Judges are likely to revive Oregon City’s ban on public sleeping

The U.S. Supreme Court has considered what actions cities can take to address rising homelessness, suggesting that policymakers, not courts, should be the ones to decide what is necessary.

Much of the two-and-a-half-hour discussion focused on whether laws that essentially punish individuals for sleeping audiences are based on behavior or status.

An earlier Supreme Court precedent said the Eighth Amendment’s ban on cruel and unusual punishment prohibits punishment based on a person’s status.

Justice Neil Gorsuch said the line between status and conduct is “slippery.”

Gibson Dunn partner Theane Evangelis said the law bans camping, not homelessness status. Evangelis represents Grants Pass, the rural Oregon town at the center of the case.

But Judge Ketanji Brown Jackson said the way Grants Pass is applying its law makes it seem like they are really punishing the status.

One of the laws in question prohibits sleeping in public with a blanket or other bedding. However, the city could not identify a case in which city officials applied the ban to anyone who was not homeless, said Kelsi Corkran of Georgetown Law. Corkran represents Gloria Johnson and others who have been fined for being homeless, something they have no control over.

The city does not punish stargazers, beachgoers or babies, Judge Sonia Sotomayor noted.

But several justices were concerned that there was no workable rule for distinguishing conduct versus status.

The problems with drawing lines are “endless,” Evangelis said.

For example, Judge Amy Coney Barrett wondered whether cities could ban burning or urinating in public, or whether those would also be off-limits.

Federal courts should essentially micro-manage municipalities, Justice Brett Kavanaugh said, suggesting that judges are not best positioned to make such policy decisions.

Chief Justice John Roberts agreed. He asked why anyone would think the nine justices are the best people to answer those questions.

The case is City of Grants Pass v. Johnson, USA, No. 23-175, argued 4/22/24.