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RBG’s Mortgage and Homeownership Legacy Endures

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By Amy Tankersley

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Women are the fastest-growing segment of the mortgage market and are outpacing male homebuyers even during the challenges posed by the COVID-19 pandemic – a trend that has been highlighted as the nation mourns the loss of U.S. Supreme Court Justice Ruth Bader Ginsburg.

Following decades as a litigator, law professor, civil rights advocate, and jurist, Ginsburg, 87, died September 18 of complications from pancreatic cancer. A tireless advocate for women’s rights and legal foe of gender discrimination, Ginsburg devoted most of her professional life to removing legal barriers to education, the workforce, and financial independence for women and minority groups.

Petite and diminutive in size, Ginsburg made small but determined steps in addressing income, education, and career disparities between the sexes, but her work will cast a tall shadow over homeownership opportunities for marginalized groups for decades to come.

RBG’s humble roots

No stranger to gender discrimination herself, Ginsburg grew up in Brooklyn, New York, lost her mother at a young age, and was one of only a handful of women in her Harvard Law School class, whose dean asked of the female students: “Why are you at Harvard Law School, taking the place of a man?”

After transferring to and graduating joint-first in her class at Columbia Law School, Ginsburg became a professor at Columbia and Rutgers Law School. One of the few women in her field teaching civil procedure, she was informed that she would be paid less than her male colleagues because her husband, Martin Ginsburg, was a well-respected, well-paid professor specializing in tax law.

After being rejected for a court clerkship due to her gender and studying gender equality in Sweden, Ginsburg went on to co-found the Women’s Rights Project (WRP) at the American Civil Liberties Union (ACLU) in 1972. The WRP and ACLU jointly participated in more than 300 gender discrimination cases by 1974, when the Equal Credit Opportunity Act (ECOA) was enacted. The law made it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction – including a mortgage application – on the basis of race, color, religion, national origin, sex, marital status, or age. Bolstered by this landmark law, the WRP and ACLU continued to fight for plaintiffs facing all manner of discrimination.

Following her appointment as judge of the U.S. Court of Appeals for the District of Columbia Circuit in 1980, Ginsburg had the opportunity to rule on many of these cases. In 1993, President Bill Clinton nominated her as associate justice of the Supreme Court. Noting that Ginsburg could not get a job with a law firm in the 1960s because she was a woman and the mother of a young child – despite her academic and legal career achievements – Clinton said Ginsburg

Has repeatedly stood for the individual, the person less well-off, the outsider in society, and has given those people greater hope by telling them that they have a place in our legal system, by giving them a sense that the Constitution and the laws protect all the American people, not simply the powerful.

“Having experienced discrimination, she devoted the next 20 years of her career to fighting it and making this country a better place for our wives, our mothers, our sisters, and our daughters,” Clinton said. “She herself argued and won many of the women’s rights cases before the Supreme Court in the 1970s. Many admirers of her work say that she is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African-Americans.”

Meanwhile, the WRP and ACLU continue their work to preserve the rights granted by the ECOA and other laws today, as well as foster protections for same-sex couples, veterans, religious groups, and others – all individuals that have benefited from the opportunity to pursue social and financial advancement, including the ability to take out a mortgage and achieve the “American dream” of homeownership.

From justice to cultural icon

Ginsburg was perhaps best known for her “scathing” dissents from Supreme Court majority opinions, but legal scholars note that her own majority opinions reflected the judicial philosophies she developed from her time as a law professor and civil rights attorney. Her opinions advanced the cause of equality forward, removing employment, educational, social, and financial barriers for women and other groups facing historical discrimination for decades to come.

Some of Ginsburg’s most notable Supreme Court writings include:

