Attorneys and advocates for the unhoused say today’s long-awaited US Supreme Court ruling on an Oregon homelessness case sets a dangerous precedent.

The high court ruled 6-3 that cities and other government jurisdictions may punish people for sleeping outside in public spaces, regardless of whether adequate shelter is available. Friday’s ruling gives cities and states latitude to craft their own policies regulating homelessness. 

The National Homelessness Law Center characterized the case as “the most important Supreme Court case about homelessness in 40+ years.”

Shortly after the SCOTUS decision was released Friday, the Law Center called the ruling “profoundly disappointing and unjust,” and a blow to the rights of unhoused people everywhere.

“Arresting or fining people for trying to survive is expensive, counterproductive, and cruel,” says Jesse Rabinowitz, a communications director for the National Homelessness Law Center. “While we are enraged, we are not surprised that this Court has again put the needs of the rich and powerful before the needs of everyday people struggling to get by.”

The ruling is unlikely to impact Oregon much, as the state already has a law around homeless policy. The Law Center is now calling on Congress and elected leaders at all levels to craft local policies that protect the rights of the nation’s growing homeless population who are forced to sleep outside.

The landmark decision originated in Grants Pass, Oregon, after a class action lawsuit challenged the city’s ordinances, asserting the practice of fining or jailing people for sleeping outside, when they have nowhere else to go, violates the Eighth Amendment, which covers cruel and unusual punishment.

The plaintiffs won their case (Johnson v. Grants Pass) against Grants Pass, but the decision was appealed by the city. After a Ninth Circuit Court of Appeals again ruled against the city, the case escalated to the Supreme Court. 

Supreme Court justices disagreed with the premise that fees or jail time count as cruel and unusual punishment, saying cities need some kind of tool to regulate homeless camping.

Justice Neil M. Gorsuch, writing for the majority, says the eighth amendment “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.”

By contrast, Justice Sonia Sotomayor, one of the three dissenting judges, says punishing people for being homeless is “ unconscionable and unconstitutional.”

“Sleep is a biological necessity, not a crime,” Sotomayor writes, saying the court's decision "leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested."

Sotomayor notes that dismissing Eighth Amendment arguments against camping bans is unlikely to end the legal battle over homelessness ordinances. She says the Supreme Court’s decision will simply return the case, in one way or another, back to the lower courts.

But the vital element to those policies is not whether local governments choose to regulate homelessness, but rather, how they do so.

The Johnson v. Grants Pass case has reverberated through Oregon. In 2021, the state passed House Bill 3115, which required any city or county-level policies to be “objectively reasonable” with regard to the time, place, and manner of homeless camping. 

Ed Johnson, an attorney with the Oregon Law Center who litigated the Grants Pass case, says other cities crafting their own homelessness policies should look to Oregon for guidance.

Thanks to HB 3115, Oregon state law prevents local cities from making it illegal, at least for 24 hours a day, to rest outside. Johnson notes that Oregon’s law recognizes that it’s inhumane and dangerous to punish people who “use as little as a blanket to try to stay warm and dry and not die of hypothermia.”

“That is a wise policy decision. It’s going to keep people alive and allow them to move into housing more quickly, and we intend to use that law, which is more important than ever, to protect homeless people in the state of Oregon,” Johnson said during a media briefing Friday. “I would encourage other states, especially after today’s decision, to look at the wisdom of that policy decision and to pass similar laws that will help them address and end their own homeless crisis while providing basic dignity to our neighbors who’ve been forced to live outside.”

In Portland, local leaders have quibbled and stumbled over the broad interpretations of what Oregon considers “objectively reasonable.” In 2023, the city of Portland adopted its own set of policies, prohibiting public camping from 8am to 8pm each day, with a patchwork of off-limits areas. The policies were soon challenged in court by Johnson’s law firm before they could be implemented. A class-action lawsuit alleged the city’s rules were neither reasonable nor clear to the population they would impact. 

The city has now adopted a revised ordinance, set to go into effect next week on July 1, that no longer restricts the time of day someone can rest in public. But the policy stipulates that anyone violating the city’s new rules who refuses an offer of appropriate shelter could face fines and jail time.

The city’s new ordinance may have appeased attorneys, but for one city leader, the approach was too soft, and the state’s law too narrow.

In a social media post after the decision was announced, Portland Commissioner Rene Gonzalez praised the SCOTUS ruling, saying a “dark period in the west, for Oregon, for Portland has ended.” He called on Governor Tina Kotek and the state legislature to repeal HB 3115, which would allow Oregon cities, including Portland, to enforce more severe camping restrictions in alignment with the SCOTUS ruling. 

But local advocates say the city’s new ordinance and the latest SCOTUS ruling are both bad faith approaches to addressing homelessness. 

“Camping bans do not solve houselessness. The heartbreaking reality is that because of today’s decision, we can expect to see a rise in armed police arresting and fining unhoused people and more people being traumatized and injured during police interactions,” Kat Mahoney, executive director of homeless services and advocacy organization Sisters of the Road, said in a press release. 

Mahoney says Sisters of the Road will “remain steadfast in supporting strategies that address the root causes of houselessness and uplifting the experiences and humanity of our unhoused community.”

Kristle Delihanty, founder and executive director of community health and peer support organization PDX Saints Love, told the Mercury the news is disappointing, but not surprising, “based on the climate across the nation and Portland around views on poor people.”

For aid groups like Delihanty’s, Friday’s ruling has reaffirmed the need for their services.

“We recognize that protecting the right to safety of humans will belong to all of us on the ground now,” Delihanty says in a statement. “We will focus our fight on making sure that our city and county are held to providing adequate shelter and housing opportunities.”

Molly Hogan, executive director of the Portland housing advocacy nonprofit Welcome Home Coalition, told the Mercury she “definitely thinks that arresting or fining people for having to live outside… does constitute cruel and unusual punishment.”

Hogan says while she understands the city was trying to create a more humane camping ordinance, it still has harsh requirements that might penalize people unjustly.

“We’re very concerned about who gets to decide what ‘reasonable shelter’ means [in Portland’s camping ban].... Many people may refuse congregate shelter for very real reasons,” Hogan says. “How are we really addressing the root cause of homelessness, which we know is rising housing costs?”

What’s next?

The high court’s ruling isn’t the end of the legal fight, or the Johnson v. Grants Pass case. The court addressed part of the case, but not all of it. 

Johnson, the Oregon Law Center attorney, says SCOTUS only addressed the Eighth Amendment issue. Other claims, including the issue of what constitutes excessive fines, and questions about due process, will likely be remanded back to the Ninth Circuit Court. Regardless of that outcome, he says states and cities should focus on policies that provide adequate housing, rather than criminalizing homelessness.

“While this decision is disappointing, it is important to remember that the solution to America’s homelessness crisis does not rest with the Courts,” Johnson says. “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.”