The Supreme Court appears to favor the city of Oregon in dispute over the homeless camping ban

(WASHINGTON) – A majority of Supreme Court justices appeared sympathetic Monday to an Oregon city, making it a crime for anyone without a permanent residence to sleep outdoors in an effort to crack down on homeless encampments on public lands.

The case, City of Grants Pass v. Johnson, raises enormous stakes across the country as communities face growing numbers of unhoused residents and increasingly turn to punitive measures to incentivize people to take advantage of social services and other lodging options.

“These generally applicable laws prohibit specific conduct and are essential to public health and safety,” City Attorney Theane Evangelis argued during oral arguments that lasted more than two and a half hours.

The Ninth Circuit Court of Appeals said in a ruling last year that a homeless camping ban amounts to “cruel and unusual punishment” under the 8th Amendment. But several members of the Supreme Court’s conservative majority were critical of this conclusion.

“Have we ever applied the Eighth Amendment to civil penalties?” asked a skeptical judge Clarence Thomas.

Judge Amy Coney Barrett worried about where to draw the line, wondering aloud whether the Eighth Amendment could reasonably be invoked to prohibit punishment for hungry people who steal food or engage in other behaviors necessary for survival .

“How do we draw these difficult lines about, you know, public urination and things like that?” she said.

Many seemed to reject claims that the Grants Pass ordinance and others like it criminalize someone based on their experience of involuntary homelessness, rather than concrete action. Supreme Court precedent has said it is unconstitutional to punish someone for a relatively unchangeable quality, such as drug addiction.

“What if the person finds that person in a homeless state because of past choices or refusal to make future life choices?” asked Justice Samuel Alito.

Some conservative justices, while empathetic to the plight of the homeless, suggested that local officials — not courts — are best positioned to tackle the complicated issue of homelessness.

“This is a serious policy problem,” said Chief Justice John Roberts, “and it is a policy problem because the solution is obviously to build shelters to shelter those who are otherwise harmless. But municipalities have competing priorities… Why would you think these nine people are the best people to judge and weigh those policy judgments?”

The court’s three liberal justices—in apparent conflict with the majority of justices—strongly defended the rights of homeless people to camp in public places, likening the Grants Pass law to cruelly punishing someone’s basic needs.

“Sleep is a biological necessity,” Justice Elena Kagan noted. “Presumably you wouldn’t be okay with criminalizing breathing in public.”

“Sleeping is universal, that is a basic function,” Judge Ketanji Brown Jackson echoed. “What I don’t understand is why this particular state in these circumstances is considered ‘conduct’ for the purposes of punishment.”

“Where should we put them if every town, every village, every town has no compassion and passes a law identical to this one?” asked Judge Sonia Sotomayor. ‘Where should they sleep? Should they commit suicide while not sleeping?

Supporters of the law say many people who have camped in city parks have chosen not to take an available bed at the city’s Gospel Rescue Mission — a private shelter within city limits — which is only half full but requires residents to they attend worship services, set up pets and promise not to smoke or drink.

The lead plaintiff in the case refused a shelter bed because she wanted to stay outside with her dog. Grants Pass has no public shelters for the homeless.

Chief Roberts asked whether the shelter capacity of a nearby city, or someone’s decision to turn down a bed, should be taken into account.

“Let’s say there are five towns around Grants Pass and they all have homeless shelters, and yet the person wants to stay (in the camp)?” Roberts asked. “Can that person get a citation?”

Judge Alito questioned the feasibility of determining the number of available beds before issuing a citation to a person sleeping in a park, suggesting that the lower court’s decision created an unworkable situation for law enforcement.

“What should an individual police officer do?” he asked. “Count the number of people getting ready to sleep outside for the night, and then ask each of them if you have tried to find a bed in a shelter?”

Judge Neil Gorsuch examined the limits of the constitutional argument against the Oregon city’s ordinance, wondering whether there might be a right to defecate and urinate in public when bathrooms are not available for the homeless.

Key to the argument is whether Grants Pass treats homelessness as a “status.” Doing so could run afoul of a 1962 case, Robinson v. California, which held that it violated the Eighth Amendment to make drug addiction as a “status” illegal.

“Homelessness is not something you do. It’s just something that you are,” argued attorney Kelsi Corkran, who represented the homeless plaintiffs.

Defenders of the Oregon law say the ordinance only criminalizes the conduct of camping in public, not the fact that the camper does not have a home. They also argue that the state is allowing a “necessity” defense, which those accused of violating the city ordinance could pursue if they could show they really had nowhere else to go.

The Biden administration is asking the court to remand the case for further evidence before making a final ruling.

A decision is expected at the end of June.

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