Supremes Pass on Gay Marriage for Now, But Tee Up Major Race-Bias Case

Photograph by Mario Tama/Getty Images

With their 2014-15 term just around the corner, the justices of the U.S. Supreme Court decided not to decide on the constitutionality of same-sex marriage, at least for now. Instead, the high court added a potentially important race-discrimination case to its docket, one that could have big implications for would-be borrowers, banks, and other businesses.
This morning, the justices deferred action on gay marriage. They added a number of cases to their argument calendar but remained silent on no fewer than seven pending appeals that seek a ruling on the constitutional rights of same-sex couples. The high court often moves in mysterious ways, and it’s altogether possible that the justices are merely sifting competing briefs and trying to determine which of the potential gay-marriage cases would make for the most appropriate vehicle to rule on a social issue of such widespread interest.
As my colleague Greg Stohr, the ace Supreme Court reporter for Bloomberg News, noted this morning: “Dozens of lower court rulings have backed gay marriage since the justices sidestepped the issue in a pair of cases in 2013. Gay couples can now legally wed in 19 states.”
In what could become the most significant business-related case of the term, the justices agreed to decide whether people suing for housing discrimination must prove they were victims of intentional bias or can use statistical patterns to demonstrate they probably suffered mistreatment because of their race. Back to Bloomberg’s Stohr for details on the bias case:

The justices will hear an appeal from Texas officials sued under the U.S. Fair Housing Act over tax credits for low-income building projects. The question is whether people can sue by showing a practice had a “disparate impact” on racial minorities, or whether they must meet a higher standard by proving intentional bias.

The court will consider jettisoning the disparate-impact theory, which has helped the Obama administration get hundreds of millions of dollars in fair-lending settlements with Bank of America, Wells Fargo, and other financial institutions. The court has twice before granted review on the issue, only to have settlements scuttle the case. “The far-reaching scope of disparate-impact liability makes this a question of exceptional importance,” Texas officials led by Attorney General Greg Abbott argued in their appeal.

President Barack Obama’s administration and civil rights advocates have sought to steer the issue away from the Supreme Court. In other contexts, the court under Chief Justice John Roberts has cut back legal protection for racial minorities.

Texas is fighting a lawsuit by the Inclusive Communities Project, a Dallas-based group that advocates for integrated housing. The organization accuses Texas of allocating a disproportionate number of federal low-income housing tax credits to minority neighborhoods. … Disparate-impact claims focus on the effect of a disputed policy without requiring evidence of intent. The question for the Supreme Court is whether the Fair Housing Act authorizes those suits. Although the Supreme Court has allowed disparate-impact claims under other federal discrimination statutes, Texas says the wording of the Fair Housing Act is different in crucial respects. …

The case could also affect the Equal Credit Opportunity Act, the law used by the administration against Bank of America and Wells Fargo. The Consumer Financial Protection Bureau has relied on the disparate-impact doctrine in enforcing that law, which contains language similar to that in the Fair Housing Act.

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