During the 2023-2024 Supreme Court cycle, amid a docket full of other high profile court cases, like Loper Bright v. Raimondo and Trump v. United States, a ruling that should’ve been reported on in the news slipped through the cracks: City of Grants Pass v. Johnson. The court’s ruling in Johnson allowed for the criminalization of conduct, such as sleeping outside on the street, as long as it didn’t criminalize a status, like being homeless. But what the court failed to reconcile in their decision was that, in this case, status cannot be separated from conduct.
Background
The case of Johnson originated in the small Oregon town of Grants Pass. With around 38,000 residents but around 1.5% of the population being categorized as homeless, around 7.5 times the national average of 0.19%, the town was tasked with tackling the growing problem of homeless encampments. To do so, Grants Pass implemented a municipal code which prohibited sleeping “on public sidewalks, streets, or alleyways” or using any form of bedding or fire “for the purpose of maintaining a temporary place to live,” and in doing so aimed to decrease the homeless population in town.
However an injunction was placed on Grants Pass preventing them from enforcing the law based on the ruling from a 2019 case Ninth Circuit Court of Appeals case, Martin v. Boise. The court held that a Boise law which also prosecuted people for “sleeping outside on public property when those people have no home or other shelter to go to” was unconstitutional under the Eighth Amendment, as the implementation of anti-camping and anti-sleeping legislation was classified as cruel and unusual punishment if there were not enough beds in shelters for people to turn to.
While the cruel and unusual punishment clause of the 8th amendment is traditionally only used against the punishment of a crime, the Court of Appeals was applying the precedent set in Robinson v. California, which outlawed making a “status,” in this case being a drug addict, illegal, but allows for “conduct” (ex: consuming or buying illicit drugs) to be criminalized under the 8th amendment.
Argument
In the case at hand, Johnson (2024), the court incorrectly overturned Martin (2018), the case which lower courts used as precedent for the Grants Pass issue, based on a misinterpretation of the ruling made in Robinson (1962), a case which ruled that conduct can be criminalized. Additionally, the court does not look at the relevant case of Lawrence v. Texas (2003), which ruled that laws targeting conduct closely linked to a person’s status—in that case, same-sex intimacy—were unconstitutional, which further supports the conclusion that the Grants Pass municipal code was targeting the status of being homeless, and is thus unconstitutional.
In Robinson the court was tasked with determining whether a law prohibiting someone from being addicted to the use of narcotics was unconstitutional. Because the law was specifically targeting the status of being an addict, not the conduct of buying, selling, or consuming illicit substances, the court held that it was cruel and unusual punishment and the law was therefore stricken under the 8th amendment. Importantly, what became the crux of the majority’s argument was the stipulation in Robinson that the legislature can still criminalize conduct even if it is involuntary. In Robinson, this meant that the courts could criminalize the conduct of buying drugs even though, for a drug addict, this action may be considered compulsory or involuntary behavior because buying illegal substances (conduct) and being an addict (status) are not one in the same. Notably, in the majority opinion for Johnson, Gorsuch references the voluntary nature of homelessness writing about the various “reasons why the unsheltered sometimes reject offers of assistance.” Regardless of voluntary or involuntary behavior, the question in Johnson, is whether the wording of the original Grant’s Pass municipal code was targeting the conduct or the status of being homeless.
The law prohibits “[c]amping” on public property” where camping is defined as “set[ting] up . . . or remain[ing] in or at a campsite,” and a campsite is “any place where bedding, sleeping bag[s], or other material used for bedding purposes, or any stove or fire is placed . . . for the purpose of maintaining a temporary place to live.” The wording of the law, while targeting an action, explicitly singles out the very activities that define the status of being homeless. In the law’s practical application in the town of Grant’s Pass, where there are not enough beds in homeless shelters for the unhoused population, whenever the law is enforced a homeless individual has no other option to avoid continuous prosecution, as they realistically have no other place to sleep and must set up a “campsite,” indicating the direct tie between the conduct being targeted and the status of being homeless. In Grants Pass, one cannot have the status of being homeless without violating the law, because there are no available alternatives that allow for an individual to stop being homeless. By the rationale expressed in the majority opinion, a law that targets the status of being a runner would be unconstitutional, but a law that targets the conduct of going on runs is constitutional. This is where the majority’s rationale fails. Criminalizing everything that characterizes being homeless, not having access to shelter and sleeping outside, is essentially substituting the word “homeless” itself for its definition.
