Fair and Just Courts

What’s at Stake in the Supreme Court’s Fair Housing Case?

Although the case hasn’t gotten as much mainstream press attention as the forthcoming blockbuster rulings on marriage and on the ACA, the Supreme Court will be issuing a crucial decision on fair housing in the next few weeks in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A bad decision would reverse decades of positive decisions and progress in  fair housing.

As our nation learned during the riots of the 1960s, and is tragically re-learning today, segregation in housing is both a major cause and effect of our urban problems and inequality. Partly in response, Congress enacted the Fair Housing Act in 1968, with the explicit purpose to “provide, within constitutional limitations, for fair housing throughout the United States.” For almost four decades, every appellate court that has considered the issue and the Department of Housing and Urban Development (HUD) under both Republican and Democratic administrations have interpreted the Act to prohibit conduct that has a discriminatory effect based on race, color, religion, gender, disability, or familial status without a good justification. The issue in Texas Department is whether the Court will overturn that standard and rule that you don’t have a case under the Fair Housing Act unless you can prove specific intent to discriminate.

Why is this important? On a practical level, requiring proof of intent will make fair housing enforcement much more difficult; as one court noted, “clever men may easily conceal their motivations.” More broadly, discrimination and segregation often result from policies that may not be motivated by specific bad intent but that build on historic and systemic patterns of discrimination and lock out racial and other minorities. The “disparate impact” test, which is the legal term for the standard based on unjustified discriminatory effects, has helped combat that problem.

For example, in one case a building policy that imposed a limit of two people per bedroom resulted in the effective eviction from a one-bedroom apartment of a young couple who had just had a child. The policy was challenged based on disparate impact. It turned out there was no good business justification for the policy, and 150 units were opened up for families with children as a result. Similar challenges to policies that excluded disabled veterans by requiring residents to have full-time jobs or zoning restrictions that excluded racial minorities by requiring large lot sizes have helped break down long-entrenched problems of discrimination and exclusion.

All eleven federal courts of appeal that have considered this issue since the 1970s have approved the disparate impact standard. As explained in a brief to the Supreme Court by former Republican and Democratic HUD appointees, HUD has also followed this standard for decades. As a former HUD official and career-long civil rights attorney, I know the importance of the disparate impact test. As I wrote in a law review article more than 35 years ago, “only by concentrating on effect can the issue of discrimination be realistically addressed at all.”

If the Supreme Court overturns the long-accepted disparate impact standard, the continuing problems of discrimination and segregation in our country will only get worse in the years to come. The outcome of this case will have an enormous impact on millions of people throughout America, and on the nature of who we are as a nation.

PFAW Foundation

On Circuit Courts, An Opportunity for McConnell to Show He Can Govern

Mitch McConnell should allow a vote on Kara Stoll, to dispel the fears he generated that he won't allow votes on any circuit court nominees.

We're Finally Talking About 2016's Most Consequential Issue: The Future of the Supreme Court

Yesterday, in a speech in Texas on the importance of voting rights, Hillary Clinton made one of the most important remarks of her campaign so far: "We need a Supreme Court who cares more about the right to vote of a person than the right to buy an election of a corporation."

Money in Politics Survey Shows the Toxic Legacy of the Roberts Court

Six years after the Citizens United decision, overwhelming majorities recognize the corrosive impact money in politics has on our democracy. Why doesn't the Roberts Court?
PFAW Foundation

Roy Moore: Gay Marriage Will 'Literally Cause The Destruction Of Our Country'

In an interview with CNS News published over the weekend, Alabama Chief Justice Roy Moore warned that a Supreme Court ruling in favor of marriage equality would “literally cause the destruction of our country”:

“What [the court is] doing is they’re toying with something that’s like dynamite and will destroy our country,” Justice Roy Moore told CNSNews.com in an exclusive interview last week during the Family Research Council’s annual pastor’s retreat in Washington, D.C.

Moore said a favorable ruling would mean Americans would be forced to accept homosexual marriage and support it through goods and services for those ceremonies.

