied challenge before determining the statue's applicability, the Ninth Circuit deviated from its intended responsibilities and encroached into the realm of legislative functions, underscoring the delicate balance between judicial interpretation and separation of powers. (7)
Anita Green publicly identified as a transgender woman at the age of 17. (8) She subsequently underwent hormone therapy and gender reassignment surgery to facilitate her transition from male to female. (9) In the past, her gender identity did not prevent her from competing in beauty pageants like Miss Montana USA and Miss Earth. (10) Nevertheless, in 2018, the Miss United States of America Pageant ("Pageant") barred her from competing in its event based on its "natural born woman" registration requirement. (11) Despite being aware of this restriction, Green applied to compete anyway, eventually leading to the Pageant's rejection of her application. (12)
In response to this denial, Green filed a lawsuit against the Pageant, alleging it violated the Oregon Public Accommodations Act ("OPAA") by discriminating on the basis of her gender identity. (13) The Pageant argued for dismissal, claiming an as-applied challenge that the OPAA violated its First Amendment right against compelled expression. (14) After converting its motion to dismiss to a motion for summary judgment, the district court granted summary judgment, holding the OPAA violated the Pageant's First Amendment expressive association right. (15) In response, Green appealed to the Ninth Circuit and the Pageant renewed its as-applied challenge, with Green arguing violation of her First Amendment right. (16)
Marbury v. Madison first established federal courts' ability to rule on issues of law before them. (17) While court decisions can significantly impact public policy, constitutional constraints prevent the judiciary from becoming overly involved in the legislative process to maintain proper separation of powers. (18) Given the nature of judicial review, various constitutional limitations, known as "justiciability doctrines," were developed to delineate the appropriate boundaries of judicial authority. (19)
During the early (19) th century, certain Supreme Court cases alluded to the "avoidance canon," underscoring the notion that courts should presume the constitutionality of congressional actions to forestall judicial overreach and preserve the separation of powers. (20) Initially, the avoidance doctrine--although sparingly utilized--favored an interpretation of statutes that could withstand constitutional scrutiny over interpretations that might be deemed unconstitutional. (21) During the Lochner era, as the legal system, federal statutes, and society developed, the Supreme Court established a more active role in constitutional interpretation and subverted the rising application of this justiciability doctrine. (22) Reacting to the overreach of the Lochner era, judges in opposition emphasized the significance of constitutional limitations and judicial restraint--ultimately leading to an amplified development and utilization of the avoidance doctrine. (23) Initially, the avoidance canon preferred statutory readings that met constitutional scrutiny over interpretations that would not traditionally pass muster. (24) However, this aspect of the doctrine eventually shifted through case law to a modern avoidance canon, aimed instead at avoiding the necessity of rendering advisory opinions. (25)
Following this shift, courts have frequently invoked the modern avoidance doctrine as a guiding principle in contemporary constitutional law. (26) Despite the Supreme Court's commitment to the avoidance doctrine, it is critical to acknowledge how lower courts have applied this principle on questions of state law. (27) Notably, there is a trend in the Ninth Circuit and Oregon state courts of adhering to the avoidance doctrine, as evidenced by precedent in previous case law. (28) This commitment is specifically showcased in Oregon's cases addressing questions related to the OPAA in the context of as-applied challenges. (29)
Despite the deeply ingrained avoidance doctrine, several courts in the late 1990s and early 2000s systematically deviated from this principle, leading to unnecessary constitutional rulings. (30) This departure appeared to be indirectly connected to First Amendment challenges, with many judges expressing concerns that adhering to the avoidance doctrine could stifle free speech. (31) In these instances, a divisive question arises regarding whether courts should prioritize justiciability doctrines or if the protection of speech should take precedence over constitutional canons of construction. (32) This division amongst the courts not only stems from the practical application of constitutional avoidance, but also from how these arguments are presented to the courts--whether through an as-applied or facial challenge. (33)
Near the end of the Rehnquist Court, however, there was a shift to remedy the rise of unnecessary constitutional rulings with the disapproval of facial challenges. (34) Broadly speaking, facial challenges result in striking down an entire statute as unconstitutional. (35) As-applied challenges, however, work to limit the judiciary's overreach into legislative duties by declaring the statute unconstitutional only to the particular facts at hand. (36) Over time, the resistance to facial challenges became deeply ingrained with the Roberts Court's increased preference towards as-applied constitutional challenges. (37) Overall, this preference towards as-applied challenges aims to afford courts with the proper authority to adjudicate constitutional matters without overreaching their grant of authority. (38) Nevertheless, uniformity in the application of as-applied challenges remains lacking, often leaving the interpretation of constitutional issues to the discretion of the court. (39)
In Green v. Miss USA, LLC, (40) the Ninth Circuit explored whether district and appellate courts should address constitutional questions before tackling statutory matters, focusing on the potential pitfalls of adopting a strict rule. (41) Focusing on the issue of the as-applied challenge of First Amendment violations, the court first claimed that the Pageant was afforded First Amendment protections based on its expression of its view of "womanhood." (42) This protection, the court opined, extends to the selection process as a means to portray this expressive message. (43) The court proceeded to determine whether, based on this First Amendment protection, the OPAA passed strict scrutiny based on the compulsion of speech. (44) Under the strict scrutiny analysis, the Ninth Circuit argued there was no compelling interest due to the "high level of generality" offered as a rationale behind the OPAA (45)
Shifting from the First Amendment analysis, the Ninth Circuit narrowed in on the avoidance doctrine--centering on the clash between the two well-established constitutional protection principles. (46) To resolve this conflict concerning the First Amendment, the court cited other circuits' nonapplication of the constitutional avoidance doctrine, specifically referencing Rogers v. Grimaldi. (47) By applying the principles of this case to the present issue, the Ninth Circuit opined that the Rogers test prioritized First Amendment concerns over statutory interpretation. (48) The court justified this decision by suggesting that prioritizing statutory questions could stifle freedom of speech and expression due to concerns of prolonged litigation. (49) Moreover, even when a First Amendment issue is an as-applied challenge, or merely hypothetical, the court posited the modern overbreadth doctrine should apply. (50) This doctrine requires courts to "assume and evaluate purely hypothetical fact patterns to vindicate First Amendment interests of parties not even before the court." (51) The court justified the First Amendment preference based on Oregon courts exhibiting "flexibility in resolving cases." (52) The flexibility allowed the Oregon courts to review constitutional claims without having to address statutory claims, thereby not necessitating strict adherence to constitutional avoidance. (53)
Judicial restraint and the constitutional avoidance doctrine are crucial for maintaining public trust in the judiciary's ability to impartially adjudicate matters. (54) Additionally, the separation of powers is fundamental for effective governance, preventing any single branch from exceeding its authority or implicating autocratic reign. (55) It is vital to prevent courts from resolving questions on hypothetical issues to ensure confidence in the justice system and the United States government. (56) One preventive measure is to stop courts from granting advisory opinions. (57) Courts should focus on interpreting statutes rather than empowering judges to subvert statutory interpretation. (58) Therefore, the Ninth Circuit exceeded its authority by assuming a legislative...
