Shitshow at the Supreme Court - 303 Creative v. Elenis Edition
Sam Alito makes racist jokes on the bench, because he finds the potential erasure of LGBTQ and Black people from public life funny, apparently.
Well, here we are again. It was already clear that we would have to hear absolutely unhinged comparisons to Black people during the oral arguments in the case “303 Creative v. Eleni” from the Federalist Society Six on the bench. And yet, Sam Alito took the cake (pun intended, as you will see. The German version of this idiom is “shot the bird”, which is aptly more violent, but unfortunately makes no sense in English, so cake it is. But cake is, unfortunately, topical). Because Sam Alito, and I shit you not, was joking around about “Black kids running around in KKK robes” trying to sit on a “Black Santa’s lap”. On the bench of the highest Court of the land.
In case you have no fucking clue what I’m talking about, I envy you, because that means you didn’t listen to the absolute garbage fest that were the oral arguments in the 303 Creative v. Elenis case today. So, what on earth is up with Sam Alito? He’s high on victory, I’d say, he’s straight-up trolling. Because he knows that he and his buddies have an iron-clad majority.
But before I lose you because non of this insanity makes sense (couldn’t blame you, tbh), let’s back up. What is this case about and why is Sam Alito doing his horrific stand-up-routine?
This is essentially a re-do of the Masterpiece Cakeshop case - only more unhinged. Yes, that’s possible. Lorie Smith, the woman who owns the graphic design firm 303 Creative, wants a religious exemption from a Colorado non-discrimination law which forbids it to discriminate against protected classes, because she doesn’t want to design Websites for same-sex couples. Mind you, she has not yet been asked by a same sex couple to design a wedding website for them. There is no conflict here. It is a fucking hypothetical. So, essentially, she is asking for what is called an “advisory opinion”. Casual thing to ask the Supreme Court. So this case has no business being in front of the SCOTUS to begin with. However, this SCOTUS has shown that it doesn’t give a flying fuck and will take on whatever case not based on merit but based on whether or not it allows them to advance their White Christian Nationalist Agenda.
Now, what does it have to do with Masterpiece Cake Shop? That case was out of Colorado, too. In that case, a baker essentially claimed cakes as “speech”. Here, the graphic designer is claiming that a wedding website is “speech” and that her designing a hypothetical wedding website which no one has asked her to make, would mean that she is endorsing said speech. The same lawyer for the Alliance Defending Freedom - an anti LGBTQ-Hate Group (greetings to German TERFs who make common cause with them) - who argued Masterpiece Cake Shop was back before the Supreme Court today, trying to pave the way to discriminate against gay people - and then, ultimately, other marginalized groups as well. But more about that later.
As Imani Gandhi explained on the BoomLawyered Livestream, a pre-enforcement action can be filed sometimes, if there is an immediate repercussion that is imminent, like when criminal liability is attached and enforced as soon as someone violates the law - which is not the case in 303 Creative. Again: Lori Smith does not design wedding websites for same sex couples. This is a non-issue. And yet, here we are.
The ADF claims that this poor Christian graphic designer is being forced to created wedding websites for gay couples. Not only though has she not been asked to create one, the Colorado law simply states that she has to sell the same service to everyone. As Mark Jospeh Stern succinctly analyses in Slate:
„Colorado says she must sell her website template to all customers, regardless of their identity. She need not create a new template or “speak” in support of any marriage. At most, if she makes a wedding website for Henry and Fiona, she must sell the same template to Henry and Frank. As Colorado Solicitor General Eric Olson acknowledged, she could even make a template that (for some reason) condemned same-sex marriage. This speech is permitted. Colorado targets only the conduct of refusing to sell that product to gay people.“
But of course, that means that the real story is a lot less sympathetic to the graphic designer - and in fact, absurd. It also makes the actual goal of the lawsuit blatantly obvious.
How does this nonsense lead us to Sam Alito’s fun shenanigans about Black people and the KKK? Well, buckle up. Because 5 years ago, during the oral arguments in Masterpiece Cake Shop, we heard similar stuff. Back then, the “argument” was, Could a Black cake designer be forced to make a cake for the KKK?
