Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/48

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Alito, J., dissenting

that precede "make unavailable" unmistakably describe intentional deprivations of equal treatment, not merely actions that happen to have a disparate effect. See American Ins. Assn., ___ F. Supp. 3d, at ___, 2014 WL 5802283, at *8 (citing Webster’s Third New International Dictionary 603, 848, 1363, 1910 (1966)). Section 804(a), moreover, prefaces "make unavailable" with "or otherwise," thus creating a catchall. Catchalls must be read "restrictively" to be "like" the listed terms. Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 384–385 (2003). The result of these ordinary rules of interpretation is that even without "because of," the phrase "make unavailable" likely would require intentionality.

The FHA’s inclusion of "because of," however, removes any doubt. Sections 804(a) and 805(a) apply only when a party makes a dwelling or transaction unavailable "because of" race or another protected characteristic. In ordinary English usage, when a person makes something unavailable "because of" some factor, that factor must be a reason for the act.

Here is an example. Suppose that Congress increases the minimum wage. Some economists believe that such legislation reduces the number of jobs available for "unskilled workers," Fuller & Geide-Stevenson, Consensus Among Economists: Revisited, 34 J. Econ. Educ. 369, 378 (2003), and minorities tend to be disproportionately represented in this group, see, e.g.', Dept. of Commerce, Bureau of Census, Detailed Years of School Completed by People 25 Years and Over by Sex, Age Groups, Race and Hispanic Origin: 2014, online at (all Internet materials as visited June 23, 2015, and available in Clerk of Court’s case file). Assuming for the sake of argument that these economists are correct, would it be fair to say that Congress made jobs unavailable to African-