Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. City of Grants Pass v. Johnson, 603 U. S. 520, 524 (2024).
I. SCOTUS Finds Against Unhoused Populations in Grants Pass v. Johnson
When the City of Grants Pass, Oregon issued ordinances criminalizing sleeping and camping in public, individuals facing homelessness in the city brought suit under the Eighth Amendment, arguing that the laws constituted cruel and unusual punishment. The District and Circuit courts found for the unhoused Plaintiffs, but this past summer the United States Supreme Court reversed those decisions and held that cities have the right to jail unhoused residents solely for the “crime” of sleeping outdoors, even if there are not enough shelter beds in the area to house them. As a result of the Court’s decision, cities around the country may now pass and enforce similar laws arresting individuals experiencing homelessness for sleeping outside, despite providing no alternative in compliance with the law.
The Court, in a majority opinion written by Justice Gorsuch, found that the history behind the Cruel and Unusual Punishment Clause of the Eighth Amendment dictates the “method or kind of punishment a government may impose for the violation of criminal statutes,” but it does not affect what behavior the government can criminalize in the first place. The Court was unconvinced by Plaintiff-Respondent’s argument that the laws at issue are impermissibly based on an involuntary status; because the acts of sleeping or camping outside include both mens rea and actus reus and apply to everyone, so they are not status based.
This holding comes at an important time in the United States. Homelessness around the country has increased at an alarming rate– 12% between 2022 and 2023. Meanwhile, the national inventory of shelter beds only increased by 7% during that same period. This leaves a large number of individuals experiencing homelessness forced to seek shelter on public lands without much hope of government shelter or assistance.
Homelessness is also an issue rooted in discrimination which disproportionately affects minorities across the United States. Black Americans are 13% of the general population, but represent 37% of Americans experiencing homelessness and more than 50% of homeless families with children.[1] One in twelve Hispanic Americans are homeless at some point in their lives. Asian Americans saw a 64% increase in homelessness in the last year. A United Nations report found that the extreme disparities in homelessness stems from systemic residential racial segregation, discrimination in housing access, societal aversion to non-normative gender and disability identities, and policies regarding criminal records that reinforce the cycle of poverty.
Grants Pass compounds the overall increase in the size of the unhoused population in recent years by putting our already-most-vulnerable in even more precarious a situation simply because they exist. Nevertheless, despite the Court’s holding in Grants Pass v. Johnson, there is hope for the protection of individuals experiencing homelessness. This article discusses how the criminalization of homelessness violates the Fourteenth Amendment’s Equal Protection Clause because anti-homeless statutes have a discriminatory impact or, in the alternative, because these laws contravene Griffin v. Illinois’ ban on poverty discrimination in criminal proceedings.
II. The Equal Protection Clause Bans Poverty Discrimination
The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall […] deny to any person within its jurisdiction the equal protection of the laws.” Equal protection analysis first asks whether the government is regulating based on classes of people. If so, the next question is whether that class is suspect, quasi-suspect, or non-suspect. If a class is suspect, the regulation must pass strict scrutiny; if it is quasi-suspect it must pass intermediate; everything else faces only rational basis review.[2]
The lowest level of scrutiny, rational basis, is extremely deferential in favor of government regulations; it only requires that the laws are rationally related to a legitimate state interest. The next level of scrutiny, just above rational basis, is intermediate. Under intermediate scrutiny, the government has the burden to show that the regulation is carefully tailored to an important governmental interest. Generally, this form of scrutiny applies to classifications based on gender, marital status, and other suspect (but not fundamental) classifications.[3]
Finally, the least government-deferential form of scrutiny is strict scrutiny. Under strict scrutiny, the burden shifts to the government to defend themselves for their regulation by proving that the government has a compelling interest for the regulation, and the action is narrowly tailored to protecting that compelling interest. The government is unlikely to succeed when strict scrutiny applies. Historically, the only classifications that qualify as “suspect,” and therefore receive strict scrutiny, are race or national origin-based regulations.[4]
1. Anti-Homeless Statutes are Subject to Strict Scrutiny Because They Have a Discriminatory Impact, but They Fail That High Bar
In Yick Wo v. Hopkins, 118 US 356 (1886), the Court found that a facially neutral law violates the Equal Protection Clause “if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” In Yick Wo, the law at issue allowed discretionary permitting to laundry businesses. The Court analyzed statistics on business ownership by race, showing that, although 89% of the local laundries were Chinese-owned, not a single Chinese-owned business was granted a permit. Thus, the law had a discriminatory impact and was required to pass strict scrutiny to be constitutional, which it did not.
