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The U.S. Supreme Court ruled Friday that the city of Grants Pass did not violate the Constitution’s prohibition against cruel and unusual punishment when, according to lower courts, it willfully drove people out of town with a coordinated system of ordinances, including prohibitions against using a blanket, pillow or cardboard box for protection from the elements.
The decision was 6-3 along ideological lines, with Justice Neil Gorsuch writing the majority opinion. He was joined by the five other conservative justices. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.
“The court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual,” the opinion reads. “The city imposes only limited fines for first-time offenders, an order temporarily barring an individual from camping in a public park for repeat offenders, and a maximum sentence of 30 days in jail for those who later violate an order. Such punishments do not qualify as cruel.”
The decision overturns Martin v. Boise, a 2018 ruling by the federal Court of Appeals for the 9th Circuit, which held that the Eighth Amendment’s cruel and unusual punishments clause bars cities from enforcing public camping ordinances like the ones enacted in Grants Pass whenever the number of homeless people in a jurisdiction exceeds the number of “practically available” shelter beds.
Today’s Supreme Court decision means that cities can enact camping bans even when shelter space is unavailable. The decision applies only to Western states within the 9th Circuit. Other jurisdictions were free to put in place camping restrictions prohibited by the Boise decision.
The case began in 2018, when the Oregon Law Center filed a lawsuit against Grants Pass on behalf of three individuals as representatives of all the homeless people in town. A year later, a district court in Medford certified the unhoused people as a class. In 2020, the same court ruled that because people who had been forced to live outside in Grants Pass had no place else to go, its camping and sleeping ordinances constituted cruel and unusual punishment. In 2022, a panel of the 9th Circuit Court of Appeals concurred.
“We are disappointed that a majority of the court has decided that our constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” said Ed Johnson, director of litigation at the Oregon Law Center and lead counsel in the Supreme Court case. “If cities and states continue to pursue a policing and punishment approach to people forced to live outside, it will drastically increase homelessness and cause unnecessary and unfathomable human suffering.”
While it makes headlines around the country, the Supreme Court’s opinion is unlikely to change the way Oregon cities like Portland deal with homelessness in any seismic way because of a 2021 state law that codified the the Boise decision.
“Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness,” the law says.
Portland Mayor Ted Wheeler said the law, created by House Bill 3115, would govern Portland’s housing policy.
“The Supreme Court decision will have little or no impact to Portland because state law (HB 3115) continues to control and limit what Oregon cities can and can’t do,” Wheeler said in a statement. “The city is still required to follow state law that is on the books.”
Wheeler left open the opportunity for more action on homelessness in the state Legislature.
“The city of Portland supports a robust legislative discussion on this topic, and we hope the Legislature will see this opportunity to consider the tools cities truly need to manage public camping, provide sufficient shelter, and keep our streets safe and clean,” Wheeler said. Portland will begin enforcing its camping ordinance July 1, tackling “campsites that pose the largest health and safety risks,” he said.
City Commissioner Rene Gonzalez, a candidate for mayor, took a much harder line, saying that HB 3115 should be repealed.
“A dark period in the West, for Oregon, for Portland has ended,” Gonzalez wrote on X, formerly Twitter. “The Supreme Court has overruled the 9th Circuit in Grants Pass v. Johnson. It is time for Governor Kotek and the Oregon State Legislature to correct or repeal HB 3115.”
Commissioner Carmen Rubio, also running for mayor, hewed closer to Wheeler’s view.
“This U.S. Supreme Court decision will have little or no impact on Portland because state law continues to control and limit what Oregon cities can and cannot do,” Rubio said in a statement. “The city is still required to follow state law that is on the books. I voted for the most recent camping ordinance because it strikes the right balance between humanity and accountability. We all want structures and rules to be in place that ensure everyone can use public spaces safely—no matter where you live or sleep.
Gov. Tina Kotek, who sponsored HB 3115 when she was in the state Legislature, said her office was “reviewing” the Supreme Court’s decision.
“I have supported cities to pass reasonable time, place and manner ordinances, and there are many communities across Oregon that have appropriately responded,” Kotek said in a statement. “My focus will continue to be on supporting Oregonians moving into housing and connecting them with the services they need to prevent homelessness.”
In states beyond Oregon that don’t have so-called time, place and manner laws, the Supreme Court’s ruling could lead to tougher restrictions on homelessness, said Jesse Rabinowitz, spokesman for the National Homelessness Law Center.
“Cities are now even more empowered to neglect proven housing-based solutions and to arrest or find those with no choice but to sleep outside,” Rabinowitz said. “The Supreme Court had the opportunity to use their immense power to make sure that there’s a minimum bar for how we treat our neighbors forced to live outside, and they failed to protect their rights.”