Court watchers, critics and constitutional scholars found plenty to dislike in a scattering of rulings issued by the Supreme Court as the justices adjourned for the summer.
Environmentalists were dismayed on June 28 by a ruling that overturned what, over decades, had become standard operating procedure among federal regulators in efforts to contain corporate ecological abuses. And a decision on presidential immunity that seemed to open up new vistas for executive mischief on July 1 alarmed many constitutional scholars. But for advocates and service providers for homeless people, one Supreme Court decision was especially startling.
On June 28 the court sided with the city of Grants Pass, Ore., rejecting by a 6-3 vote a claim that a municipal ordinance violated the Eighth Amendment’s prohibition of cruel and unusual punishment for people who are experiencing homelessness. The city had outlawed “public camping” within city limits, a commonplace reality for people across the country who cannot find any other form of shelter.
Writing for the majority, Justice Neil Gorsuch said homelessness is “complex” and so is policy meant to address it. The Eighth Amendment, he argued, cannot be used by “federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”
In a dissenting opinion, Justice Sonia Sotomayor said that “the Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused…. This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular.”
The ruling that will allow Grants Pass and other cities to clear out car sleepers or the homeless encampments that have become familiar parts of many U.S. metroscapes was quickly deplored by the U.S. Conference of Catholic Bishops. “Policies that criminalize homelessness are a direct contradiction of our call to shelter those experiencing homelessness and care for those in need,” said Archbishop Borys Gudziak of the Ukrainian Catholic Archeparchy of Philadelphia and chair of the U.S. bishops’ Committee on Domestic Justice and Human Development. “Having to sleep in public with a blanket is the definition of being homeless. Ticketing and arresting people for it is a counterproductive approach to the problem of homelessness.”
The ruling was similarly condemned by the National Low Income Housing Coalition. “This cruel, misguided ruling will only worsen homelessness,” Diane Yentel, the coalition’s chief executive, said in a press statement. “It gives cover to elected officials who choose political expediency over real solutions by merely moving unhoused people out of public view rather than working to solve their homelessness.”
Ms. Yentel called attempts to use the criminal justice system to counter homelessness “ineffective and inhumane tactics [that] exacerbate homelessness by saddling unhoused people with debt they can’t pay, while further isolating them from the services and support they need to become stably housed.”
“To truly address and solve homelessness,” she said, “policymakers must instead work with urgency to scale up proven solutions, starting with greater investments in affordable housing and supportive services.”
But some municipal leaders who have struggled to balance the challenge of ending homelessness with the demands of public safety and access appreciated the broadened latitude for response suggested by the ruling. San Francisco authorities have notably struggled to contend with a growing number of homeless encampments on city streets and alleys. The city’s mayor London N. Breed appeared gratified by the court’s ruling.
“We will continue to lead with services,” she said, “but we also can’t continue to allow people to do what they want on the streets of San Francisco, especially when we have a place for them to go.”
The nation’s inadequate approach to mental health and addiction treatment no doubt contributes to the growing numbers of homeless encountered across the country from small towns to big cities. Indeed the causes of homelessness are complex, as Justice Gorsuch acknowledged, but the rising cost of housing is naturally a major contributor to the problem.
An annual headcount conducted in December by the Department of Housing and Urban Development found that homelessness in the United States was up 12 percent in 2023, spiking to the highest level ever recorded as soaring rents and a decline in Covid-19 pandemic assistance combined to put housing out of reach for more than 653,000 people. The latest survey indicates that people becoming homeless for the first time were behind much of the increase in 2023, when homelessness among families reversed a decline that had begun in 2012.
While many homeless find temporary refuge in city shelters or on a relative’s couch, about 40 percent of the people in the United States without housing “were unsheltered, that is, staying in a place not meant for human habitation,” HUD reports, making them the most likely targets for the kinds of enforcement policies approved by the court.
Why are people homeless? In addition to the dislocation engendered by the cut-off of pandemic-era supports, macroeconomic trends have not been kind to low-income Americans. The Joint Center for Housing Studies of Harvard University reports that in 1960, approximately 25 percent of renters were “cost burdened,” meaning they spent more than 30 percent of their income on rent. That share now represents approximately 50 percent of all renters.
“The wide gap between wage growth and rents is partially to blame,” according to a report from the National Institute of Building Sciences. “Between 1960 and 2021, real incomes grew by 15% among renters, while rents increased by 70% during that same period.”
