With homelessness on the rise, the Supreme Court is considering a ban on outdoor sleeping

WASHINGTON — The Supreme Court grappled with big questions Monday about the growing problem of homelessness as it questioned whether cities can punish people for sleeping outside when there is no shelter.

It is the most important Supreme Court case on the issue in decades, and comes at a time when record numbers of people are left without permanent residence in the United States.

The case began in the rural town of Grants Pass, Oregon, where people were fined $295 for sleeping outdoors as housing costs escalated and tents popped up in the town’s public parks. The San Francisco-based U.S. 9th Circuit Court of Appeals struck down the law, ruling that banning camping in places without adequate shelter amounts to cruel and unusual punishment.

The justices appeared to lean toward a narrow ruling in the case after hearing arguments that showed the grim terms of the homelessness debate in Western states like California, where a third of the nation’s homeless population lives.

Sleeping is a biological necessity, and people can be forced to do it outdoors if they can’t get housing or if there isn’t space in shelters, Judge Sonia Sotomayor said.

“Where should we put them if every town, every village, every town has no compassion and passes a law identical to this one? Where should they sleep? Should they commit suicide and not sleep? she said.

Solving homelessness is a complicated issue, Judge Brett Kavanaugh said. He questioned whether paying for camping tickets will help if there aren’t enough shelter beds to hold everyone, but also expressed concerns about federal courts’ “micromanaging” policies.

Other conservative justices questioned how far the Eighth Amendment’s legal protections should extend as cities struggle to manage homeless encampments that can be dangerous and unsanitary.

“And if there are no public sanitation facilities, do people have the Eighth Amendment right to defecate and urinate outside?” said Justice Neil Gorsuch.

Other public health laws relate to this situation, said Justice Department attorney Edwin Kneedler. He argued that people shouldn’t be punished just for sleeping outside, but said the ruling striking down the Grants Pass law should be thrown out because the court didn’t do enough to determine whether people are “involuntarily homeless.”

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

The question is pressing in the West, where a cross-section of Democratic and Republican officials say the 9th Circuit’s rulings on camping bans make it difficult for them to manage camps. The appeals court has jurisdiction over nine states in the West.

Advocacy groups, on the other hand, argued that allowing cities to punish people who need a place to sleep will criminalize homelessness and ultimately worsen the crisis as the cost of housing rises.

Hundreds of protesters gathered outside the Supreme Court on Monday morning to call for more affordable housing, carrying silver thermal blankets and signs reading “housing, not handcuffs.”

Homelessness in the United States grew a dramatic 12% last year to the highest reported level, as rising rents and a decline in aid for the coronavirus pandemic combined to put housing out of reach for more people.

It is estimated that more than 650,000 people are homeless, the highest number since the country began conducting the annual point-in-time survey in 2007. Almost half of them sleep outside. Older adults, LGBTQ+ people and people of color are disproportionately affected, advocates say.

In Oregon, a lack of mental health and addiction resources has also helped fuel the crisis. The state has some of the highest rates of homelessness and drug addiction in the country, and ranks last in access to treatment, federal data shows.

The court is expected to rule on the case at the end of June.