Friday, June 26, 2015

Fair Housing Act Lives

The Supremes have come down with a trio of scorchers in the last two days.  In a 6-3 vote, they upheld the Affordable Care Act and at least arguably adequate health insurance for everyone (Roberts wrote the opinion and managed to stay away the "great powers" nonsense he used in his prior opinion upholding the Act.  Scalia went straight of the rails in his dissent, of course, basically repeating the Cato Institute's extreme shoveling which boils down to saying that the federal government doesn't have taxing authority in spite of the 16th Amendment and doesn't have general welfare powers in spite of the main text of the Constitution.).  Today gay rights won 5-4 (And although the dissenters claim to be all about original intent, they displayed a complete ignorance of it here.  This decision will not lead to discrimination against conservative denominations; it will end the conservative denominations' use of state authority to prevent liberal denominations from performing same-sex marriages.  And since the dissent was never taught it, I'll point out that preventing denominations from using state power to enforce their beliefs on other denominations was exactly why the Founding Fathers adopted the religion clauses in the First Amendment.  The Four Horsemen will never admit what hypocrites they are, though.).

And yesterday the Fair Housing Act was salvaged 5-4, with the same line-up.  Disparate impact can still be used to make a discrimination case.  Disparate impact means that, if you look at the figures (in this case financial assistance for affordable housing) and they show impermissible discrimination (race, religion, etc.), you can use that to show discrimination.  You don't need a smoking gun, such as an in-house memo saying, "Don't sell to minorities."  Disparate impact became a thing when I was much younger and there was obvious red-lining going on in sales and lending, but the banks, builders, and real estate companies weren't stupid enough to leave a trail.  It was happening with winks and nods, but it was definitely happening.  So statistics became the evidence to keep discrimination at bay.  The majority yesterday decided that was a good thing.  The dissent would rather make the discrimination laws a dead letter by making them unenforceable unless the discriminating party attains an "ain't gonna happen" level of stupidity.  In other words the dissent wants to make discrimination effectively legal.  And that's about all you need to know about Roberts, Scalia, Alito, and Thomas.

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7 Comments:

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