“I think there’s an attempt to destroy the institution of marriage and I think it will cause, literally cause the destruction of our country or lead to the destruction of our country over the long run,” Moore said. “And I think there are people who would like to see this country destroyed.”

“I’m not saying that everyone who’s homosexual wants to see the country destroyed,” Moore said. “I’m not saying that. I’m saying there’s a push for it.”

CNS News posted an audio clip of part of the interview:


Cornyn and Cruz Are Devastating Texas Courts

Waiting 15 months after learning of a planned vacancy before even beginning the process to fill it is hardly a sign of deep commitment to the federal courts in Texas.

On the 7th Circuit, It's Time for Ron Johnson to Get Out of the Way

It is long past time to fill the nation's oldest appellate court vacancy, which has been open more than five years.

Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

Nearly three months after unanimous committee approval, a Texas nominee still has not gotten a confirmation vote.

Harry Reid Calls Out Pat Toomey on GOP Blocking of Restrepo

Senator Toomey seems all too willing to sacrifice Pennsylvanians' interests to his party’s political goals.

Judicial Elections and Government Integrity at the Supreme Court

It isn’t just judges who risk the appearance of corruption when they engage with funders.
PFAW Foundation

PFAW Applauds Williams-Yulee Decision

However, Concerns over Buying Influence Apply to All Elected Officials

In response to the Supreme Court’s decision today in Williams-Yulee v. The Florida Bar which upheld Florida’s ban on judicial candidates directly soliciting campaign funds, People For the American Way Executive Vice President Marge Baker released the following statement:

“The Supreme Court came to the right decision today when it took a step to protect the integrity of our judicial process. Chief Justice Roberts was correct to note that the public can lose confidence in a judge if 'he comes to office by asking for favors.' The same concerns apply to all of our elected officials.

“Just as Americans want judges to be impartial rather than beholden to wealthy donors, we also want our elected officials to be working for the people rather than for their billionaire and corporate backers. In all branches of government, our democracy doesn’t work when it’s auctioned off to the highest bidder.

“The Supreme Court needs to understand what everyday Americans already do: that buying influence undermines our democracy no matter what type of election it is.”


Diversity vs. Scalia at Marriage Oral Arguments

Bringing her own experience to the bench, Justice Kagan helps Justice Scalia with a point that should have been obvious to him.
PFAW Foundation

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

Historical discrimination against gays and lesbians warrants heightened scrutiny under Equal Protection, not continued discrimination.
PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

Scalia says judicial interpretations of Equal Protection bypass the people, but it was the people who chose to constrain themselves with Equal Protection.
PFAW Foundation

Justice Ginsburg Tackles Idea That Marriage Definition Has Existed For Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

This post originally appeared on the blog of People For the American Way.

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

Marriage as it existed for much of our nation's history violates the 14th Amendment, as does today's exclusion of same-sex couples from the institution.
PFAW Foundation

Staver: Impeach Supreme Court Justices Who 'Go Off The Farm' On Marriage

In an interview with Iowa-based conservative talk radio host Steve Deace on Friday, Liberty Counsel founder Mat Staver said that he supported Sen. Ted Cruz’s bill to strip federal courts of jurisdiction over marriage cases, but added that he also doesn’t think it’s a “state right” to rule on the issue.

“Same-sex marriage is not a state right, any more than it a right of the United States Supreme Court or the federal courts to do this,” he said. “It’s no more a states’ rights issue than is changing the natural created order of anything.”

“For example,” he continued, “slavery is not a states’ rights issue…No, the issue of slavery is something that transcends state borders. I don’t all the sudden become confused about male and female when I drive into California from a neighboring state of Texas. It’s the same in California as it is in Texas, as it is in New York, as it is in Iowa, everywhere around the world has been the same. It is not the right of the state, any more than it is the right of the federal courts or the Supreme Court to redefine the natural created order of marriage.”

