A panel on the United States Court of Appeals for the Ninth Circuit seemed to be channeling the lyrics of the musical Hamilton in noting that “Everything is legal in New Jersey.” The panel ruled against  a transgender woman who brought a discrimination claim against a beauty pageant that allowed only “natural-born females” to compete. In a prior 2016 column, I discussed the racially discriminatory consideration of only “non-Whites” for the cast of the much-celebrated production. The majority opinion written by Judge Lawrence VanDyke noted the policy in upholding a policy that excluded trans women from the Miss United States of America pageant in Oregon.

In the 2016 column, I asked “if racial casting is permitted for plays, can other businesses claim that same right to discriminate as necessary to maintain an image or tradition?” That issue came up in the Oregon case of Anita Green.

Green has previously competed in beauty pageants and applied to enter the Miss United States of America pageant in Oregon, but was rejected as not qualifying as a “natural born female.” She filed a discrimination lawsuit in federal court under the Oregon Public Accommodations Act’s (“OPAA”) prohibition against discrimination on the basis of gender identity. Green appealed after the district court ruled against Green on the basis that the pageant’s First Amendment right to free expression and free association trumped the OPAA.

In a 58-page opinion, Judge VanDyke wrote that such limitations are an exercise of free speech (he also wrote a concurrence saying that it is also protected under the right to association). It was his lengthy discussion of Hamilton that caught the eye of many of us:

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 Hamilton 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 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-castpeople-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/nothe-hamilton-casting-call-for-non-white-actors-is-not-reverseracism_n_56fd2c83e4b0daf53aeed9b9.

Saying that the casting rule was “integral” to the vision of the creators, VanDyke noted 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.”

He was joined by U.S. Circuit Judge Carlos T. Bea and the third judge, Susan P. Graber, dissented and said that the constitutional ruling was unnecessary under the doctrine of “constitutional avoidance.” Garber insisted that the court should have based its decision on the question of whether OPAA applied to Green’s claim. She also referenced Hamilton:

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. 

Here is the opinion: Green v. Miss United States of America