Do homeless people have constitutional rights?

Overwhelmingly, faith groups who filed for Johnson v. Grants Pass did so against criminalizing homelessness.

Activists demonstrate at the Supreme Court as the justices consider a challenge to rulings that found punishing people for sleeping outside when shelter space is lacking amounts to unconstitutional cruel and unusual punishment, on Capitol Hill in Washington, Monday, April 22, 2024. (AP Photo/J. Scott Applewhite)

(RNS) — On April 22, the first night of Passover, the Supreme Court heard Johnson v. Grants Pass, the most significant case on homelessness in the last 40 years — and faith leaders across the country are making themselves heard.

To fully understand Johnson v. Grants Pass, we have to go back a few years to another case that nearly made it to the Supreme Court. In 2009, six unhoused people in Boise, Idaho, partnered with a legal team to sue the city over a law against camping outside. This case, Martin v. Boise, went all the way to the Ninth Circuit Court, which ruled in 2018 that it is unconstitutional to punish people who are experiencing homelessness when they have nowhere else to go. The basis for this ruling was the 8th Amendment, which protects against “cruel and unusual punishment” and “excessive fines.” The court ruled that punishing homelessness when there were no available alternatives amounted to such a violation. When Boise tried to appeal to the Supreme Court, they were denied, and so the verdict was cemented.

This ruling shifted the dynamic between municipalities and their unhoused, unsheltered population where the Ninth Circuit has jurisdiction. Cities like Los Angeles, Portland and Seattle had new (if unspecific) limitations on criminalizing homelessness until they could build enough shelter and housing to “justify” it. In the same year that Martin v. Boise was adjudicated, Johnson v. Grants Pass was filed.

Grants Pass is a smaller city in Oregon that has, in the last decade, seen a large population growth. Like so many cities across the country, housing costs went up and created a rent burden for a significant portion of the population. Homelessness grew, and the city responded; but not with services or care. They responded with $300 fines for offenses ranging from camping to possessing a blanket while sleeping in public. Similar to Martin v. Boise, a group of unhoused people partnered with a law group and sued the city and won, through multiple appeals, even to (once again) the Ninth Circuit Court.

The difference, now, is that the Supreme Court has agreed to hear Grants Pass’ appeal, and the Supreme Court of 2024 is not the same one that declined to hear Martin v. Boise in 2018.

Overwhelmingly, faith leaders and communities who filed for this case did so on the side of Johnson, against criminalizing homelessness. On April 3, dozens of amicus briefs became public in support of Johnson, with several of them coming from a faith perspective — including the Catholic Council of Bishops, Oregon Quakers, the LA Catholic Worker and the Kairos Center of Union Theological Seminary, which included support from churches and faith-based organizations around the country.

A jogger runs past a homeless encampment in the Venice Beach section of Los Angeles on June 8, 2021. (AP Photo/Marcio Jose Sanchez, File)

A jogger runs past a homeless encampment in the Venice Beach section of Los Angeles on June 8, 2021. (AP Photo/Marcio Jose Sanchez, File)

I spoke with the Rev. Liz Theoharis and Shailly Barnes, who serve as director and policy director, respectively, of the Kairos Center. Separately, I spoke with Jesse Rabinowitz, campaign and communications director for the National Homelessness Law Center. Our conversations focused on the amicus briefs, as well as the various faith intersections intrinsic to the case. For the Kairos Center’s brief, there was a strong commitment to an interfaith response. Barnes stated, “Whether it’s from the Hebrew Bible or the Old Testament or New Testament or from Islam or prayers from Hinduism we see just this widespread value of care, not punishment, not making conditions worse for people who are already suffering … and suffering in fact because of society’s limits and not their own.” Theoharis put a finer point on it: “Criminalizing, exploiting, and hurting poor and unhoused people is an affront to God and to Christianity itself, and to other religious traditions themselves.”

Jesse Rabinowitz, who himself entered this work as an extension of his faith, was similarly ecumenical: “There is a very clear alignment in the various traditions that say, ‘You can’t punish people for being poor, you have to actually work with them to address their underlying issues and then to end poverty.’”