While it could be argued that this stance is far too extreme, and would imply that the law could be applied equally to any individual “camping,” in its practical application in Grants Pass this was not the case. As noted in the dissenting opinion despite the law in theory being applicable to anyone (ie: a homeless person or simply “a backpacker on vacation passing through town”) this was not the case and “the deputy chief of police operations acknowledged that he was not aware of ‘any non-homeless person ever getting a ticket for illegal camping in Grants Pass.’” While the wording of the law may appear applicable to anyone who camps on public property, the intent and the subsequent prosecution, or lack thereof by Grants Pass police, was clearly meant to target the homeless population, and further demonstrates how the municipal code was simply attempting to strategically substitute conduct for status, but in this case how the two are so intertwined they cannot be separated.
The majority attempts to use the ruling made in Powell v. Texas as precedent for their argument, however Powell is distinguishable from Johnson. Powell was looking at a Texas law which made getting drunk or being “found in a state of intoxication in any public place” a crime. In the case, the plaintiff, Powell, claimed that being drunk was an involuntary byproduct of his status as an alcoholic. However, unlike how being unhoused and sleeping outside is the direct definition of being homeless, being intoxicated and getting “drunk” or being “[intoxicated] in any public place” is not by definition what makes one an alcoholic. One can be an alcoholic and not consume alcohol at all by definition: while it may be difficult, someone can be sober and still be an alcoholic, meaning the law in Powell appropriately targeted conduct, not status, so is therefore not applicable as precedent for Johnson. Even with the existence of homeless shelters, one cannot be homeless and not automatically violate the law because the homeless shelters were established as an unviable option for those in the town. Even still, if a homeless person sleeps in a homeless shelter for one night, they may not violate the law that night, but they still have the long-term status of being homeless until they find permanent housing. While some may argue that the interpretations made by lower courts in Grants Pass creates an issue for lawmakers, putting them into a bind where the law cannot criminalize conduct, Powell demonstrates how this is not the case as long as conduct is not inextricably linked to status, making it unconstitutional.
There is applicable precedent set in the case of Lawrence v. Texas, which asked whether Texas’ “Homosexual Conduct” law, which prohibited sexual intimacy by same-sex couples, violated the 14th amendment. While the case was dealing with the 14th amendment, there is still notable discussion around status versus conduct. In this case, the question was whether the law discriminated against homosexual conduct or against the status of being homosexual. Justice Kennedy in the majority opinion wrote that “while it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.” Applying this logic to Johnson, even if one were to try and claim that the law targeted the conduct of sleeping outside, the conduct of sleeping outside is “so closely correlated” to being homeless, as previously stated because sleeping outside defines being homeless, that it is directed at the class of homeless people. While it is true that Lawrence was examining a right based on an identity covered by the Equal Protection Act, the fundamental argumentation from Lawrence can still be applied to the Johnson issue, as it does not rely upon the status being a protected class, but rather a lack of choice in one’s conduct tied to a status. The concept that when conduct is so closely tied to status, using sodomy and homosexual conduct as an example, then any law targeting conduct is thereby targeting status is still applicable to Johnson, despite homelessness not being a protected class. There are instances where conduct inherent to a status is regulable. For example, the law regulates the conduct of practicing the law, which is inherent to the status of being a practicing attorney. In this instance, the law ought to regulate conduct that is intrinsic to a status, but this is differentiable from homelessness, as homelessness is not a choice like practicing the law is. Given the lack of public housing in Grants Pass, homeless individuals had no choice but to engage in the conduct of sleeping outdoors. So, under the logic of Lawrence, Johnson is yet again unconstitutional.
Regrettably, legislators are faced with a difficult task trying to balance the rights of the unhoused and the safety of larger communities. However, contrary to the opinion the court came to, the approach Grants Pass took was not only unjust but unconstitutional under past precedence.
Conclusion
The law is not an abstract practice that exists in white buildings with mahogany benches that educated officials in black robes sit behind. The ruling in Johnson affects the 650,000 homeless people in America and puts their livelihood in jeopardy.
Homeless people are not the only vulnerable group that this ruling is troublesome for, though. Johnson was just another instance of the court repealing laws that exist to protect people’s right and claiming that states “are not bound to adopt” laws that criminalize behavior. Johnson serve as a reminder to be aware of the cases on the court’s docket and the rulings made. The Supreme Court is the final say in the Judicial system and cases influential to disadvantaged groups like Johnson can’t ‘slip through the cracks.’