  • United States v. Virginia (1996): Perhaps the best-known and most important majority opinion Ginsburg wrote in her 27 years on the High Court, this 7-1 decision has been hailed as the court’s effort to establish true sex equality as a fundamental constitutional norm. The majority opinion held that the male-only admissions policy of the Virginia Military Institute (VMI) was unconstitutional on the grounds that it was not created or maintained in order to further educational diversity. It further held that the Virginia Women’s Institute for Leadership, a parallel program created for women, could not offer women the same benefits as VMI offered men. “The court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in, and contribute to society based on their individual talents and capacities,” Ginsburg wrote.
  • Ledbetter v. Goodyear Tire & Rubber Co. (2007): In this 5-4 decision, the court ruled that a complaint filed by plaintiff Lilly Ledbetter, a former Goodyear manufacturing plant supervisor who alleged she was paid significantly less than her male counterparts, was time-barred by the statute of limitations under the Civil Rights Act of 1964. In her dissent, Ginsburg accused the majority justices of straying from the legislative intent of the Civil Rights Act and called upon the U.S. Congress to “correct this court’s parsimonious reading.” Two years later, Congress did just that, passing the Lilly Ledbetter Fair Pay Act to loosen the filing requirements in employee discrimination cases – and Ginsburg displayed a framed copy of the bill in her chambers.
  • Shelby County v. Holder (2013): This 5-4 decision struck down a formula at the heart of the Voting Rights Act of 1965 that required some states and localities with a history of minority voter discrimination to get changes cleared by the federal government prior to enacting them. Authoring the dissent, Ginsburg pointed to evidence that the formula remained responsive to current needs and stated, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet” – earning her the pop cultural moniker, “The Notorious R.B.G.,” in an internet meme that compared her to rapper Notorious B.I.G.
  • Burwell v. Hobby Lobby Stores Inc. (2014): This 5-4 decision affirmed the exemption of for-profit corporations from regulations its owners object to on religious grounds – in this case, the Affordable Care Act’s requirement that employers cover certain contraceptives for female employees. Ginsburg’s dissent in this case recalled the court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which held, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”

The work she leaves behind

The progress made by Ginsburg and the other activists who have followed her lead is obvious when you compare the Harvard dean’s question in the 1950s to the state of homeownership today. With impediments to pursuing education, career, financial, social, and other opportunities reduced, women and other marginalized individuals find themselves in a position of greater creditworthiness and ability to apply for mortgages, and equity in homeownership directly contributes to an individual’s ability to build wealth.

Consider the following:

However, despite the increased mobility of women in the workforce, enhanced career opportunities, and financial independence, it’s clear that we still have a long way to go in achieving true homeownership parity between the sexes. According to the 2020 Yale Insights Report, Single Women Get Lower Returns from Housing Investments, single females pay about 2 percent more when purchasing a home, and depending on how long they live in it, sell it for 2 percent less, losing an average of $1,600 per year, compared to their single male counterparts.

A July 2019 Freddie Mac report, Are Single Female Homebuyers on Your Radar? If Not, They Should Be, suggested that as single women continue to ramp up homebuying, lending and mortgage professionals can help address potential barriers to homeownership with a range of solutions and options that fit their finances.

“Despite their increase in percentage as homebuyers, single females, particularly millennials, may experience difficulties when getting a loan,” Freddie Mac stated in its report. “This is due in part because of pay inequality where women – when compared to men – may have lower incomes, resulting in greater difficulties in saving for a downpayment or getting a lower interest rate for their mortgage.”

The GSE said lenders and other mortgage professionals can approach this growing segment of homebuyers with options that are better aligned with their respective financial institutions, including: An online financial educational site with tools and information for prospective homebuyers; low downpayment options for qualified borrowers; and automated assessments for borrowers lacking a credit score.

Considering the legacy of her life’s work, Ginsburg wrote in her 2016 autobiography, My Own Words: “Real change – enduring change – happens one step at a time. You can’t have it all, all at once. We have made huge strides… but we have not reached nirvana. There’s still rampant discrimination on the basis of race, gender. It’s true that most of the explicit classifications – men are treated this way, women that way – are gone from the law books. But what remains is what has been called unconscious bias.”

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Notable Supreme Court rulings on mortgage-related cases

Other Supreme Court rulings during Ginsburg’s tenure with broader implications for housing and mortgages include:

  • Freeman v. Quicken Loans (2012): Unanimously held that Section 8(b) of the Real Estate Settlement Procedures Act (RESPA) prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties.
  • Robers v. United States (2014): Unanimous decision held that restitution in cases involving mortgage fraud is determined by the actual money loaned, not the value of the property.
  • Jesinoski v. Countrywide Home Loans Inc. (2015): Unanimously held that the Truth in Lending Act does not require borrowers to file a lawsuit to rescind loans; merely sending written notice is sufficient.
  • Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. (2015): Held that under the Fair Housing Act, individuals and groups can challenge a housing or lending policy or practice if it has a disproportionate adverse effect on protected classes, even if the negative effect was unintentional.
  • Obduskey v. McCarthy Holthus LLP (2019): Unanimously held that a business engaged in non-judicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act.
  • Seila Law v. CFPB: 5-4 decision held that the structure of the CFPB, with a single director who may only be terminated for cause, is unconstitutional, as it violates the separation of powers doctrine.