The folks at the National Low Income Housing Coalition turn to Occam’s razor to explain the persistence of homelessness. According to the coalition, the primary causes remain the inability to afford housing and a severe shortage of affordable homes. The coalition reports a national shortage of 7.3 million homes affordable to families at the lowest incomes.
More than 10 million households direct over 50 percent of their monthly income to lodging. “They are always one financial shock away from falling behind on rent and facing eviction and, in the worst cases, homelessness,” the coalition says.
Home prices in 2024 have continued a sharp assent that began during the pandemic. In December, the national realtor group Redfin reported that just 16 percent of homes for sale in 2023 were affordable for the typical U.S. household—the lowest share on record—down from 21 percent in 2022 and 45 percent in 2020.
And rents are no better. The N.L.I.H.C. reports that there is not a single state, metro area or county in the United States where a full-time worker earning the federal minimum wage or the prevailing state or local minimum wage can afford a modest two-bedroom rental home at a fair market rent. But affordability is not just a problem for minimum wage earners.
According to the coalition, the average hourly wage earned by renters is a little more than $23 in 2024. That would be about $9 less an hour than what they would need to afford a two-bedroom apartment and about $4 less an hour for a one-bedroom unit.
“In 49 states,” the coalition reports, “full time workers earning the average hourly wage for renters in their state earn less than their state’s two-bedroom Housing Wage.”
If all parties agree that criminalizing homelessness is a repugnant option, then how best to respond? Getting back to Occam’s razor: Wages have to be raised or housing costs lowered or some combination of the two. More affordable units have to be constructed. Mental health treatment capacity and outreach have to be improved, and more serious attention to the drug epidemic has to be paid. There may be some relief from the Biden administration, which has embarked on a housing program it claims will lead to the construction of two million affordable units.
Advocates say they know how to tackle the problem of homelessness and could do more if given the appropriate resources. They have learned that a “housing first” approach has proved significantly more effective than addressing addiction and mental illness before attempting to get people off the streets. Some municipalities have had great success tackling homelessness by simply giving unhoused people a guaranteed income and allowing them to find their own lodging and pathways to treatment or job skills development.
In Denver, a one-year basic-income project found that about half of the participants—people who had been living on the streets, in shelters, cars or on a friend’s couch—had transitioned into a house or apartment that they rented or owned by the study’s 10-month check-in point. Researchers say just handing homeless people a dependable monthly stipend helped those transitions happen. They report that in the end, Denver saved almost $600,000 for public services, like “ambulance rides, visits to hospital emergency departments, jail stays and shelter nights,” that the city did not have to provide.
Of course simply giving money to the poor to help them, well, be less poor has proved something of a nonstarter in the United States, a nation that seems more at ease with punitive measures than restorative interventions. But in his statement deploring the Supreme Court’s call on homeless encampments in Oregon, Archbishop Gudziak recalled the demands of mercy and a collective responsibility to protect human dignity.
“This decision fails to affirm the inherent dignity of a person, which is properly recognized by the constitution,” he said. “Instead of punishing the most vulnerable among us, government should help provide shelter and economic and social programs that uphold and enhance the dignity of homeless persons. Such action would offer real opportunities for a better life and to remedy the deeper causes of homelessness.”
In an amicus brief entered by the conference, U.S. bishops argued that the idea that it is wrong to punish homeless people “merely because they lack shelter” has long been “central to western tradition and Catholic teaching.” The bishops pointed out that the criminalization of homelessness has been rejected for centuries, even “at the time that the Constitution and the Bill of Rights were adopted.”
“To take only one example, the Catholic catechism in use at the time of the Founding (the ‘Carroll Catechism’) called on individuals, as a fundamental duty, to ‘harbour the harbourless’—to provide shelter for the homeless. That is a far cry from criminal sanctions for the crime of lacking a home, of being ‘harbourless.’”
In their brief, the bishops also shared some thoughts from Pope Francis on contemporary homelessness:
“The Son of God came into this world as a homeless person. The Son of God knew what it was to start life without a roof over his head…. I can imagine Joseph, with his wife, about to have a child, with no shelter, no home, no place to stay. ... And those of us who have a home, a roof over our heads, would ... do well to ask: Why do these, our brothers and sisters, have no place to live? Why are these brothers and sisters of ours homeless?”
Advocacy for the three Ts, “Tierra, techo, trabajo,” has been a consistent theme of this papacy. You can loosely translate the pope’s three Ts into English as the three Ls for “land, lodging, labor.”
That makes a nice easy slogan to remember for the Catholic members of the U.S. Supreme Court.
