Justice Samuel Alito joked about Black Santa, children in Klan robes and dating websites as the Supreme Court heard arguments Monday in a case weighing a web designer's bid to avoid working on same-sex weddings because she is a conservative evangelical Christian.
Web designer Lorie Smith of Colorado opposes same-sex marriage on religious grounds and is seeking an exemption from a state law that outlaws discrimination on the basis of sexual orientation in public accommodations.
Smith sued the state in 2016, arguing that she has a free speech right under the Constitution’s First Amendment to reject requests by same-sex couples because it conflicts with her own views.
During arguments Monday, which included a series of tough hypothetical questions directed at both sides, Alito asked whether a Black Santa at the mall is obligated to take a picture with a child dressed up in a Ku Klux Klan outfit even if he doesn’t want to.
Eric Olson, the Colorado solicitor general, said that the Black Santa wouldn’t have to follow through with the request since KKK outfits are not protected characteristics under accommodation laws.
Justice Elena Kagan asked whether the same applies regardless of whether the child is 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,” drawing scattered laughter.
In another notable moment, Alito brought up a scenario where an unmarried Jewish person asks a Jewish photographer to take a picture for his account on JDate, describing the website as "a dating service, I gather, for Jewish people."
Kagan, who is Jewish, jumped in to confirm that Alito was correct, which drew laughter from those in attendance.
Alito then joked that Kagan may also be familiar with the next website he mentioned.
“Next a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com,” Alito said, referring to an online dating service geared toward people seeking extramarital relationships, which also drew some laughter from the audience.
“I’m not suggesting that — she knows a lot of things, I’m not suggesting that. OK — does he have to do it?” Alito continued.
Conservative justices on the high court appeared sympathetic toward the web designer’s bid as they heard arguments for more than two hours Monday. However, it is unclear how the high court, which has a 6-3 conservative majority, will rule.
