Alito was also the justice who asked whether a Black person dressed as Santa could refuse to take a picture with a child dressed in a Ku Klux Klan outfit. Eric Olson, arguing on behalf of Colorado, responded “No,” because Ku Klux Klan outfits wouldn’t be protected under public accommodation laws.
Justice Elena Kagan added that Olson’s response wasn’t based on the race of the child wearing the outfit. In an awkward moment, Alito responded: “You do see a lot of Black children in Ku Klux Klan outfits, right? … All the time.”
The case is the second in which the court has wrestled with a case involving a Christian business owner who doesn’t want to provide a service for a same-sex wedding. Five years ago, the justices heard a different challenge involving Colorado’s law and a baker, Jack Phillips, who objected to designing a wedding cake for a gay couple. That case ended with a limited decision and set up a return of the issue to the high court. Smith’s lawyer, Kristen Waggoner of the Alliance Defending Freedom, also represented Phillips.
Smith’s opponents include the Biden administration, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund. Twenty mostly liberal states, including California and New York, are supporting Colorado, while 20 other mostly Republican states are supporting Smith.
White House press secretary Karine Jean-Pierre declined to weigh in on the case specifically following oral arguments Monday but said the “administration believes that every person, no matter their sex, race, religion or who they love, should have an equal access to society.”
The White House is currently awaiting final passage in Congress of the bill protecting same-sex and interracial marriage. It gained momentum following the Supreme Court’s decision earlier this year to end constitutional protections for abortion. That decision to overturn the 1973 Roe v. Wade ruling prompted questions about whether the court — now that it is more conservative — might also overturn its decision declaring a nationwide right to same-sex marriage. Justice Clarence Thomas explicitly said that decision, Obergefell v. Hodges, should be reconsidered.
During arguments at the court Monday, Justice Brett Kavanaugh asked Waggoner, Smith’s lawyer, about what would happen if the court sides with her. And he pointed to a section of her written submission to the high court where she said Smith as an artist is different from other business people including hairstylists, landscapers, plumbers, caterers, tailors, jewelers and restaurants that do not generally communicate a message through their work.
If she wins, Waggoner said, she might bring similar cases on behalf of others whose work involves creative inspiration. But, she said, “I won’t be coming back with a caterer.”
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Associated Press reporter Seung Min Kim contributed to this report.
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This article originally appeared here.
