On July 28, the United States Supreme Court ruled that it’s not illegal for a city to arrest people for sleeping outside—even when there is no shelter available.
Grants Pass, OR v. Johnson, Gloria, et al.—described by Vox as “the biggest case on homelessness in decades”—originated when plaintiffs sued the local government of Grants Pass, Oregon, for violating the Eighth Amendment ban on “cruel and unusual punishment” with its ban on outdoor sleeping and camping.
Their cause was supported by a 2018 ruling in another federal case, Martin v. Boise, which didn’t go up to the Supreme Court. The Ninth Circuit federal appeals court heard a challenge to “Camping and Disorderly Conduct Ordinances” in Boise, Idaho, which made it a criminal offense to camp or sleep in public or private buildings, or any public areas like streets or parks, without permission. The appeals court ruled against Boise, saying the Eighth Amendment law against “cruel and unusual punishment” prevents the city from “[criminalizing] indigent, homeless people … on the false premise they had a choice in the matter.”
It was also in 2018 that homelessness advocates sued over a similar law in Grants Pass. The Ninth Circuit district and appeals courts ruled in the plaintiffs’ favor, citing the Boise decision. But the city appealed, up to the Supreme Court. Grants Pass became a legal referendum on a bigger national question: Whether cities can legally evict and criminalize unhoused people who haven’t been provided shelter beds.
We now have our answer, with a 6-3 Supreme Court decision ruling in favor of cities against the homeless. The six Republican-appointed justices—Roberts, Alito, Thomas, Barrett, Kavanaugh and Gorsuch—ruled in the majority, with the three Democrat-appointees—Kagan, Sotomayor and Brown Jackson—dissenting.
“Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option.”
In Justice Neil Gorsuch’s majority opinion, he rejected the Eighth Amendment argument, concluding that cities and states should have the power to decide on homelessness policies: “The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”
Justice Sonia Sotomayor dissented, writing, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow … Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”
“The Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go,” she continued. “It is cruel and unusual to apply any penalty selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.”
Ed Johnson, director of litigation at the Oregon Law Center and lead counsel for the respondents, reacted to the decision in a press statement shared with Filter. “While this decision is disappointing, it is important to remember that the solution to America’s homelessness crisis does not rest with the Courts,” he said. “That job falls to all of us. The solution to our homelessness crisis is more affordable housing. The work to end homelessness in America will continue in town halls, state houses and on streets in every community in our country.”
“The Due Process Clause may well place constitutional limits on anti-homelessness ordinances.”
Johnson also noted two ways in which the Supreme Court’s decision was not as sweeping as it might have been. The court did not rule on the Excessive Fines clause—part of the Eighth amendment that limits the government from charging excessive fines as punishment. The District Court in Oregon ruled that Grant Pass municipal fines for camping served “no remedial purpose” because they were only in place to scare people away from camping or sleeping. The Ninth Circuit will now be able to decide whether the city’s appeal on this clause is forfeited.
The Supreme Court, Johnson added, also did not address whether the Grants Pass homelessness law violates the Due Process clause—part of the 14th Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law.” In her dissent, Sotomayor wrote, “this Court has concluded that some vagrancy laws are unconstitutionally vague … The Due Process Clause may well place constitutional limits on anti-homelessness ordinances.”
“In America … housing justice cannot be achieved without racial justice.”
The National Homelessness Law Center meanwhile reacted by calling on the Biden administration and Congress to prioritize investing at least $356 billion over the next year to support universal rental assistance for the lowest-income households, public housing repair and preservation, a national Housing Trust Fund, eviction and homelessness prevention, and voluntary supportive and emergency services.
“Everybody, regardless of race or background, needs a safe place to sleep,” the organization stated. “In America, where centuries of intentional policies push Black people, Indigenous people, and other people of color into homelessness at disproportionate rates, housing justice cannot be achieved without achieving racial justice … America is the richest country in the world. We can afford to ensure that everybody has a roof over their heads, a warm bed, and a door to lock.”
Legal and political battles over homelessness are going nowhere.
The West Coast and Rocky Mountains, in the Ninth Circuit jurisdiction that the Martin and Grants Pass cases applied to, have seen several other lawsuits on the issue. Ilan Wurman, an attorney and law professor, has led several cases against encampments in cities, claiming that associated drug use, fires and criminal activity are a public nuisance to the detriment of housed residents and businesses.
In 2023, Wurman succeeded in forcing the city of Phoenix, Arizona, to clear a major downtown homeless encampment called “the Zone”—resulting in a separate lawsuit from the ACLU, defending the rights of homeless people. The city is appealing the 2023 decision. With record levels of severe heat putting people at risk, the homelessness and climate crises are colliding in cities like Phoenix.
The National Homelessness Law Center and the National Coalition for the Homeless are advancing the “Housing Not Handcuffs” campaign.
Wurman has spearheaded at least two other cases on similar grounds, in Tucson and Salt Lake City, but has lost both—and is appealing both.
Legislative and electoral battles are also ongoing. Missouri and Florida, under Republican control, have already passed state laws empowering state officials or local residents to sue cities that don’t clear encampments. And in Arizona, voters are deciding this November on a historic ballot measure to allow home and business owners to sue for tax refunds, based on purported damages related to homelessness.
Unhoused people and their allies are sure to continue the fight. To that end, the National Homelessness Law Center and the National Coalition for the Homeless are advancing the “Housing Not Handcuffs” campaign. Its goals are to push federal, state and local governments to stop criminalizing unhoused people, strengthen housing protections and end unjust evictions, and increase access to affordable housing.
Photograph by Joe Green via Flickr/Creative Commons 2.0