With homelessness on the rise, the Supreme Court weighs bans on sleeping outdoors

The Supreme Court wrestled with major questions about the growing issue of homelessness on Monday as it considered whether cities can punish people for sleeping outside when shelter space is lacking.

The case is the most significant to come before the high court in decades on the issue and comes as record numbers of people are without a permanent place to live in the United States.

It started in the rural Oregon town of Grants Pass, which began fining people $295 for sleeping outside as the cost of housing escalated and tents sprung up in the city’s public parks. The town appealed to the high court after the San Francisco-based U.S. 9th Circuit Court of Appeals found that banning camping in places without enough shelter amounts to cruel and unusual punishment.

The justices appeared to be leaning toward a narrow ruling in the case after hearing arguments that showed the stark terms of the debate over homelessness in Western states like California, which is home to one-third of the country's homeless population.

Sleeping is a biological necessity, and people may be forced to do it outside if they can't afford housing or there's no space in shelters, Justice Sonia Sotomayor said.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?" she said.

Solving homelessness is a complicated policy question, said Justice Brett Kavanaugh, who raised questions about both the role of federal courts and camping bans. “How does it help if there are not enough beds for the number of homeless people in the jurisdiction?” he said.

Other conservative justices questioned how far Eighth Amendment legal protections should extend as cities struggle with managing homeless encampments that can be dangerous and unsanitary.

“How about if there are no public bathroom facilities, do people have an Eighth Amendment right to defecate and urinate outdoors?” said Justice Neil Gorsuch.

Other public-health laws cover that situation, Justice Department attorney Edwin Kneedler said. He said people shouldn’t be punished just for sleeping outside, but argued the 9th Circuit ruling should be tossed out because the court didn't do enough to determine if people are “involuntarily homeless.”

Gorsuch and other justices also raised the possibility that other aspects of state or federal law could help sort through the issue, potentially without setting sweeping new legal precedent.

The question is an urgent one in the West, where a cross-section of Democratic and Republican officials contend that makes it difficult for them to manage encampments.

Hundreds of advocacy groups, on the other hand, argue that allowing cities to punish people who need a place to sleep will criminalize homelessness and ultimately make the crisis worse as the cost of housing increases.

Dozens of demonstrators gathered outside the court Monday morning to advocate for more affordable housing, holding silver thermal blankets and signs like “housing not handcuffs.”

Homelessness in the United States grew a dramatic 12% last year to its highest reported level, as soaring rents and a decline in coronavirus pandemic assistance combined with a lack of access to mental health and addiction treatment to put housing out of reach for more people.

More than 650,000 people are estimated to be homeless, the most since the country began using the yearly point-in-time survey in 2007. People of color, LGBTQ+ people and seniors are disproportionately affected, advocates said.

The court is expected to decide the case by the end of June.

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Rush reported from Portland, Oregon.