06/26/2015 Kristine Tungol Cabagnot Headline News "TGIF, America! Supreme Court Upheld The Affordable Care Act And The Fair Housing Act; Ruled Same-Sex Marriage Legal Nationwide"

Washington, DC– The U.S. Supreme Court delivered major landmark decisions on Thursday and Friday, respectively, that may profoundly affect the lives of Americans across the nation.

The Affordable Care Act And The Fair Housing Act Upheld

In a ringing endorsement of the Affordable Care Act and the rule of law, the Supreme Court voted 6-3 in King v. Burwell on Thursday to uphold health care subsidies. The Court did not just uphold subsidies, it strongly defended the law, sending a message that serious legal threats to the case are over. Millions of people can rest easy, knowing they will still have access to quality, affordable health insurance.

Chief Justice Roberts penned the opinion, and in it he granted a sweeping victory for supporters of the law . The opinion reads: “In a democracy, the power to make the law rests with those chosen by the people. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

What’s most noteworthy about the opinion is how it was written. The Court did not employ theChevron doctrine, which calls for the justices to defer to the relevant agency if a statute is ambiguous. Instead, the Court resolved the ambiguity of the law itself ruling that the Chevron deference does not apply to questions of “deep economic and political significance.” Because the Court did not employ the Chevron doctrine, the next presidential administration will not be able to reinterpret the law to strip away tax subsidies. In other words, if Congressional Republicans want to gut the Affordable Care Act, they are going to have to do it themselves, without the help of the Court. That’s a big deal.

Justice Scalia wrote the dissent, expressing his distaste for the Affordable Care Act colorfully. With the majority opinion upholding the law, “words no longer have meaning,” wrote Scalia. “We should start calling this law SCOTUScare.”

Because of this decision, the 16.4 million people that have gained insurance under the ACA can rest easy. The 8.7 million enrollees receiving tax credits do not have to worry about their insurance being made unaffordable. The 129 million people with pre-existing conditions no longer have to worry about losing coverage or facing significant premium increases. Women will not be discriminated against just for being women, and growth of health care costs can continue to slow.

While most of Thursday’s attention has been on King v. Burwell, the Court ruled on another significant case on the same day. In a surprising 5-4 decision, the Supreme Court ruled in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc. that housing policies could be deemed discriminatory based on “disparate impact.” In other words, discrimination can be proven by showing that the impact of a housing policy is discriminatory even if the discrimination was not intended. Even unintentional housing discrimination denies families access to the social, economic, and health benefits that come along with appropriate housing opportunities. This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory, even if there was no conscious attempt to discriminate.

Some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, but the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:

“[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”

Even with the ruling, these kind of discrimination lawsuits are still difficult to win. The court made clear that it is not enough simply to show a disparate impact. Plaintiffs have to prove there was a specific policy without a legitimate business purpose that created the disparity.

“A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas. Courts must therefore examine with care whether a plaintiff has made out a prima facie showing of disparate impact, and prompt resolution of these cases is important. Policies, whether governmental or private, are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.”

Still, there is a significant difference between difficult and impossible. The law’s true impact stems not only from lawsuits that are fully adjudicated but from stakeholders knowing that the threat of a discrimination lawsuit is real. The court’s decision not only gives people a fighting chance to take on discriminatory housing policies, it also prevents a dangerous precedent of requiring proof of discriminatory intent that could have potentially undermined anti-discrimination in many other circumstances.

At the most basic level, the Supreme Court recognized fight against discrimination is not over, concluding, “The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”

Same-Sex Marriage Legal Nationwide

Continuing its hot streak, the U.S. Supreme Court ruled 5-4 Friday that it is legal for all Americans, no matter their gender or sexual orientation, to marry the people they love.

The decision is a historic victory for same-sex couples rights activists who have fought for years in the lower courts. Thirty-seven states and the District of Columbia already recognize marriage equality. The remaining 13 states ban these unions, even as public support has reached record levels nationwide.

The justices found that under the 14th Amendment, states must issue marriage licenses to same-sex couples and recognize same-sex unions that were legally performed in other states. Justice Anthony Kennedy delivered the majority opinion and was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor. In a rare move, the four dissenting justices each wrote an opinion.

The lead plaintiff in Obergefell v. Hodges is Ohio resident Jim Obergefell, who wanted to be listed as the surviving spouse on his husband’s death certificate. In 2013, Obergefell married his partner of two decades, John Arthur, who suffered from ALS. Arthur passed away in October of that year, three months after the couple filed their lawsuit.

Obergefell was joined by several dozen other plaintiffs from Kentucky, Michigan, Ohio and Tennessee who were fighting both to be able to marry and to have their marriage recognized in every state in the country.

In the majority opinion, the justices outlined several reasons marriage rights should be extended to same-sex couples. They wrote that the right to marriage is an inherent aspect of individual autonomy, since “decisions about marriage are among the most intimate that an individual can make.” They also said gay Americans have a right to “intimate association” beyond merely freedom from laws that ban homosexuality.

The country’s views of same-sex marriage have transformed since 2004, when Massachusetts became the first state to allow gay couples to wed. In 2013, the Supreme Court began chipping away at the country’s legacy of discrimination against same-sex couples when it struck down part of the 1996 Defense of Marriage Act, which prevented same-sex couples whose marriages were recognized by their home state from receiving the hundreds of benefits available to other married couples under federal law.

President Barack Obama became the first sitting president to support marriage equality when he came out in favor of it in 2012, the same year that the Democratic Party made it part of its platform for the first time. The Republican Party and its slate of 2016 presidential aspirants, however, remain opposed to same-sex marriage. Sen. Ted Cruz (R-Texas) and Wisconsin Gov. Scott Walker (R) support a constitutional amendment protecting states that want to ban marriage equality.

Some conservatives have advocated for a civil disobedience effort against a Supreme Court decision in favor of same-sex marriage. However, officials in red states expressed that they are prepared to implement the decision, going so far as to ready gender-neutral marriage licenses and set later office hours. Gerard Rickhoff, who oversees marriage licenses in Bexar County, Texas, said that if same-sex couples are discriminated against elsewhere in the state, “Just get in your car and come on down the highway. You’ll be embraced here.”

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Kristine Tungol Cabagnot is an attorney at Tungol Law, and welcomes your thoughts and queries at kristine@tungollaw.com.

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