Supreme Court airs concerns over Oregon city's homelessness law

Justices Brett M. Kavanaugh and Neil M. Gorsuch asked if the Supreme Court — rather than strike down the rule as unconstitutional — could allow any people charged under the law to be able to avoid punishment by arguing they had no other choice but to sleep outside.

Justice Elena Kagan and other justices on the liberal wing of the court questioned whether that would criminalize being homeless, since the statute effectively targeted a biological function of sleep.

“For a homeless person who has no place to go, sleeping in public is kind of like breathing in public,” Kagan said.

Justice Sonia Sotomayor pointed out that upholding the local law would allow municipalities across the country to take the same steps.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this,” Sotomayor said. “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

Theane D. Evangelis, the attorney defending the statute, said that upholding the 9th Circuit ruling would make it more difficult for cities in a broad swath of the country to fight homelessness.

“The city’s hands will be tied. It will be forced to surrender its public spaces as it has been,” Evangelis said.

The Biden administration urged the justices to send the case back to the lower court over issues surrounding the certification, but also argued against the Grants Pass law.

Deputy Solicitor General Edwin Kneedler said the statute effectively banned homeless people from the city by banning them from “something everyone has to engage in to be alive.”

“So if you can’t sleep, you can’t live, and therefore by prohibiting sleeping, the city is basically saying you cannot live in Grants Pass,” Kneedler said.

Roberts and Justice Samuel A. Alito, Jr., were among the justices who questioned how the court should consider whether a locality can punish someone for homelessness — a condition that can change day by day.

Kelsi Corkran, attorney for the homeless plaintiffs challenging the law, pointed out the city still has tools that can address homelessness without punishing the homeless people who have nowhere else to go. It could still enforce littering and other laws, clear encampments and encourage people to use shelters.

“The only tool the city wants that it doesn’t have is authority to impose a 24/7 citywide sleeping ban that forces its homeless residents to either move to another jurisdiction or face endless punishment,” Corkran said.