Social media users have responded sharply to a joke Supreme Court Justice Samuel Alito made about the Ku Klux Klan (KKK) on Monday during oral arguments for a controversial case.
Lorie Smith, a Christian web designer from Colorado, is behind the case, 303 Creative LLC v. Elenis. Smith, who believes that marriage is “only between one man and one woman,” says that Colorado’s Anti-Discrimination Act would force her to act against her faith and violates her First Amendment rights by requiring her to create websites for same-sex marriages.
As a hypothetical example during oral arguments, Alito asked if a Black individual working as a mall Santa would be compelled to take a picture with a child dressed up in a KKK outfit. Colorado Solicitor General Eric Olson, who is representing the state in the challenge against its law, responded that this wouldn’t be the case, since those outfits “are not protected characteristics under public accommodation laws.”
Justice Alito jokes with Justice Kagan that, “You do see a lot of Black children in Ku Klux Klan outfits all the time,” during oral arguments in a free speech case. pic.twitter.com/QoCfDVhuEQ
— The Recount (@therecount) December 5, 2022
Public accommodation laws, which can be enforced at both the state and federal level, are meant to protect designated groups from discrimination in places that are considered “public accommodations.”
Justice Elena Kagan then chimed in to say that “presumably that would be the same Ku Klux Klan outfit regardless whether if the child was Black or white or any other characteristic.”
“You do see a lot of Black children in Ku Klux Klan outfits all the time,” Alito joked in response.
The remark was met with some laughter, however Alito’s joke also spurred sharp criticism.
“I’m listening but 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,” Sherrilyn Ifill, a law professor and former president and director-counsel of the NAACP Legal Defense Fund, tweeted on Monday.
This argument….follow @mjs_DC and @chrisgeidner for a live tweet. I’m listening but 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.
— Sherrilyn Ifill (@SIfill_) December 5, 2022
“I’m going to need Justice Alito to stop joking about seeing ‘Black children in Ku Klux Klan costumes,’ tweeted Melissa Murray, a professor at New York University’s (NYU) law school. “Seriously, what am I listening to?”
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?
— Melissa Murray (@ProfMMurray) December 5, 2022
Katherine Franke, a law professor at Columbia University and director of the school’s Center for Gender & Sexuality Law, also weighed in on Alito’s remark.
“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,” Franke wrote. “And, ahem – Klan jokes aren’t funny under any context.”
Oral arg in #303Creative: 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.
— Katherine Franke (@ProfKFranke) December 5, 2022
Meanwhile, another Twitter user, @itsalexnj, had a more succinct response and tweeted: “Egregious, horrific behavior from a Supreme Court justice.”
The comment by Alito and oral arguments heard on Monday come amid concern that the Supreme Court could seek to overturn the Obergefell v. Hodges case, which legalized same-sex marriage in the United States, following the Court’s recent decision to overturn the ruling in Roe v. Wade, which granted women the federal right to an abortion.
Newsweek reached out to Alito for comment.
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