A week ago, the Court granted cert in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The case involves a challenge to the allocation of low-income housing tax credits under the Fair Housing Act. The narrow question for the Court is whether the Fair Housing Act recognizes disparate impact claims. But a far more important and far-reaching question lies in the background of the case: what is the constitutional status of disparate-impact claims?
Put this way, this question takes me to the end of last Term and Hobby Lobby. While the case was hailed at the time as either a victory for religious freedom or an attack on women's health care, a crucial aspect of this debate has gone almost unnoticed: how Justice Alito's opinion for the Court appears to short-circuit the ongoing conservative project to end the Second Reconstruction.
Hobby Lobby should have been an easy case. To be sure, this looked as yet another conservative attack on Obamacare through a lens of religious freedom. And yes, the conservative majority on the Court is not only a friend to corporate entities everywhere but also quite solicitous of claims of religious freedom. But the case still surprised me. Legal doctrine was (and still is) clear. Under Employment Division v. Smith, decided in 1990, the Court held that state laws of general applicability would not be interpreted as providing religious exemptions so long as the laws did not single out particular religions or practices. A contrary ruling, Justice Scalia wrote for the majority, "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." Under Smith, the Green family loses. The Affordable Care Act targets no religion and applies to every employer with over 50 employees.
But the legal challenge focused elsewhere. This was not a constitutional challenge but a statutory case. The plaintiffs challenged the law under the Religious Freedom Restoration Act ("RFRA"), a federal statute enacted in response to Smith. Per its language, RFRA sought "to restore the compelling interest test as set forth in Federal court cases before Employment Division of Oregon v. Smith and to guarantee its application in all cases where free exercise of religion is substantially burdened." According to Justice Alito in Hobby Lobby, however, RFRA did not simply reverse Smith; it did much more. This is where things get interesting. "By enacting RFRA," he wrote, "Congress went far beyond what this Court has held is constitutionally required." In a telling footnote, he took this point even further: "Even if RFRA simply restored the status quo ante, there is no reason to believe . . . that the law was meant to be limited to situations that fall within the holding of pre-Smith cases."
This is a remarkable concession, especially for a Court as reticent as this Court has been to understand and interpret the powers of Congress broadly. Can Congress enact statutes that go beyond constitutional requirements? In other words, can Congress exercise its powers beyond whatever substantive constitutional boundaries the Court has previously set? In the context of Hobby Lobby, can Congress essentially overrule Smith and implement its own understanding of religious freedom?
This is not an easy question, and never has been. That the Court does not give it the attention it deserves tells me that the Court is onto something altogether different and far more important. Constitutional principle is not about to get in the way of a revolution. This is particularly suspicious when we consider that RFRA as applied to federal actions was enacted under the Necessary and Proper Clause. This is the clause that, according to Justice Scalia in Printz, provides "the last, best hope of those who defend ultra vires congressional action.” Not so here.
We can make sense of RFRA and Justice Alito's interpretation in Hobby Lobby in two ways. One way is to argue that Smith is simply a misreading of the law. Justice Alito's opinion nods quite strongly in this direction. If so, Hobby Lobby overrules Smith sub silentio and must be understood as part of the Court's recent march toward expansion of religious freedom.
But I don't think this is the best way to understand Hobby Lobby. A better way is to understand Smith as underenforcing a constitutional norm. On this view, the case law is not protecting free religious exercise as far as the constitution allows, so that Congress has room to go farther. This is how RFRA can provide "even broader protection for religious liberty than was available" in earlier cases.
This is a charitable reading of Hobby Lobby, to be sure. For my purposes, it begs a more important question: how does the Court's robust understanding of congressional powers in Hobby Lobby square with its reticence to so understand congressional powers in other contexts?
This brings me to the inevitable end of the Second Reconstruction, by which I mean the iconic statutes that emerged from the civil rights struggles of the 1960's. The conservative majority on the Court has set its sights on these laws. The first to fall was Section 4(b) of the Voting Rights Act, its coverage formula, in the recent Shelby County case. This case is an example of a Court will not be deterred by precedent, originalism or even adherence to a judicial deference borne of a commitment to let democracy run its course. Shelby County was, at its core, an attack on the scope of congressional powers.
This is where last week’s cert grant in Texas Department of Housing and Community Affairs comes in. This is the third time the Court has accepted cert on the disparate impact question presented by the case. The prior cases were both settled before the Court could provide an answer. The third time may, indeed, be a charm.
The argument will be devastating in its simplicity. Under Section 1 of the Fourteenth Amendment, a constitutional violation arises only after a finding of intentional discrimination. The Court has not accepted disparate impact theory, which looks to the effects of the state action in question, for well over a generation. And yet, this is the theory that undergirds civil rights legislation, from Title VII and Section 2 of the VRA to the FHA. Note then the constitutional question: can Congress enforce a norm that is not within the substantive core of the constitutional provision in question? Or in the language of Hobby Lobby: can Congress enforce a constitutional provision farther than the Constitution allows?
Hobby Lobby never even asks this question. Instead, the Court reads the federal statute broadly while giving Congress far more power than a prior Court thought possible. In contrast, Shelby County narrows considerably the powers of Congress. Why does Congress have broad powers to enact a statute protecting religious freedom under the Necessary and Proper Clause and considerably less power to enact a statute enforcing the Reconstruction Amendments?
To be sure, cases can always be distinguished and doctrines can be compartmentalized. But to do so would be to give the conservative justices far more credit than they deserve.
There is a much more interesting and important lesson. The modern Court is a jealous guardian of state power and will go to any lengths to protect it against congressional encroachment. This Court is similarly suspicious of uses of race by state actors and will go to any lengths to reject them as inconsistent with constitutional norms. When these two factors meet -- race and federalism -- the results are predictable if often remarkable for how they lay bare for all to see what drives this Court.
This is Shelby County. This is also the future of the Civil Rights Act and the Second Reconstruction in general. This is, I suspect, Texas Department of Housing and Community Affairs.
In Ricci, the New Haven firefighters case, Justice Scalia explained his willingness to "merely postpone[ ] the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?" He underscored that "[t]he question is not an easy one." But we know better. As the Court continues its destructive march through the civil rights canon, it will be instructive to keep Hobby Lobby in mind.