January 29, 2023

SANTA CLAUSE: Justice KBJ uses a holiday analogy to shut down discrimination defense

SANTA CLAUSE: Justice KBJ uses a holiday analogy to shut down discrimination defense

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The attorney representing a designer of wedding websites found herself flustered when, as she argued before the Supreme Court, the newest Justice on the bench asked her to explain how her client’s plea to be allowed to discriminate is really different from denying Black kids a photo with Santa.


Said lawyer resorted to almost admitting that the desire to discriminate is “vile” and “reprehensible,” as she argued that the court has protected equally awful — and even violent — speech in the past.

Lorie Smith runs 303 Creative LLC, where she designs websites for couples as they plan their weddings, and Kristen Waggoner is her attorney.

They argue that her websites constitute “speech,” and that by creating one for a same-sex couple, she would be forced to endorse the marriage, which she opposes.

The Justices have pressed hard on how else this definition of freedom of expression might open the door to discrimination against protected classes, in several instances comparing the claimed ‘right’ to discriminate against LGBTQ people to the hypothetical ‘right’ to do the same based on race.

For instance, could someone also choose to deny interracial couples their wedding site?

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Justice Ketanji Brown Jackson, though, really laid out exactly what can of worms Smith is asking SCOTUS to open up, describing a hypothetical scenario in which a photography company with a vision of Christmas scenes from a pre-civil rights era set up in a mall, with the intent to stage photos of children with Santa, and only allow white children to participate.

Justice Jackson said:

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Give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called Scenes with Santa, and this business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940s and 1950s Santa scenes…because they’re trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way, because that’s how they view the scenes with Santa that they’re trying to depict.

Waggoner stumbled over her response, even trying to change the subject.

Jackson didn’t allow it.

“Because in the photograph itself, the objection is not contained in that photograph. But in addition, I think it’s important to remind the court –” the attorney began.

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“No no no, don’t leave,” Jackson directed.

She explained that her example aligns directly with Smith’s situation, as the hypothetical photographers have a ‘vision’ of their scene with only white children included, and insisted on a response.

“The specific objection that you’re including is not necessarily in that photograph, but even if it were, this court has protected vile, awful, reprehensible, violent speech in the past,” Waggoner insisted.

Listen to the exchange below:

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