Alito Teases Kagan About Dating Sites and Black Children in K.K.K. Outfits

Justice Samuel A. Alito Jr. drew laughter on Monday as the Supreme Court heard arguments over whether a website designer has a First Amendment right to refuse to sell wedding websites to same-sex couples, joking with Justice Elena Kagan about hypothetical analogies involving dating websites and a Black mall Santa Claus.

The slightly awkward moment came as Justice Alito asked Eric R. Olson, Colorado’s solicitor general, to consider an example involving JDate.com, an online service aimed at matching Jewish singles.

“An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile — it’s a dating service, I gather, for Jewish people —” Justice Alito began.

“It is!” jumped in Justice Kagan, who is Jewish.

Laughter filled the room as Justice Alito continued: “All right, maybe Justice Kagan will also be familiar with the next website I’m going to mention. So next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile —”

AshleyMadison.com is a dating website marketed at would-be adulterers. Laugher swelled again, and Justice Alito cut himself off, saying: “I’m not suggesting that. I mean, she knows a lot of things. I’m not suggesting…” He trailed off, before resuming his question to Mr. Olson: “OK, does he have to do it?”

The answer depends on what services that photographer offers, Mr. Olson replied. Justice Alito then returned to an earlier hypothetical shared by Justice Ketanji Brown Jackson, who described a shopping mall Santa Claus who objected to having his picture taken with Black children.

“So if there’s a Black Santa at the other end of the mall,” Justice Alito said, “and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, the Black Santa has to do that?”

No, Mr. Olson said, because unlike race or sexual orientation, wearing Ku Klux Klan outfits is not a protected characteristic under so-called public accommodations laws. Justice Kagan then added that presumably the answer would be the same whether the child wearing a K.K.K. outfit was white or Black. Justice Alito interjected, provoking more tittering:

“Yeah, you do see a lot of Black children with Ku Klux Klan outfits all the — all the time. Supposed that, I mean, ah …” he said, chuckling and trailing off.

After a pause, Justice Kagan said: “Can I, can I — yeah? Is that all right?”

“Sure,” Justice Alito said. Justice Kagan then started in on her own series of hypotheticals.