The amicus briefs echo these core, wide-reaching and self-evident faith commitments at stake in Johnson v. Grants Pass. The brief filed by the Kairos Center says this in its conclusion:

The universal bedrock beliefs of faith traditions have affirmed for centuries that punishing poor and homeless people for the effects of their poverty and homelessness fails to honor the holy nature of creation, and thereby fails society as a whole.

The Catholic Council of Bishops communicated a similar sentiment in their brief:

The Catholic Church, consistent with western tradition, has long taught that the homeless are to be helped, not punished. It also has long taught that punishments must be proportional to the crimes for which they are imposed. Underlying both teachings is a simple principle: respect for human dignity.

The faith voice for this case is all but unanimous: the one brief that was filed in support of criminalization came from the Grants Pass Gospel Rescue Mission. 

There is only one shelter in Grants Pass — one option for people to get out of the weather and into temporary shelter — and it’s the Grants Pass Gospel Rescue Mission. While other Rescue Missions across the U.S. have abandoned policies like this, Grants Pass GRM still requires twice-daily chapel attendance, unpaid work six days per week at the mission or one of its enterprises (including a thrift store) and monthly re-evaluation as to whether or not people are complying enough and making enough progress to continue staying in the shelter. If they do stay longer than that first 30 days, they’re required to pay $100 per adult and $50 per child

In the realm of homelessness services, this is what’s known as a high-barrier shelter, and an extreme one at that. These rules for entry and continuation severely limit access to services that are essential and can be life-saving: temperatures in Grants Pass reach freezing levels in the winter, and snow and freezing rain are not uncommon.

In their Amicus Brief, they argue that the Ninth Circuit’s decision “has significantly decreased the number of people who access the Mission’s services, as the City’s inability to enforce its public camping ordinances has caused more of the City’s homeless to remain on the streets instead.” Given the choice, many unhoused people in Grants Pass seem to prefer staying on the streets than adhering to the Rescue Mission’s list of demands.

It may be well-intentioned, but GRM’s plea raises serious legal and theological questions. If the Rescue Mission — the only option in town — can shelter just 138 people, how can the government criminalize all 1,200 people experiencing homelessness in the city? Do Christian organizations have a theological mandate, or even a justification, for forcing religious programming in exchange for shelter and care? Can the government compel homeless people to stay at a shelter that has strict religious requirements without infringing further on their constitutional rights?

So many churches and faith-based organizations who interact with homelessness manage to support their unhoused neighbors without compelling them to religious adherence or erecting barriers that keep more out than in. Rabinowitz highlighted this: “It’s important to note that many churches do the work of filling in the social safety net, and the harm caused by using things like jails and tickets makes homelessness harder to solve and makes the work of those faith-based entities that are stepping in to fill the gap that much harder as well.”

Homelessness remains a daunting and complicated issue facing America’s cities and continues to escalate. 

There are many deeper questions around homelessness for us to answer as a country and as a church. Should we invest first in treatment or in housing? Is public housing better or worse than subsidizing private rentals? Are there non-traditional forms of housing worth considering? So much of my work and hope revolves around increasing our Christian literacy and buy-in on these matters, even though it’s confusing and overwhelming.

And yet, Johnson v. Grants Pass is about none of these and does nothing to address the overall homelessness and housing policy in America. It’s simply a question about one practice: criminalization, and whether or not we will allow it to operate unchecked. It’s not even a complete ban on criminalization, but a limitation on its excessiveness.

Simply, but crucially, the question at stake is whether we will allow our frustration and confusion to push us further into injustice. Will we become so overwhelmed with the issue of homelessness that we take it out on the people experiencing it rather than the issue itself? Will we tolerate cruelty or promote compassion? Will we be like the oppressors described in Isaiah 3 who “grind the faces of the poor” or like the followers of the way, who, according to Matthew 25, will learn to see Jesus in the face of the poor?

(Kevin Nye is the author of “Grace Can Lead Us Home: A Christian Call to End Homelessness.” He writes regular on the intersections of faith and homelessness on Substack. The views expressed in this commentary do not necessarily reflect those of Religion News Service.)

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