She asked the attorney representing the right-wing Christian website designer who does not want to have to provide her product to same-sex couples, if under her legal theory the hypothetical photographer would have to create photos of a white Santa with Black children.
Kristen Waggoner, the Alliance Defending Freedom‘s attorney arguing in favor of anti-LGBTQ discrimination, was forced to admit that the photographer would be able to say they would not take photos of Black children with a white Santa.
Later, Justice Samuel Alito, one of the Court’s most far-right jurists, decided to use Justice Jackson’s hypothetical analogy to make a point, and he did so by mockingly joking about Black children wearing KKK costumes.
“Justice Jackson’s example of that, the Santa in the mall who doesn’t want his picture taken with Black children,” Justice Alito began, getting the basics of the analogy incorrect.
“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 is dressed up in a Ku Klux Klan outfit, now does that Black Santa have to do that?”
Colorado Solicitor General Eric Olson replied, “No, because Klu Klux Klan outfits are not protected characteristics under public accommodation laws.”
“And presumably,” Justice Sonia Sotomayor interjected, “that would be the same Ku Klux Klan outfit regardless whether if the child was Black or white or any other characteristic.”
That’s when Alito decided to make a “joke,” while thousands of Americans were listening to the Court’s live proceedings.
“You do see a lot of Black children in Ku Klux Klan outfits all the time,” he said, presumably sarcastically.
He then laughed, and some viewers in the gallery joined with him.
Many on social media were outraged and offended.
“He is so inappropriate today. And offensive,” said Sherrilyn Ifill, the former President and Director-Counsel of the NAACP Legal Defense Fund (LDF). “The Black kids in KuKluxKlan outfits? Not funny. Is this the highest Court of the most powerful country in the world? Good grief.”
Minutes later, NYU School of Law Professor of Law Melissa Murray weighed in, saying, “I’m going to need Justice Alito to stop joking about seeing ‘Black children in Ku Klux Klan costumes.'”
“Seriously, what am I listening to?” she asked, to which Ifill replied, “Just awful.”
“The joke about Black kids in KuKluxKlan outfits?” Ifill also lamented. “No Justice Alito, these ‘jokes’ are so inappropriate, no matter how many in the courtroom chuckle mindlessly.”
Columbia University Professor of Law Katherine Franke tweeted, “Justice Alito is resorting to KKK jokes. Ha ha ha. As if what’s at stake here is funny, and isn’t taking place in a context in which LGBTQ people feel like we have a target on our backs. And, ahem – Klan jokes aren’t funny under any context.”
The Rewire News Group tweeted, in all caps, “I knew Alito wouldn’t be able to resist bringing up the Ku Klux Klan,” and then: “What the hell, Sam.”