On Monday, the Supreme Court heard arguments in a case about a web designer who wanted to be legally allowed to not work on same-sex weddings. Her reasoning? It goes against her values as a conservative evangelical Christian. And somehow during the session, Justice Alito couldn’t help from making a joke about the Ku Klux Klan.
Lorie Smith, who resides in Colorado, said she opposes same-sex marriage because of her religion and wants to be legally exempt from a state law that bans discrimination on the basis of sexual orientation in public accommodations. In 2016, Smith sued the state and said she has a free speech right under the First Amendment.
Justice Ketanji Brown Jackson then introduced a hypothetical to illuminate Smith’s bigotry. She described a fictional photography business where “only white children can be photographed with Santa.” Jackson continued with her hypothetical, explaining that the photographer will refer families of color to a different Santa located at “the other end of the mall.”
That Santa will photograph families of color, she explained before asking Kristen Waggoner, Smith’s lawyer, “why isn’t your argument that they should be able to do that?”
Waggoner admitted there are “difficult lines to draw” and that example might be an “edge case.” Alito, who wrote the ruling overturning Roe v. Wade earlier this year, somehow brought the KKK into Brown’s hypothetical which only revealed his thinly-veiled racism.
“So if there’s a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that Black Santa has to do that?” Alito asked Colorado solicitor general Eric Olson.
“No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws,” Olson retorted. Justice Elena Kagan, who is liberal, asked: “And, presumably, that would be the same Ku Klux Klan outfit regardless of whether the child was Black or white or any other characteristic?”
Alito quipped: “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time. All the time.” This drew laughter from the court, but there’s nothing funny about bringing up a terrorist organization responsible for violence again Black people—which frequently led to their death.
This inane comparison only proves one thing: Alito has no business serving on the Supreme Court.