The Supreme Court echoed and expanded Yick Wo’s analysis in Snowden v. Hughes, 321 U.S. 1 (1944). In Snowden, a potential candidate for state office sued the state canvassing board for violation of Equal Protection when the board arbitrarily failed to file a correct certification stating he was a nominee. The Court found that the single instance of negative impact of the law on the Plaintiff was not sufficient for an Equal Protection claim, explaining that “[t]he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.” The requisite “element of intentional or purposeful discrimination” would have been discernible through repeated over-protection of one group and under-protection of another.[5] Under Snowden, if intent/purpose is established through statistical data, then the law has a discriminatory impact and is subject to strict scrutiny.
In Washington v. Davis, 426 U.S. 229 (1976), the Court clarified that (usually) disproportionate impact is not in itself enough to require strict scrutiny without proof of discriminatory purpose. The Court went on to say that despite this rule, the systemic exclusion of Black Americans from the selection of juries was sufficient to show the requisite intent and thus require strict scrutiny without any explicit proof of intent. Washington’s caveat simply makes clear that disproportionate impact of a facially neutral law is not in itself sufficient to require strict scrutiny unless the systemic nature of the disproportionate impact is so extreme as to demonstrate discriminatory purpose.
Using the same analysis, anti-homeless statutes have a discriminatory impact, sufficient to demonstrate discriminatory purpose, as seen through systemic disparities in their application. A report from the United Nations Committee on the Elimination of Racial Discrimination found, two years prior to Grants Pass, that United States’ laws criminalizing homelessness were racially discriminatory and disproportionately affected minorities. The Committee recommended that the U.S. “abolish laws and policies that criminalize homelessness; implement strong financial and legal incentives to decriminalize homelessness, including by conditioning or withdrawing funding from state and local authorities that criminalize homelessness and encourage them to redirect funding from criminal justice responses to adequate housing and shelter programs, in particular for persons belonging to racial and ethnic minorities most affected by homelessness.”
In one Texas study following the passage of an anti-camping law in the state, Black Americans sleeping outside were over ten times more likely to be issued a citation than their white counterparts. Native Americans, Pacific Islanders, and Black individuals are arrested under vagrancy statutes at more than double their proportionate rate in the population. As in Yick Wo, and in contrast to Snowden, these facts show a systemic pattern of over-application of anti-homelessness laws to minorities sufficient to prove discriminatory impact. In conjunction, as in the example of systemically exclusionary juries in Washington, the systemic disproportionate application of anti-homeless laws to minorities provides the element of implicit intent required to bring facially neutral anti-homelessness statutes under strict scrutiny review.
Anti-homeless statutes fail when they face strict scrutiny. Strict scrutiny is historically an extremely high bar. Recently, in Students for Fair Admissions, 600 U.S. 181 (2023), the Court held that the only compelling interests which justify race-based classifications are the remedy of past, specific instances of government-enabled discrimination, and imminent risks to human safety in prisons.[6] The latter is facially inapplicable to the statutes in Grants Pass, and the former requires much more specific instances of past discrimination. More importantly, drafters of anti-homeless statutes mainly cite public safety concerns,[7] which are no longer justifiable compelling interests under strict scrutiny. For those reasons, the statute at issue in Grants Pass, and others like it, violate the Equal Protection Clause because they have a discriminatory impact and do not pass strict scrutiny.
2. In the Alternative, Anti-Homeless Laws Fail Under Griffin Because They Discriminate Based on Indigency in the Criminal Process
In Grants Pass, the Court focused on the Eighth Amendment. Griffin v. Illinois provides a workaround. There, the Supreme Court found that requiring criminal defendants to pay transcript fees before appealing their conviction violated the due process and equal protection rights of indigent defendants who could not afford the fees. Griffin exemplifies that the Equal Protection Clause protects indigent defendants from poverty discrimination in criminal proceedings.
