Justice Alito Tastelessly Jokes About Black Kids in Klan Robes, Extramarital Dating Website During Debate

Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021
Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021

Erin Schaff-Pool/Getty Associate Justice Samuel Alito

Conservative Supreme Court Justice Samuel Alito turned heads Monday for comments he made while debating a case on LGBTQ+ discrimination.

During oral arguments in 303 Creative LLC v. Elenis, a case surrounding a Colorado graphic designer's charge to deny same-sex couples her services, the Supreme Court justices began running through hypotheticals of how their ruling could impact other potential examples of discrimination.

Liberal Justice Ketanji Brown Jackson raised the question of whether it would be acceptable if, say, a white mall Santa did not want to take pictures with Black children. Justice Alito jumped in and suggested that there are appropriate moments for refusing services, like if a Black Santa refused to take photos with a child in a Ku Klux Klan outfit.

The difference, as Colorado Solicitor General Eric Olson told Alito, is that KKK outfits "are not protected characteristics," whereas someone's identity is.

Justice Elena Kagan, another left-leaning member of the court, tacked onto Olson's point by positing that if a Santa turns away someone in a Klan robe, it would not matter their identity because it's the offensive outfit that poses the problem.

Alito interjected, "You do see a lot of Black children in Ku Klux Klan outfits, right? All the time. All the time," prompting some laughter in the courtroom before Kagan reined in the conversation.

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The bizarre exchange quickly got people talking, including former president and director-counsel of the NAACP's Legal Defense Fund, Sherrilyn Ifill, who tweeted, "This argument ... this is really upsetting. The joke about Black kids in KuKluxKlan outfits? No Justice Alito, these 'jokes' are so inappropriate, no matter how many in the courtroom chuckle mindlessly."

Bronx-based Rep. Ritchie Torres, who is Black, wrote, "According to SCOTUS Justice Alito, prohibiting a Christian from discriminating against LGBTQ people is like forcing 'black Santa' to appear in a photo with the KKK. This is what passes for logic in a right-wing Supreme Court. Shameful!"

Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on October 7, 2022. - (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (Standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson.
Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on October 7, 2022. - (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (Standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson.

OLIVIER DOULIERY/AFP via Getty

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During the same debate session, Alito tried cracking a joke about Kagan's familiarity with dating sites, including Ashley Madison, a discreet matchmaking platform marketed toward people interested in having an affair.

Alito read aloud a hypothetical scenario provided by the Jewish Coalition for Religious Liberty that supported the Colorado graphic designer, in which a lawyer argued that her situation is akin to if a Jewish artist was forced to create art that goes against their conscience.

The hypothetical read, "An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile." Alito, processing the scenario, said, "[JDate is] a dating service, I gather, for Jewish people." Kagan, who is Jewish, confirmed that Alito's assessment was correct.

Then Alito moved on to read a new hypothetical scenario, saying, "All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention. 'A Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.'"

The comment drew laughter from the audience, then Alito backtracked his comment, saying, "I'm not suggesting that-- she knows a lot of things. I'm not suggesting-- okay ... Does [the photographer] have to do it?"

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303 Creative LLC v. Elenis is a case with potential to walk back discrimination protections against members of the LGBTQ+ community. The Colorado graphic designer behind the lawsuit has not yet encountered requests from same-sex couples, but preemptively joined a lawsuit spearheaded by the anti-LGBTQ Alliance Defending Freedom.

Alito, who penned the Supreme Court decision that overturned Roe v. Wade in June, was not alone in his defense of 303 Creative LLC. In Monday's oral arguments, the conservative-leaning court seemed to suggest that it believes the Colorado graphic designer has a right to deny same-sex couples her services.