Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/73

Rh , dissenting The Court is understandably worried about pretext. No one thinks that those who harm others because of protected characteristics should escape liability by conjuring up neutral excuses. Disparate-treatment liability, however, is attuned to this difficulty. Disparate impact can be evidence of disparate treatment. E.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 541–542 (1993) (opinion of ); Hunter v. Underwood, 471 U. S. 222, 233 (1985). As noted, the facially neutral requirements in Griggs created a strong inference of discriminatory intent. Nearly a half century later, federal judges have decades of experience sniffing out pretext. The Court also stresses that "many of our Nation's largest cities—entities that are potential defendants in disparate-impact suits—have submitted an amicus brief in this case supporting disparate-impact liability under the FHA." Ante, at 23–24.

This nod to federalism is puzzling. Only a minority of the States and only a small fraction of the Nation's municipalities have urged us to hold that the FHA allows disparate-impact suits. And even if a majority supported the Court’s position, that would not be a relevant consideration for a court. In any event, nothing prevents States and local government from enacting their own fair housing laws, including laws creating disparate-impact liability. See 42 U. S. C. §3615 (recognizing local authority).

The Court also claims that "[t]he existence of disparate-impact liability in the substantial majority of the Courts of Appeals for the last several decades" has not created "'dire consequences.'" Ante, at 24. But the Court concedes that disparate impact can be dangerous. See ante, at 18–22. Compare Magner, 619 F. 3d, at 833–838 (holding that efforts to prevent violations of the housing code may