Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/47

Rh , dissenting In an effort to find at least a sliver of support for disparate-impact liability in the text of the FHA, the principal respondent, the Solicitor General, and the Court pounce on the phrase "make unavailable." Under §804(a), it is unlawful "[t]o . . . make unavailable . . . a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U. S. C. §3604(a). See also §3605(a) (barring "discriminat[ion] against any person in making available such a [housing] transaction . . . because of race, color, religion, sex, handicap, familial status, or national origin"). The Solicitor General argues that "[t]he plain meaning of the phrase 'make unavailable' includes actions that have the result of making housing or transactions unavailable, regardless of whether the actions were intended to have that result." Brief for United States as Amicus Curiae 18 (emphasis added). This argument is not consistent with ordinary English usage.

It is doubtful that the Solicitor General’s argument accurately captures the "plain meaning" of the phrase “make unavailable” even when that phrase is not linked to the phrase "because of." "[M]ake unavailable" must be viewed together with the rest of the actions covered by §804(a), which applies when a party "refuse[s] to sell or rent" a dwelling, "refuse[s] to negotiate for the sale or rental" of a dwelling, "den[ies] a dwelling to any person," "or otherwise make[s] unavailable" a dwelling. §3604(a) (emphasis added). When a statute contains a list like this, we "avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving 'unintended breadth to the Acts of Congress.' " Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). See also, e.g., Yates v. United States, 574 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 14); id., at ___ (, concurring in judgment) (slip op., at 1). Here, the phrases