Judges often use “assumptions” to test legal theories and the limits of a party’s case. This is partly because the court does not only intervene to decide the details of the case before it, but to establish the jurisprudence that governs the nation.
And challenger Lorie Smith’s claim that she couldn’t create a gay marriage website without violating her religious beliefs — a stance that Colorado says violates the state’s anti-discrimination law. ‘State protecting on the basis of sexual orientation – was full of imaginative applications.
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Memoirs in the case touched on a Hindu calligrapher hypothetically commissioned to write ‘Jesus is Lord’, a Democratic freelance speechwriter possibly forced to provide his services to Republicans and whether a Christmas store might be allowed to say “No Jews are allowed”.
It was liberal Justice Ketanji Brown Jackson who first brought up the idea of Santa Clauses in malls. She envisioned a hypothetical business at the mall that offered a product called ‘Scenes with Santa’, which would produce sepia-toned images with ‘its own take on nostalgia for Christmases past’, much like scenes from the movie ‘C’ is a wonderful life”. .”
Because they’re trying to “capture the feelings of a certain era, it’s their policy that only white children can be photographed with Santa Claus in this manner,” Jackson said. She added that the company “will be happy to refer families of color to Santa at the other end of the mall who will take anyone.”
Smith’s attorney, Kristen Waggoner, struggled to answer the question of whether that denial should be allowed. Beneath Jackson’s stubborn follow-ups, Wagoner concluded, “I say the same clarity of message isn’t in this photo, but there are hard lines to draw and it may be a borderline case, but [Smith’s case] is not.”
Judge Elena Kagan looked incredulous: “It may be a marginal case”, meaning it could fall one way or the other, aren’t you sure?
When Colorado Solicitor General Eric R. Olson was before the judges, Alito, a conservative, took over the Santa Claus discussion – with his own twist.
“Judge Jackson’s example of the – Santa in the mall who doesn’t want his picture taken with black kids, so if there’s a – a black Santa at the other end of the mall , and he doesn’t want to have his picture taken with a kid wearing a Ku Klux Klan outfit, what – this black Santa has to do that?” Alito asked.
“No,” Olson replied, “because Ku Klux Klan outfits are not features protected by public accommodation laws.”
Then Kagan chimed in: “And, presumably, it would be the same Ku Klux Klan outfit whether the child was black or white or any other characteristic.”
Before Olson could respond to Kagan, Alito replied, somewhat sarcastically, “You see a lot of black kids in Ku Klux Klan outfits, don’t you? All the–all the time.
There was nervous laughter in the yard, and it didn’t seem clear if Alito was joking about black kids in Klan outfits or reacting to the idea of a black kid wearing such a thing.
Kagan took over at that point, raising a different hypothesis. But Alito later in the argument returned “to my example of Black Santa”.
If a state has said a company cannot discriminate based on political ideology – as some jurisdictions do – “then the photo must be taken?” Alito asked Olson.
“I think that’s likely — those distinctions of political ideology are subject to much more difficult constitutional scrutiny, and I think they’re distinct in nature from the kind of characteristics we’re talking about here, which are categories of heinous discrimination,” Olson said in response. .
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Alito is an effective questioner from the bench, feared by lawyers arguing for liberal causes. But humor is not his forte and he often complains that the media distorts his opinions. He once began a stern address to the conservative Federal Society saying he was pessimistic that his comments would not be misrepresented or misunderstood. Yet, he said, “there it is.”
liberals, meanwhile, are hardly in the mood to be charitable about Alito’s intentions after he wrote the opinion last year that overturned abortion rights established by Roe v. Wade. He also recently denied an allegation by a former anti-abortion campaigner that he or his wife disclosed to conservative donors the outcome of an ongoing 2014 case over contraceptives and religious rights.
Alito’s “black Santa” example wasn’t the only comment Monday that caught fire.
Another of his assumptions involved a request for a photographer to take a photo for the person’s “Jdate dating profile”.
“It’s a dating service, I guess, for Jews,” said Alito, a devout Catholic.
Kagan, who is Jewish, chimed in, “It is.
This also caused laughter in the courtroom.
Alito continued, “Okay. Perhaps Judge Kagan will also know the next website that I will mention. So, next, a Jewish person asks a Jewish photographer to take a photo for their ashleymadison.com dating profile.
It is a website where married people search for business partners. As the official court transcript shows, this comment, again, product “(Laughs.)”
“I’m not suggesting that,” Alito said in response to laughter. “I mean, she knows a lot of things. I’m not suggesting – okay. Should he do it?