And, mind you, back then, the answer was already NO. Because, repeat after me:
MEMBERSHIP IN THE KKK IS NOT A PROTECTED CLASS. MEMBERSHIP IN THE KKK IS NOT A PROTECTED CLASS. MEMBERSHIP IN THE-
Anyway. So, the ADF lawyer was asked for another example by the non-conservatives justices to explain her argument. They asked her, if, for example, a Black couple asked Lori Smith to make a cake for them and she said no - would she be allowed to refuse them? Ketanji Brown Jackson gave another hypothetical: If there was a White Santa and there was a sign that said due to our religious beliefs, no Black kids can sit on White Santa’s lap. Would that be allowed? Waggoner, the ADF lawyer was struggling, because of course she was - there is no coherent way to make a logical argument for bigotry, as she was trying to do - claiming that the photograph, other than the website, was not “speech” - which led Sonia Sotomayor to point out, that that is nonsensical.
Cue- Sam Alito to the rescue of the ADF attorney! And he actually said: “What if there is a Black Santa…” And I swear to God, the moment he said that, I wanted to crawl outside of my skin, because I knew what would come now was absolutely racist garbage. And of course, Alito didn’t disappoint (unfortunately): “What if there is a Black Santa and there are Black children dressed in KKK robes.”
At this point, I screamed into my hands, in which I had buried my face into. If there’s a Black Santa and Black kids in KKK robes, would they be allowed on Black Santa’s lap? That was Sam Alito’s question. I’m not kidding. And I have no fucking clue what he was even trying to do here, except fuck around on the bench, express racial animus and joke around while there is a case in front of him that is essentially trying to rewrite the first amendment. Jokes!
The KKK-”argument”, by the way, is still very popular, even amongst “Never Trump” conservatives like this guy here:
To which I can only say:
And, because the New York Times had yet another god-awful headline, I have to point something else out. The original headline claimed that this case pits “religion against gay rights” - no it fucking doesn’t. The Court didn’t agree that this was an “exercise of religion” issue - only that this was an “exercise of free speech issue”. So, after criticism, the NYT changed it to - well, this. And I’ll just let the great Jeff Sharlet speak on what I think of this:
But let me make one thing clear: the ADF attorney Waggoner essentially argued, that if a website designer kept saying “no one on either side should be compelled to make speech”, when she was asked if the same argument would extend to a designer refusing to serve Black people. Of course, this case is not about speech. It is non-sensical to claim that it is. This is about White Christian nationalists wanting to act out their persecution complex, which they hide behind to change society’s rules according to their liking - majority opinion and laws be damned. It is a case about the Religious Rights’ disgust with any social progress whatsoever, be that in the treatment of gay people, or - because it sure as hell won’t stop there! - of LGBTQ people or Black people. They’re mad they can’t discriminate against groups they despise anymore - so they sent the ADF in front of this court that is dominated by Fed Soc hacks. It is, as is the whole political project, about the erasure of people from marginalized groups from public civic life, if their mere existence offends White conservative Christian sensibilities.
This is why this case is so dangerous: This is, of course, about right-wing bigots wanting to discriminate against gay people. But it would also open the gates to discrimination against ANY protected class - based on race, on disability, you name it.
And this is why this case is so important to the religious bigots on this court: Because it is essential to their plan to reinterpret existing laws to create a society in which White conservative Christians rule - and have the power to discriminate against whoever they find disgusting as a group, whether that’s gay people, LGBTQ people, non-religious people or people of the “wrong” religion, or of the “wrong” skin color. This is the case that could erase years of civil rights protections. The fact that SCOTUS was even willing to listen to this ridiculous non-case does not bode well for civil rights - and lets me fear the worst when it comes to the ruling. This Court will rule with the bigots.
And folks, you cannot imagine how not emotionally ready I am for the oral arguments in Harper v Moore on Wednesday. You know, the case that could end democracy with quick gunshot to the neck, essentially. So, ugh, stay tuned.
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