M. Jan Holton—
The recent Supreme Court ruling in Grants Pass v. Johnson determines that the rights for persons without home to sleep in public without fine or arrest, even if there is no shelter available, is not protected under the Eighth Amendment.1 In other words, fines and imprisonment are not “cruel and usual punishment.” While I am not a legal expert and the full details of this ruling far exceed the limits of these brief comments, it is crucial that all Americans not overlook the ways that this ruling: creates practical dangers for the homeless, perpetuates unjust laws used to oppress the poor, and enhances spiritual loss by furthering the relational divide between those with a home and those without.
In his majority opinion, Justice Gorsuch, states that fines levied against the homeless in Grants Pass are “limited” for first offenses and are not cruel because they are not designed to create “terror, pain, or disgrace.” For reference, the fines are initially $294 rising to $537 if unpaid, which they are likely to be. Should one violate an order barring one from sleeping in an open area, they can then be subject to 30 days in jail and an additional fine of $1250. While indeed limited, these sums are far above anything to which a person without a job and home is likely to have access, making this a particularly unfathomable ruling. Persons living on the street who are removed or arrested risk losing everything of value when their belongings are cleared away, including important documents that are very difficult to replace. Evidence is slim that Justice Gorsuch and his majority ruling colleagues have any empathy, compassion, or appreciation for the magnitude of harm these fines and/or imprisonment would have on someone who is homeless. In her dissent, Justice Sotomayor summed up the issue differently by stating: “Sleep is a biological necessity, not a crime…for people with no access to shelter, [jail terms or fines] punishes them for being homeless. That is unconscionable and unconstitutional.”2
This ruling codifies the long ongoing efforts of Grants Pass, Oregon, and those of other cities across the country, to criminalize homelessness. Ever since vagrancy laws were deemed unconstitutional by the Supreme Court in 1983, municipalities have set about to criminalize homelessness by any means possible in the hope of deterring undesirables or removing them if deterrence fails. Justice Sotomayor provides important context to this particular lawsuit by including in her dissent historical information about Grants Pass and its relationship with the homeless community. Notes from a 2013 public City Council meeting reveal the ongoing efforts to eradicate the homeless “problem.” Sotomayor writes: “The council president summed up the goal succinctly: ‘“[T]he point is to make it uncomfortable enough for [homeless people] in our city so they move on down the road.” Contrary to Justice Gorsuch’s opinion, then, the law was indeed created to inflict pain and disgrace for individuals who are homeless such that they would want to leave town. This is a shameful goal that reveals nothing short of the failure of this community’s, and this country’s, moral obligation to care for the most vulnerable among us, which every major religion, and many secular beliefs, hold as a mandate.
In effect, the Supreme Court has now lowered the bar on what warrants police action against the homeless, a disproportionate number of whom are Black men and other persons of color who are arguably already at a greater risk of police violence and incarceration. Incarcerating the mentally and physically vulnerable in already overcrowded jails increases both their suffering and the danger. This ruling is further evidence that what may be legal, is not always just. It is practically and morally tragic not only for the homeless community but ultimately for us all.
Among this country’s 600,000 people who lack stable overnight shelter include the children in our classrooms, co-workers in the next cubicle, LGBTQ+ youth, families sleeping in their cars, those with chronic illnesses who can no longer afford rent or a mortgage. An alternative response could be to increase affordable housing, increase the minimum wage to a living wage or increase mental health services for veterans and others in need, all of which have been argued for decades. But, so long as we see our most vulnerable citizens living on the streets, in cars, and shelters as problems to be solved rather than neighbors who deserve love, care, and justice, we will condemn ourselves to an ever- expanding world of “us and them”. Beware of the hubris in thinking “it can’t happen to me or my loved one,” because the line between us and them is shockingly thin. As anyone who has lost their home in medical bankruptcy or had a loved one fall ill with addiction that leaves them living on the streets will tell you, it can happen in the blink of an eye.
A New York Times article describes some of the ways cities across the country have spent the weeks since the ruling revising local ordinances and devising plans to remove the homeless from their streets. Some communities are working with local non-profits to assist those without home who will be cleared from the streets. Elsewhere city leaders are “warming up the bulldozers” or making plans to “clear them [the homeless] all.”3 In Grants Pass, itself, which is still under an injunction, citizens are frustrated that action has not already been taken. At a recent town meeting citizens shouted, “Get them out!” and “Give us our town back!”. Us and them. It is this type of spiritual and moral abandon that escalates homelessness to placelessness.
As I have written elsewhere, the embedded social conditions, including unjust rulings such as this, that causes society to fail in our relationship to those most in need, those without home, “can cloud human perception and compromise human ability to participate in God’s gifts of love, grace, and redemption” thus diminishing the possibility of flourishing us all.4
- City of Grants Pass, Oregon v. Johnson et al., On behalf of themselves and all other similarly situated. Supreme Court of the United States. June 28, 2024. ↩︎
- Grants Pass v. Johnson, Justice S. Sotomayor, Dissenting Opinion. ↩︎
- Shawn Hubler and Mike Baker, “After Homelessness Ruling, Cities Weigh Whether to Clear Encampments”, New York Times, July 14, 2024. https://www.nytimes.com/2024/07/13/us/homeless-camps-supreme-court-ruling.html ↩︎
- M. Jan Holton, Longing for Home: Forced Displacement and Postures of Hospitality, Yale Press, 2016. p138. ↩︎
M. Jan Holton is Associate Professor of the Practice of Pastoral Theology and Care at Duke University Divinity School. She is the author of Longing for Home: Forced Displacement and Postures of Hospitality, Building the Resilient Community: Lessons from the Lost Boys of Sudan, and Reframing Trauma: A Psychospiritual Theory and Theology (forthcoming).