Significant Supreme Court Decisions – our Amicus Briefs

We at JALSA join with people of good will everywhere in saluting three landmark decisions this week in the United States Supreme Court. All three concern issues of broad concern in which JALSA has long been an advocate for the progressive, and ultimately successful, result.  Today, the Court ruled, 5-4, that gays and lesbians had the constitutional right to marry and to have their marriages recognized under state and federal law. This decision represents the culmination of a singularly rapid evolution in social and legal thinking, where both the public at large and the judiciary have come to see that laws restricting gay marriage are unacceptably discriminatory. JALSA has long joined in advocacy in favor of equal marriage, including amicus brief participation in the landmark Massachusetts case of Goodrich v. Dept. of Public Health (2003), and joins with the truly rainbow coalition of its supporters in hailing today’s decision.  On Wednesday, in a 6-3 decision, the Supreme Court upheld the Affordable Care Act, rejecting the argument that the omission of a reference to subsidies for persons purchasing their insurance on federal as opposed to state exchanges could be used to dismantle this highly successful and much-needed program. JALSA submitted an amicus brief which, alone among the numerous briefs of the amici and the parties, stressed that the punitive effect of a contrary ruling in states without their own exchanges would amount to unconstitutional coercion on the part of the federal government. Justice Kennedy, during oral argument, asked a question from the bench on precisely this issue; and while the ultimate opinion does not discuss the potential constitutional deficiency, Chief Justice Roberts’ emphasis on the calamitous “death spiral” that ruling for the plaintiffs would create in the insurance markets in those states, along with Justice Kennedy’s question, suggests that JALSA’s brief was not without influence.

The third hopeful decision was the 5-4 ruling, also on Wednesday, upholding the use of “disparate impact” analysis in finding discrimination under the Fair Housing Act. Had the Court gone the other way, the standard for recovery under the act would be proof of intentional discrimination, an almost insurmountable barrier for relief. JALSA has long championed the use of disparate impact in a variety of contexts, and is gratified that the Court rejected, however narrowly, a result that would effectively have gutted the Fair Housing Act. We thank our GLAD colleague Mary Bonauto for her inspiring litigation these many years and for the opportunity for JALSA to participate in many meaningful amici briefs in support of equal marriage; one of our founders of blessed memory, Daniel Levenson, who first encouraged us to become active in the movement for marriage equality over fifteen years ago; and JALSA activists Holly Gunner, Arline Isaacson, Norma Shapiro, and Brooke Lipsitt who shared those early days in the legislature defending that landmark Massachusetts Supreme Judicial Court decision.  Much appreciation to member Abigail Moncrieff, Associate Professor of Law at the Boston University School of Law and principal author of both of JALSA’s amici briefs in ACA cases, whose broad knowledge of health care and Supreme Court practice has allowed us to make a meaningful contribution on this issue.  JALSA’s Amicus Chair Joel Eigerman has provided our most recent brief in the First Circuit in a case dealing with disparate impact, a case in which our colleague at the Lawyers Committee for Civil and Economic Rights has worked to protect the employment rights of minority policemen who were subjected to a discriminatory hair test for the presence of drugs.  Thank you Laura Maslow-Armand for your work on behalf of those plaintiffs and our opportunity to participate. JALSA is a Boston-based human rights organization whose members have a long history of participation in legislative and judicial efforts to achieve equal rights, eliminate discrimination, protect separation of church and state, reduce gun violence, and to organize for social and economic justice. Persons interested in the development of progressive public policies are invited to participate with JALSA at this time in writing amicus briefs, organizing for economic justice, or helping to provide the necessary financial support that allows us to act on our Jewish values in addressing contemporary issues. jalsaoffice@gmail.com;  Sheila Decter, Executive Director