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Although the Miss USA pageant may have dodged one lawsuit when temporary-winner of the 2007 Miss California USA contest withdrew her claim of racial discrimination after her crown was stripped because of an “accounting error,” this year’s nationwide pageant has erupted in more controversy. Runner-up in the competition, Carrie Prejean (Miss California), who many picked to be crowned the next Miss USA, seemingly lost her chance at glory when she faced a question from celebrity, and openly gay, judge Perez Hilton regarding the legalization of same-sex marriage. When asked whether she believed that other states should follow Vermont and three others in legalizing same-sex marriage, Prejean responded:
I think it’s great that Americans are able to choose one or the other. We live in a land that you can choose same-sex marriage or opposite marriage and, you know what, in my country, in my family I think that I believe that a marriage should be between a man and a woman. No offense to anyone out there but that’s how I was raised and that’s how I think it should be–between a man and a woman.
A visibly disturbed Hilton berated her on a video blog after the contest (before issuing an apology, and then retracting it) and agrees with Prejean that his score of zero to his own question likely cost her the crown. Hilton has said that he “was not upset or frustrated with her disagreeing with me about gay marriage. I was just upset and frustrated with how she answered the question.” Apparently, the proper response was that it was a question of states’ rights because that is how our forefathers designed our government. (Some would say that she hinted at that with her comment on Americans being able to choose, which would seem satisfactory considering most pageant contestants have yet to take Con Law I.)
In an interesting twist, however, Prejean may have a legal remedy for her treatment in the contest. According to some, she might allege that the pageant discriminated against her because of her religious beliefs. Prejean, a Conservative Christian, has said that what she stated on the show was “biblically correct.” Recently, the battle between freedom of religion and the right to be free from discrimination has led to many small victories for gay rights advocates. But typically when these cases arise, a faith group is preventing equal treatment to homosexuals and arguing for a right to discriminate. What is notably different here is that Prejean did not engage in discrimination–she claims that she was victimized for her views alone.
As one analyst suggests, she may be able to show that she was discriminated against in violation of Title VII of the Civil Rights Act of 1964, and has consequently suffered psychic or emotional injury. Because Title VII prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, in order to succeed on this claim, Prejean would have to show that the pageant qualifies as an “employer” and that she was an “employee,” or was at least seeking employment. It might be a stretch to say that her participation in the contest was a job interview, but considering that the winner spends the next year as the spokesperson for the organization, such an idea is not unfathomable.
Other experts believe that a better recourse would be a lawsuit against Miss USA’s owner for choosing biased judges. What would have to be shown under this route is unclear, but a good start would be a glance at the language of the contract between the contest and its judges. While there is certainly some subjectivity that goes into scoring the contestants, one must question the professionalism and potential breach of contract of a judge who poses a divisive question, receives an unsatisfactory answer, and then distributes a score of zero before calling the contestant names in the media.
It is even conceivable that Prejean could bring a personal injury action against Hilton himself for something along the lines of intentional infliction of emotional distress. After all, Hilton said that it was very likely his score that kept her from the crown. Considering also that the two ideologically-opposed parties both hail from California, which recently passed Proposition 8, banning same-sex marriage from taking place within the state, the opportunity to draw attention to this on a national forum would not be unattractive. As Shanna Moakler, former Miss USA and currently the head of the Miss California competition, said during the aftermath, “I have blogged and petitioned for gay rights in the past and if anything positive can come out of this, it’s that it has people talking and we need to have people talking and we need MANY conversations on this topic to take place, especially in the state of California and with Prop 8.” Although this controversy is unlikely to result in more than another Youtube sensation on American beauty pageants, it will certainly be effective in keeping the same-sex marriage debate alive and well.
– Andrew Cunningham
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