This protection extends to charges and citations themselves, not just to the proceedings after being charged, and therefore renders anti-homeless statutes illegal. The Fourteenth Amendment applies to state lawmaking and enforcement activity prior to any charge, in addition to ensuring due process of law and equal protection generally in enforcement. By contrast, the Eighth Amendment does not apply to reasons to be charged, just what happens after, as was the holding in Grants Pass. Comparing the Eighth and Fourteenth Amendments, the language regarding timing of their application in the criminal legal cycle is clearly different:
Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In the Eighth Amendment, as the Court notes in Grants Pass, the language only refers to aspects of criminal law taking place after charges: bail, fines, and punishment. In contrast, the Fourteenth Amendment mentions only the legal process as a whole, providing a wider scope of protection. The lack of specificity as to which part of the legal process the Equal Protection Clause applies infers that it applies to all of it– referring both to criminal charges and everything that happens after the effects of the laws. This is only made clearer when the Equal Protection Clause’s silence on timing is compared to the Eighth Amendment’s specific address of parts of the legal system. Even more so, just two clauses prior to the Equal Protection Clause in the Fourteenth Amendment itself, the drafters added “make or enforce” to the Privileges and Immunities Clause– purposely including procedural markers as to when that clause applies. Again, the temporal limits in the Privileges and Immunities Clause, in comparison to the temporal silence in the Equal Protection Clause, make its application to the entire legal process clear.
For that reason, the protection provided in Griffin by the Equal Protection Clause for those in poverty differs from the protection provided by the Eighth Amendment which the Court found to be lacking in Grants Pass. The Fourteenth Amendment protects before and after an arrest, including the creation of the underlying law itself, whereas the Eighth Amendment only protects what happens after the law is enforced.
Understanding this analysis alongside Griffin, it is clear that individuals are protected from indigency discrimination in the making and enforcement of laws. Therefore, anti-homelessness laws discriminate based on indigency in the criminal process, in violation of Griffin.
III. Conclusion
The ruling in Grants Pass is broad in scope, putting the country’s homeless population, over 653,100 people, at daily risk of arrest if they live in a jurisdiction with anti-homeless laws. Municipalities in Florida, New Hampshire, Minnesota, Washington, New Mexico, Indiana, Wyoming, California, and more have also passed anti-homeless laws in the wake of Grants Pass. Kentucky’s proposed anti-homelessness bill allows property owners to use deadly force on homeless individuals on their property without any criminal consequences. Alternative paths to protection for those experiencing homelessness proposed here avoid the systemically harmful, and even deadly, consequences of anti-homeless laws.
By ensuring the right to sleep and protecting against poverty discrimination, states and the federal government can focus their efforts to combat the causes of homelessness rather than the symptoms of it. Funding can be diverted out of the prison and policing systems, and instead that money could go to schools, welfare, and other social programs that will decrease the number of US citizens experiencing homelessness. Funding social programs is an alternative to putting homeless populations in jail or fining them for money they do not have. The Eighth Amendment may not have been a successful tool to protect one of the country’s most vulnerable groups, but the Fourteenth Amendment is.
[2] See e.g. Clark v. Jeter, 486 U.S. 456, 461 (1988); Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 459 (1988); see also San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973); cf. Lyng v. Automobile Workers, 485 U.S. 360, 370 (1988).
[3] See e.g. United States v. Virginia, 518 U. S. 515, 533 (1996); Eisenstadt v. Baird, 405 U.S. 438 (1972); Zablocki v. Redhail, 434 U.S. 374, 397-403 (J. Powell concurring).
[4] See Students for Fair Admissions, Inc. v. President and Fellows of Harv. Coll., 600 U.S. 181 (2023); Loving v. Virginia, 388 U.S. 181 (1967).
[5] To illustrate this the Court wrote: “[A] familiar example is the failure of state taxing officials to assess property for taxation on a uniform standard of valuation as required by the assessment laws. It is not enough to establish a denial of equal protection that some are assessed at a higher valuation than others. The difference must be due to a purposeful discrimination, which may be evidenced, for example, by a systematic under-valuation of the property of some taxpayers and a systematic over-valuation of the property of others, so that the practical effect of the official breach of law is the same as though the discrimination were incorporated in and proclaimed by the statute.” Snowden v. Hughes, 321 U.S. 1, 9 (1944)
[6] See supra note 4 at 207.
[7] See Grants Pass at 19 (local government “power includes controlling ‘the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety.’”)
