IT HAS been a dramatic week at the Supreme Court. On January 16th the justices agreed to consider, in April, whether gay couples have a constitutional right to marry. (A decision will come in June.) On January 21st seven hecklers disrupted the marble-pillared courtroom to protest about a five-year-old free-speech case. And the court heard Texas Department of Housing v Inclusive Communities Project (ICP), a dispute about housing that could affect the way America deals with claims of racial discrimination more broadly.

The narrow issue concerns subsidised homes. Texas doles out tax credits to firms that build apartment blocks for poor people. Under the Fair Housing Act of 1968 lenders, landlords and developers are all barred from discriminating against individuals “because of race”. The ICP, a nonprofit, claims that the Texan state housing agency did just that. From 1995 to 2009 it gave no credits to build cheap homes in the white suburbs of Dallas, backing development in neighbourhoods populated by racial minorities instead. This perpetuated “ghetto conditions”, says the ICP.

Not so, says Texas. Developers built subsidised homes in poor areas because land is cheaper there and the neighbours are unlikely to object. There is no evidence of intentional discrimination, so the ICP is relying on the theory of “disparate impact”, which deems any act that disproportionately harms minorities to be discriminatory, regardless of intent.

And this is where the case gets interesting. “Disparate impact” is much easier to prove than deliberate discrimination, so civil-rights activists love it. Businesses hate it, because almost anything a large organisation does will have a disparate impact on some group or another. Conservatives hope that the court will use this case as a step towards striking down disparate impact theory entirely—a result that would appal Barack Obama, whose officials have been pushing for it to be used more widely not only in housing but also in cases to do with employment, lending and schools.

Such a bombshell is unlikely, but not impossible. “Racial disparity is not racial discrimination,” scolded Justice Antonin Scalia, a conservative, “The fact that the NFL is largely black players is not discrimination.” A decision is expected in the spring and may turn on Justice Anthony Kennedy, who sometimes favours race-conscious government measures.