SCOTUS Anti-Homeless Ruling Formalizes Segregation of the Poor

In the wake of the Supreme Court’s June 28 ruling holding that it’s not cruel and unusual to fine or arrest people for experiencing homelessness, cities, counties and states are rushing to step up enforcement of anti-homeless laws and enact new ones. In California, Gov. Gavin Newsom released an executive order pressuring cities to “sweep” all of their encampments; in Minnesota, multiple cities have introduced new anti-camping bans; and in Tennessee, unhoused people are facing six years in prison for sleeping outside. The City of Grants Pass v. Johnson decision is a devastating setback in a four-decade-long effort to end modern homelessness.

The cruelty of the six conservative justices’ analysis is plain for all to see. But what is maybe most disappointing about the decision is the court’s failure to condemn anti-homeless laws for what they are — segregation.

Laws banning sleeping outdoors or using a blanket to stay warm are designed to remove unhoused people from public spaces. The laws may appear neutral, but elected officials who enact them always say the quiet part out loud. The city council president of Grants Pass, Oregon, the defendant in the Supreme Court case, explicitly stated that, “the point is to make it uncomfortable enough for [people experiencing homelessness] in our city so they will want to move on down the road.”

To understand the United States’ affinity for punishing unhoused people, we must examine and reckon with our country’s long history of punishing and segregating the poor, people of color and people with disabilities, all of whom are overrepresented among the unhoused community. Segregation is deeply ingrained in our legal and sociopolitical fabric. People experiencing homelessness are merely the latest targets.

The earliest comparison actually predates independence, when municipalities located in the colonies “warned out” the poor. In these municipalities, people who were poor and had no local family to support them were banished from the towns.

After the abolition of slavery, Jim Crow laws barred people of color from public spaces and even entire localities. “Sundown towns,” in particular, were designed to ensure that localities remained all white by prohibiting people of color from being within town limits after dark. These prohibitions were sometimes enacted and enforced through law, but other times through threat and racial terror, including lynchings. Sundown towns were omnipresent and despite conventional belief, disproportionately located in the Midwest and North. In fact, Grants Pass was a sundown town, issuing the call at the time: “Keep Grants Pass a White Man’s Town.”

The cruelty of the six conservative justices’ analysis is plain for all to see. What is most disappointing about the decision is the court’s failure to condemn anti-homeless laws for what they are — segregation.

Akin to sundown towns, between the 1860s and 1910s, cities across the country passed “ugly laws” to remove people living with disabilities from public space. These laws, intended to deter panhandling, went much further. For example, in Chicago, the law stated, “No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly, disgusting or improper is to be allowed in or on the public ways or other public places in this city.” The broad nature of these laws forced people living in poverty and with disabilities into almshouses and sanatoriums.

Such segregationist policies do not end there — whether it be “Anti-Okie Laws,” Japanese internment, or even laws like those against loitering or vagrancy, which may appear neutral on their face but are enforced in bigoted ways — history is replete with examples of the use of criminal law as a tool of regulating the presence of disempowered people in public space.

Unsurprisingly, Grants Pass and other cities argued before the Supreme Court that their own modern iterations of laws against unhoused people are necessary to force people experiencing homelessness into shelters and drug rehabilitation programs — even though the cities all conceded that they did not have enough capacity in those programs to serve everyone in need.

Cities, counties and states will often argue that anti-homeless laws are not segregationist because they do not target “discrete minorities”; however, their arguments conveniently ignore that historically marginalized communities — including people of color, LGBTQIA+ people, survivors of intimate partner violence and people with disabilities — are vastly overrepresented among people experiencing homelessness, and that these communities are disproportionately targeted by police enforcing the laws.

But the people who proponents of segregationist and punitive approaches to homelessness seek to drive away call their communities “home.” In fact, despite popular belief, unhoused people overwhelmingly reside in the communities they grew up in or lived in before falling into homelessness. Yet, at this juncture, criminal laws punishing sleeping, camping and sitting or lying down are so ubiquitous that there is almost no place for people to seek refuge.

Maybe most importantly, these policies have been repeatedly exposed as failures. Fining people experiencing homelessness only diverts income that could otherwise be used for rent toward paying debt accrued from being criminalized. Jurisdictions still lack shelter beds or affordable housing to place people in when they are released from jail, meaning they cycle right back to the streets with more barriers than before.

We must examine and reckon with our country’s long history of punishing and segregating the poor, people of color and people with disabilities, all of whom are overrepresented among the unhoused community.

Had the Supreme Court ruled the other way, the political pathways to affordable housing might have been paved. With a condemnation of punitive approaches, elected officials would have had no choice but to pivot to productive solutions like investing in rental subsidies, the production of affordable housing, and the provision of critical health care and social supports.

In greenlighting the continued punishment of people experiencing homelessness, the Supreme Court has left cities, counties and states to wander aimlessly in their response. The irony, of course, is that these policies, ineffective as they are, will drive us to a tipping point: Anger with governmental ineptitude in solving homelessness will only continue to grow, and cities and states will be forced to invest in housing. How long that may take, however, is hard to assess. In the interim, the suffering of our neighbors on the street will only persist, and another chapter in our nation’s segregationist history will be written.