RIGHTS BLOG: Updates from the Department of Human Rights


U.S. Supreme Court Legalizes Same-Sex Marriage Nationwide

Posted on 6/26/15

In a 5-4 ruling in Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. (Obergefell v. Hodges), the United States Supreme Court ruled in favor of the petitioners that state statutes prohibiting same-sex marriages are unconstitutional under the Fourteenth Amendment to the U.S. Constitution. Same-sex marriage can no longer be prohibited under state law and states are required to recognize same-sex marriages performed in other states.

Minnesota legalized same-sex marriage in 2013 when Governor Dayton signed legislation on May 14, 2013.   The decision by the Supreme Court now requires all other states in the United States to recognize same-sex marriages from Minnesota.

Writing for the Court’s majority, Justice Anthony Kennedy, writes:

“The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the aban­donment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments al­lowed same-sex couples to lead more open and public lives."

Kennedy goes on to assert that same-sex marriage is a fundamental right under the United States Constitution:

“While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”

In the Obergefell decision the court concluded that:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. . . .Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Chief Justice Roberts, Justice Scalia, Justice Alito, and Justice Thomas all wrote separate dissents, ranging significantly in their tone and the content of their objections to the majorities’ reasoning.

In his dissent, Chief Justice Roberts argued for allowing states to continue to make decisions about same-sex marriage:

“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”

On Monday, the Court will release its final opinions of the term, including in the case involving Arizona’s use of a redistricting commissioner to draw congressional districts.


U.S. Supreme Court Upholds Disparate Impact Claims Under The Fair Housing Act

Posted on 6/26/15

“Much progress remains to be made in our Nation’s continuing struggle against racial isolation.  The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.” – Justice Anthony Kennedy

The Supreme Court inTexas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., issued a 5–4 decision, written by Justice Kennedy, upholding “disparate impact” claims under the Fair Housing Act (FHA).  The FHA was enacted in 1968 to address the stark, racist housing discrimination that was pervasive throughout the country.

Disparate impact claims involve challenges to neutral policies or actions that have a disproportionate negative effect on a minority group.  Because a disparate impact claim allows individuals an opportunity to prevail without direct evidence of malicious intent it has been a cornerstone of the fight against housing discrimination in the United States.

The Inclusive Communities case involved a challenge by affordable housing advocates as to how the Texas state housing agency allocated low-income housing tax credits to developers for the construction of affordable housing.  The advocates argued that more affordable housing should occur in Dallas suburbs as opposed to almost exclusively within high-poverty minority neighborhoods.  The tax credit program, the advocates argued, denied individuals who are ethnic minorities access to affordable housing in communities where they might access better schools and educational opportunities.

In the majority opinion, the Court acknowledged the “Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”  The Inclusive Communities Court noted that “recognition of disparate-impact claims is also consistent with the central purpose of the FHA, which [is] to eradicate discriminatory practices within a sector of the Nation’s economy.”  The Inclusive Communities Court in finding disparate claims existed under the FHA noted that the Supreme Court had previously interpreted the phrase “because of race” to also include disparate impact claims under Title VII, employment discrimination law, and ADEA, age discrimination employment law.

Justice Kennedy writing for the majority noted that disparate-impact liability “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”  Justice Kennedy further added, “Disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”

The majority in Inclusive Communities was careful to note that they were not suggesting that the use of quotas would always be constitutional as a remedy.  “Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision . . . [r]emedial orders that impose racial targets or quotas might raise difficult constitutional questions.”

Justices Alito, Scalia, Thomas and Roberts filed a dissenting opinion suggesting that the Court made “a serious mistake” in rendering its decision.  The dissent argued that the language “because of” only refers to intentional discrimination and not disparate impact.

Civil rights groups across the country hail the decision as an important victory for civil rights in the United States in proving discrimination.  Michele L. Jawando of the Center for American Progress released a statement, “We are pleased that the Supreme Court . . . ensur[ed] the survival of an important tool to combat discrimination in America’s housing market.  [This case] marks an important milestone for equality and inclusiveness in America.”  “After all,” writes Amy Howe of SCOTUSblog, “government officials and businesses rarely announce that they intend to discriminate.”

The Inclusive Communities decision will allow individuals to continue to pursue:

  • Steering cases in which potential homebuyers are shown fewer homes or homes in certain neighborhoods by real estate agents
  • Denial of home loans by lending institutions when individuals with similar credit scores or financial net worth receive loans
  • Landlord has a neutral policy to exclude tenants but the policy has a disparate impact on individuals from certain racial or ethnic communities

The Fair Housing Act was passed by Congress one week after Dr. Martin Luther King, Jr.’s assassination in 1968.


Supreme Court Changes the Rules on Religious Accommodation with New Ruling

Posted on 6/12/15

woman wearing hijabThe Supreme Court came to a decision last week on the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., ruling 8-to-1 in favor of Samantha Elauf, the young Muslim woman who originally filed the case. In 2008, when Elauf was 17, she was denied a job at an Abercrombie store in Tulsa, Oklahoma after she wore a headscarf to her interview. According to Abercrombie, headscarves violate the company’s employee “look policy”, which prohibits “caps,” but Elauf argues that she was wearing the headscarf for religious reasons. She decided to file a religious discrimination complaint with the Equal Employment Opportunity Commissioner (EEOC), which eventually made it up to the Supreme Court.

Abercrombie contended that Elauf hadn’t notified the store of her need for religious accommodation, reasoning that without that direct request they did not engage in illegal discrimination. The company cited numerous other instances where they made accommodations upon request, including accommodations for hijabs like Elauf’s. The question before the Supreme Court, then, was whether or not a potential or current employee could file a discrimination claim if they do not explicitly notify an employer of their need for accommodation.

On Monday, June 1st, the court ruled in favor of Elauf and the EEOC. Announcing the Court’s opinion, Justice Scalia described the case as “really easy,” going on to state that Abercrombie “at least suspected” that Elauf wore her hijab for religious reasons. That, according to Scalia, was enough to determine that Abercrombie denied Elauf employment in order to avoid making religious accommodations for her. In the ruling, Scalia makes the comparison to an employer denying employment to an applicant whom they suspect is Jewish, in order to avoid accommodating that employee’s need to take Saturdays off for the Sabbath.

Some have expressed concerns that this ruling will provide difficulties for small businesses, which “do not have lawyers or HR professionals on staff to guide them” on whether or not a religious accommodation is necessary. Groups representing religious minorities, however, have celebrated the ruling, citing it as a victory for religious rights.

In short: Following last week’s ruling on EEOC v. Abercrombie, employers are now required to accommodate religious practices for employees and job applicants if the employer even suspects that such accommodation is necessary. Read more on Religious Accommodations in the MDHR FAQ.