When the Supreme Court met for more than two hours Monday to discuss whether graphic designers could refuse to do business with same-sex couples, the justices somehow strayed into dueling assumptions about black-and-white Santas and dating sites.
Assumptions are nothing new in the High Court, as justices look into how the cases before the court affect different challenges going forward. But Monday’s hypothetical was extraordinarily embarrassing, referring to children visiting Santa in Ku Klux Klan costumes.
It all started when Judge Ketanji Jackson expressed some caution about the scope of the arguments put forward by graphic designer Lorie Smith, who wanted to expand her business to celebrate marriage but did not want to work with same-sex couples to same-sex marriage due to religious objections.
“Can I ask you a hypothesis that will help me flesh out myself?” Jackson asked the designer’s lawyer.
Jackson wanted to know about a photography company during the holiday season in a hypothetical mall that offered a product called “Scenes with Santa.” She said the photographer wanted to express his own nostalgic take on past Christmases by recreating Santa scenes from the 1940s and 50s in sepia tones.
“Their policy is that only white children can take photos with Santa,” Jackson said, noting that, based on her assumption, photographers willing to introduce families of color to Santa “at the other end of the mall” would be photographing people of color .
Jackson asked Smith’s attorney, Kristen Waggoner, “Why isn’t your argument that they should be able to do that?”
Wagner concluded by saying there was a “difficult line to draw” and that the Santa hypothesis could be a “fringe case”.
That drew skepticism from liberal Justice Elena Kagan.
“It could be an ‘edge case,’ meaning it could fall on either side, aren’t you sure?” she asked.
Jackson later returned her query and expanded it. She said her hypothetical photographer was doing something similar to the movie “It’s a Wonderful Life” and wanted it to be “real” so that only white children could be customers.
Wagner suggests that in the case at hand, “the message wins,” but never really explains what she means.
Artist explains why she doesn’t think she should be working with same-sex couples
When a Colorado attorney came forward to defend the state’s anti-discrimination law, Justice Samuel Alito chimed in.
He wondered if Black Santa at the other end of the mall didn’t want him to pose with a kid in a Ku Klux Klan costume?
Colorado Attorney General Eric Olson responded that there is no law protecting the right to wear KKK clothing.
That prompted Kagan to chime in, noting that objections would be based on clothing, not whether it was worn by black or white children.
Alito then makes an extremely embarrassing remark that may have been a misguided joke. “You do see a lot of black kids wearing Ku Klux Klan, right? All the time.”
At another point in the argument, Alito puts forward a series of hypotheses and again engages with his seatmate Kagan as he looks for how the case at hand affects other cases.
He was referring to an “friend of the court” brief in support of Smith filed by attorney Josh Blackman on behalf of the Jewish Religious Freedom Union. The purpose of this letter is to discuss problematic situations for Jewish artisans who object to talking about certain topics. A series of hypotheses are included to show instances where the Jewish artist will be forced to sell his conscience.
“An unmarried Jew asked a Jewish photographer to take pictures for his JDate dating profile,” Alito began, referring to a hypothesis in the briefing.
He stopped. “As far as I know, it’s a dating service for Jews,” Alito said.
Kagan, who is Jewish, chimed in with a laugh: “Yes.”
Alito awkwardly decided to move forward with another hypothesis from Blackman’s letter.
“Okay. Maybe Justice Kagan will also be familiar with the next site I’m going to mention,” he said. “A Jewish man asks a Jewish photographer to take pictures for his Ashleymadison.com dating profile.”
The audience laughed because Ashleymadison.com appeared to be referring to an online dating service and social networking service marketed to people who were married or in a relationship.
It was another awkward moment, with Alito adding: “I’m not suggesting – she knows a lot of things. I’m not suggesting – well… he has to?”