Miss California Could Sue for Discrimination, Legal Analyst Says

Miss California Carrie Prejean (AP)

Miss California Carrie Prejean, blasted by a Miss USA contest judge because she opposes gay marriage, may have grounds for a discrimination lawsuit herself — against the Miss USA pageant, a legal analyst says.

"If she really feels some tremendous stress as a result of losing — and I'm certain she's probably devastated from what happened to her — she can articulate a viable claim for monetary compensation for psychic injury," said FOX News legal analyst Mercedes Colwin.

Prejean fielded a question during Sunday night's pageant from celebrity blogger Perez Hilton about whether every state should legalize same-sex marriage. Prejean replied that she is opposed to gay marriage, and her answer may have cost her the crown. She finished second to Miss North Carolina Kristen Dalton.

"She lost it because of that question," Hilton said Monday. "She was definitely the front-runner before that."

Hilton, who is gay, said he gave Prejean a zero for her answer, and that may have made the difference in the outcome.

Prejean, who attends San Diego Christian College, said she saw the question as a test of her faith — a religious trial that could have her finishing in the money, if she decides to sue.

Any contestant in the pageant would be upset over losing, but it's the special circumstances surrounding Prejean's close call that would give her grounds to sue, Colwin said.

"It's her religious beliefs which prompted her to say 'I don't believe in same-sex marriages.' So she was espousing her beliefs," and could sue for a violation of Title VII, which forbids discrimination on the basis of religion.

Prejean couldn't sue for the crown itself because the pageant is a straightforward contest and she has no proprietary "right" to win, said Colwin. But if she could prove how devastated she was by the loss, she could still stand to gain.

Colwin said a "garden-variety psychic injury case" would probably net Prejean around $50,000-$100,000 if she had corroboration from a medical expert. Without that testimony, Colwin said, she would probably receive under $25,000 if successful.

But other legal experts say the suit would be dismissed as frivolous because there was no government involvement in the contest and no violation of rights in that private enterprise.

"The First Amendment insulates interference with religion from the government — it does not insulate religious interference with anyone else," said Judge Andrew Napolitano, senior legal analyst for FOX News. "I don't think the litigation would get to first base."

If anything, Napolitano added, Prejean "has a cause of action against 'The Donald' — against the people who run this thing" for choosing biased judges.

A spokeswoman for the Trump Organization, which co-owns the Miss USA pageant, directed questions to a spokeswoman for the Miss USA pageant, who declined to comment

Though Prejean said she's happy with the result of the contest, she agreed with Hilton on one thing — she was sure the tough Q&A is what did her in.

"Out of all the topics I studied up on, I dreaded that one: I prayed I would not be asked about gay marriage. If I had any other question, I know I would have won," she told FOXNews.com.

The question from Hilton was especially pointed as it came just five months after the passage of Proposition 8, which banned gay marriage in the state of California. Prejean, 21, may not be the first religious Californian to suffer because of her position on the issue.

The director of the largest non-profit theater in California resigned in November after it was revealed he had donated $1,000 to help pass Proposition 8. Gay activists called for a boycott of the California Musical Theater in Sacramento until its director, Scott Eckern — a member of the Mormon church — stepped down after 25 years of service.

Much of the furor over the passing of Proposition 8 was bound up in religion. Mormons were major fundraisers for the Yes on 8 campaign, and they faced major backlash for their support. Activists protested outside Mormon temples around the country after the proposition passed, and some temples were defaced.

Sunday's theatrics were just the latest controversy for Miss USA, after one of last year's winners sued the state pageant for racial discrimination.

A Hispanic woman who won the Miss California USA contest filed suit last April because her crown was yanked just three days after she was proclaimed the winner. The director of the pageant said there was an accounting error, but Christina Silva alleged racial bias — and sued for $500,000 before withdrawing her case this year.