Staver told Deace that “there’s a lot of remedies” Congress can pursue to “rein this out-of-control judiciary back to its intended purpose,” including dissolving lower federal courts that rule in ways lawmakers dislike on marriage and impeaching Supreme Court justices who “go off the farm” on the issue.

“There’s only one court that’s ever required by the United States Constitution,” Staver explained, “the Supreme Court of the United States. No other lower federal courts of appeals or district courts are required, they’re at the will of Congress. Congress created them, Congress can do away with them.”

“Congress, as this particular piece of legislation is proposing, can limit their jurisdiction,” he continued.
“Congress can also impeach justices of the United States Supreme Court that go off the farm. They should exercise the right of impeachment when these justices or judges become legislators, activists, ideologues rather than umpires calling the shots as the balls and strikes goes over the plate. When they do that, they need to exercise their authority to impeach.”

“When the people lose trust in the courts, the courts lose their authority,” he added. “Congress can simply resist these unjust laws coming from these courts and reign this out-of-control judiciary back in its intended position.”

Anti-Gay Activists Warn Supreme Court of 'Tyranny' & God's 'Wrath Upon America' Following Marriage Decision

In a press conference today in front of the Supreme Court, Faith 2 Action’s Janet Porter gathered a who’s who of radical anti-gay activists and “ex-gays” to deliver “restraining orders” to the Supreme Court demanding that the justices not hear arguments on the constitutionality of same-sex marriage bans.

Far from a far-right pipe dream, Porter’s bill to block federal courts from ruling on marriage was introduced last week by Rep. Steve King in the House and Sen. Ted Cruz in the Senate. “We have appealed to Congress to restrain the judges, and the good news is Congress has heard our cry,” Porter said.

The activists, including Scott Lively, Peter LaBarbera and Bill Owens, also announced that they were filing a motion asking Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the case because they, in Lively’s words, “deliberately officiated at so-called homosexual wedding ceremonies.”

Ginsburg and Kagan, Lively charged, “have committed an unparalleled breach of judicial ethics by elevating the importance of their own favorite political cause of gay rights above the integrity of the court and of our nation.”

Porter distributed to attendees copies of her new anti-gay documentary “Light Wins,” which features a number of GOP politicians and conservative activists claiming that the institution of equal rights for LGBT people will lead to the “criminalization of Christianity,” a theme heard throughout the press conference.

Greg Quinlan, an “ex-gay” activist, echoed the Family Research Council’s Tony Perkins , saying a Supreme Court decision in favor of marriage equality “will bring open season on Torah Jews and biblical Christians, and it will definitely bring open season on those of us who left homosexuality.”

Steven Hotze of Conservative Republicans of Texas, a Roy Moore acolyte who has been advocating for a bill in his state barring the use of funds to issue marriage licenses to gay and lesbian couples if the state’s marriage ban is struck down, declared that gay marriage is “not a marriage, it’s a mirage, because it’s counterfeit, it’s a lie, it’s untrue.”

A decision in favor of marriage equality, he warned, “would force individuals to have to condone, accept, even celebrate sexual immorality among certain elements of the population and teach it to the children.”

“It would criminalize Christianity,” he added. “The pastors would be forced to have to marry those of the same-sex.”

Peter LaBarbera, the head of Americans for Truth About Homosexuality declared that the Supreme Court is “poised to nationalize a historical anomaly, so-called marriage based on a sexual perversion, as a constitutional right.”

“A nation cannot simultaneously honor God and codify sexual sin as a supposed civil right,” he said, adding that “apparently the ‘T’ in LGBT stands for ‘tyranny.’”

Bill Johnson, a former state official with the American Family Association who now runs the American Decency Association, warned that a decision favorable to marriage equality would invite God’s "wrath upon America:

Meanwhile, Wiley Drake, a pastor who has prayed for President Obama’s death, was filming the whole event, at one point turning around to tell reporters that America has a Christian “birth certificate.”

“Our nation has a birth certificate. The president doesn’t, but our nation does.”

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