Checkpoint: Arguments Over Homelessness Get Absurd

Kristyna Wentz-Graff/OPB

A case currently pending before the Supreme Court, Grants Pass v. Johnson, has the potential to shape policy toward the homeless for decades to come. Specifically, this case concerns whether or not the city can constitutionally punish people for sleeping with a blanket while being homeless, or make similar laws banning people from performing basic functions like sleeping in public space. In the case attorney Kelsi Corkran, arguing for Gloria Johnson, cut to the core of the issue, calling out the distinction at issue in the case as a purely semantic argument.

At oral arguments both the justices and counsel for both sides spent considerable time discussing whether the law in question, which has enacted several anti-encampments that ban sleeping in public spaces under certain conditions, qualifies as punishing someone for the “status” of being homeless. The reason for this is that precedent holds that you cannot punish someone for a status, such as being addicted --- only for actions.

The problem with this, as Ms. Corkran highlights in her arguments, is that the courts are not determining whether these rules are cruel and unusual, just, or good policy, only whether they concern themselves with a “status.”
The only question under Robinson is whether there's any meaningful difference between a law that says being homeless is punishable and a law that says being homeless while breathing or sleeping or blinking is Punishable,” Ms. Corkran says.

Chief Justice Roberts even groans about this part of the case in the oral arguments, raising the question of why it is the semantics of what status decides policy towards the homeless in America. 

Ms. Corkran continues to say that when you combine the definitions of homelessness with the condition of being human, homeless people are necessarily going to be sleeping outside, especially in a palace like Grants Pass, which does not have enough beds to house their homeless population.

In my opinion, this argument gets to the absurdity of the situation. Who cares if being homeless is a status? Who would even argue that, under a common understanding of the words, homelessness isn’t a status someone can occupy? Ms. Corkran is right to highlight that the argument on the issue is purely semantic. Whether homelessness is a status or not it doesn’t change the facts on the ground.

Ms. Corkran’s argumentation also sang when she pointed out that the remedy to the situation, in the view of Grants Pass, is to simply fine and jail the unhoused until they eventually skip town and go to a different place with less draconian laws. Probably not too far away.

“I think that's notable because our history and tradition as a country is to emphatically reject any sort of local legislative scheme that has the effect of pushing the burdens of poverty or indigency into other communities. It's woven throughout our Constitution,” Ms. Corkran said.

This is particularly notable because it’s clear from the plaintiff’s arguments that the town is hoping that the homeless people will just magically go away, or at least move off to another city --- or into the only available shelter, which is also a religious institution that advertises attempting to convert those in the shelter.

Some of Ms. Corkran’s weaker arguments come in response to questions about the semantics of the issue. At one point Ms. Corkran was asked whether homelessness is a status someone can be in regardless of what they are doing or if they are doing nothing.

Specifically, Justice Roberts asks whether being homeless is a status like having cancer, pointing out that a person might become homeless or not overnight and insinuating that someone’s having cancer or being addicted is not something that changes over time, or at least as quickly as being homeless might.

“So the question is a is status something that a person is when they’re not doing anything,” Ms. Corkran responds. “So being addicted, having cancer, being poor, are all statuses that you have apart from any conduct.”

I understand why Ms. Corkran must respond to the chief justice’s line of questioning here but I cannot emphasize enough that this is a pointless distinction. There is no point in discussing what a person is or is not when they’re not doing anything because it’s an impossible scenario. No one is ever not doing anything. Again, basically a question from the justice about whether “being” is different from “being while doing.

Lastly, Ms. Corkran concedes during one line of questioning that it might be reasonable to enforce laws like these if there were sufficient beds in a shelter in the relevant jurisdiction. In that scenario, the laws would not punish people for taking care of their basic needs but rather punish them for not accepting a shelter bed when offered to them instead of being punished.

So, when shelter is available, the ordinances are enforceable because they punish the conduct of not accepting a shelter bed when offered, as opposed to the status of homelessness,” MS. Corkran said.

I understand why one might be inclined to make this concession but one must stop to consider that in Grants Pass the only shelter is a proselytizing Christian organization. Fundamentally, I don’t think it’s inappropriate for religious organizations to help the needy. Actually, quite the opposite, I think it is admirable and should be encouraged. 

However, I also think it would be inappropriate for the local government to punish people for choosing not to take shelter at a religious institution like the one in Grants Pass.