Conservatives expect everyone who lives in America to love America, and they can’t seem to understand why many of us don’t. Meanwhile, justices who serve in a largely white, conservative and heterosexual U.S. Supreme Court have no problem turning a discussion on discrimination into a Tone Def Jam comedy routine.
I’m looking at you, Justice Samuel Alito.
On Monday, the highest court in the country met to discuss whether a graphic designer can refuse to do business with same-sex couples on the basis of religious objection. It’s a conversation we’ve had numerous times in this country, and, in my not-so-humble opinion, it’s always boiled down to one thing—bigots needing an excuse to be bigots. Why would anyone love a country that trivializes their right to equality and social dignity?
Anyway, back to Alito.
According to CNN, it all started when Justice Ketanji Jackson presented a hypothetical scenario to combat an argument made by a lawyer for Lorie Smith, a graphic designer who wants to expand her business to celebrate marriages but wants to exclude same-sex marriages because they go against her religion. Smith is seeking an exemption from a Colorado state law that bars discrimination in public accommodations based on sexual orientation.
“Can I ask you a hypothetical that just sort of helps me flesh” this out, Jackson asked a lawyer for the designer.
Jackson wanted to know about a photography business in a hypothetical shopping mall during the holiday season that offers a product called “Scenes with Santa.” She said the photographer wants to express his own view of nostalgia about Christmases past by reproducing 1940s and 1950s Santa scenes in sepia tone.
“Their policy is that only White children can be photographed with Santa,” Jackson said and noted that according to her hypothetical, the photographer is willing to refer families of color to the Santa at “the other end of the mall” who will take anybody, and they will photograph families of color.
Jackson asked Kristen Waggoner, Smith’s lawyer, “why isn’t your argument that they should be able to do that?”
Waggoner finally said that there are “difficult lines to draw” and said that the Santa hypothetical might be an “edge case.”
That drew incredulity on the part of liberal Justice Elena Kagan.
“It may be an ‘edge case’ meaning it could fall on either side, you’re not sure?” she asked.
So, while Smit’s lawyer didn’t appear to be prepared for Jackson’s questioning, Alito decided this was the appropriate moment to be flippant about basic human dignity and, once again, remind us that conservatives don’t really have an ear for comedy.
“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, an advocate for the state law.
“No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws,” Olson responded.
“And, presumably, that would be the same Ku Klux Klan outfit regardless of whether the child was Black or white or any other characteristic?” asked Justice Elena Kagan.
Alito interjected to say, “you do see a lot of Black children in Ku Klux Klan outfits, right? All the time. All the time.”
Some people in the court started laughing. They probably weren’t Black people. They probably weren’t LGBTQ people. They probably weren’t people who have experienced discrimination before in a country they’re expected to love.
Obviously, a lot of people refused to let this “joke” slide.
Later during the discussion, Alito entertained another hypothetical involving Jewish people and dating services.
“An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile,” Alito said. “It’s a dating service, I gather, for Jewish people.”
“It is,” Kagan, who is Jewish, responded.
“All right. Maybe Justice Kagan will also be familiar with the next website I’m going to mention. Next, a Jewish person asks a Jewish photographer to take a photograph for his Ashleymadison.com dating profile,” Alito said. Apparently, Ashleymadison.com is a dating site that helps people have affairs.
Once again, people in the room laughed. Probably not Jewish people.
“I’m not suggesting that — she knows a lot of things, I’m not suggesting that. OK — does he have to do it?” Alito added.
“It depends,” Olson replied. “What Colorado looks to is what services the photographer makes available to the public, and if the photographer makes that service available to others, taking pictures for use on websites, then probably yes, but it depends.”
Look, people just want to be able to patronize establishments without having to worry about being turned away because of their race, gender identity or sexual orientation. It’s that simple. And it’s not a thing to be joked about.
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