Homelessness rules in Oregon may not change much despite Supreme Court decision

The U.S. Supreme Court’s decision Friday allowing the city of Grants Pass to regulate and penalize unsheltered homelessness will undoubtedly reshape outdoor camping policies across the West. Despite the case being out of Oregon, the ruling will have a limited effect here because of a state law that provides protections for people experiencing homelessness.

The court’s decision found that Grants Pass’ policy penalizing people who sit or sleep on public property did not amount to cruel and unusual punishment under the Eighth Amendment. Importantly, the court’s six conservative justices determined it is up to the states — not the federal courts — to determine how these restrictions are made.

The ruling is a win for the small southern Oregon town, which challenged a 2018 ruling by the Ninth Circuit Court of Appeals that granted protections throughout much of the Western United States for people experiencing unsheltered homelessness.

“Oregon should be allowed to experiment with different solutions and that’s really up to the people of Oregon to decide what they think is the best solution here,” said Theane Evangelis, an attorney for Grants Pass who argued the case before the court earlier this year. “We think that camping laws like those in Grants Pass are reasonable. Cities across the country rely on them.”

Attorneys representing people experiencing homelessness in Grants Pass said the decision was a blow to some of the nation’s most vulnerable people.

“While this decision is disappointing, it is important to remember that the solution to America’s homelessness crisis does not rest with the Courts,” Ed Johnson, director of litigation at the Oregon Law Center, said in a statement Friday. “That job falls to all of us. The solution to our homelessness crisis is more affordable housing.”

The ruling won’t immediately allow Oregon cities to begin penalizing unhoused people for resting on public property, due to a state law that puts limits on sweeping public camping bans. But it could create a legal path toward stricter regulations that cities across the state have long sought.

“Our parks were never meant to be campgrounds, and now our cities can finally begin restoring our communities’ public spaces,” Oregon House Republican Leader Jeff Helfrich said. “The Supreme Court’s ruling is a victory for common sense and highlights what conservative leadership looks like.”

What the Supreme Court decision will mean in the Pacific Northwest remains to be seen as local leaders across Oregon and Washington began to interpret Friday’s ruling. In Multnomah County, county commission Chair Jessica Vega Pederson did not lay out immediate changes to any policies.

“People still need places to stay warm and dry and ultimately leave homelessness,” Vega Pederson said in a statement. “People still need additional services to transition into shelter or housing. And we must continue to do more — and do it faster and better.”

Portland Mayor Ted Wheeler said in a statement that he expected Friday’s ruling to have little effect on Oregon’s largest city. He noted that state law “continues to control and limit what Oregon cities can and can’t do.”

Wheeler said the city would still begin enforcing the city’s camping ordinance on Monday, with a focus on those places that “pose the largest health and safety risks.”

Oregon’s law cited

The high court’s ruling upends a 2018 decision from the Ninth Circuit Court of Appeals in a case known as Martin v. Boise. In that case, the appeals court found that the Idaho city could not enforce an ordinance that banned sleeping on public property if there wasn’t available housing or shelter to accommodate unhoused people. It said to do so would violate the Eighth Amendment.

The case has had widespread implications for cities and counties throughout the western United States. Officials have struggled to swiftly expand housing and shelter space to meet the ruling’s standards, while simultaneously trying to address sprawling homeless encampments that have drawn public ire.

The case out of Grants Pass builds on the Boise ruling. In 2022, the Ninth Circuit found the city of Grants Pass had violated the constitutional rights of people experiencing homelessness through a series of ordinances designed to prevent sleeping outside on public property.

Attorneys representing the city of Grants Pass asked the U.S. Supreme Court to take the case. The justices heard oral arguments in late April.

It wasn’t certain which way the majority conservative court would rule. Several questioned whether their court was the right venue to dictate how local jurisdictions navigate such complex social issues as homelessness.

Still, Justice Neil Gorsuch, writing for the court’s majority, said while people may disagree on how best to address homelessness, the federal judiciary shouldn’t be the decider of those policies.

“The Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy,” Gorsuch wrote.

A state law adds another layer of protections to unhoused Oregonians. The 2021 legislation, a major focus of Gov. Tina Kotek when she served as House speaker, requires that any local laws created to regulate where people sit or lie in public be “objectively reasonable” — a term has not been formally defined by the courts.

Gorsuch called out the Oregon law specifically in the opinion as an example of states forming their own policy around homelessness.

“Since this litigation began, for example, Oregon itself has adopted a law specifically addressing how far its municipalities may go in regulating public camping,” he wrote. “Nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.”

There have been attempts to get more clarity on how the Oregon law works.

Last year, the Oregon Law Center challenged Portland’s new public camping ban in court, arguing that it did not meet the “reasonableness” standards of state law. The city has since repealed the challenged camping policy and replaced it with one it believes can withstand a legal challenge, leaving the original lawsuit to fizzle in court.

The legal skirmishes haven’t been contained to Portland. Six homeless residents sued the city of Medford in 2021, arguing a camping ordinance passed by that city unconstitutionally criminalized homelessness. The challenge was dismissed by a federal judge, who ruled Medford’s policy, crafted under the standard set in state law, was reasonable because it allowed homeless people to sleep in designated public spaces.

Outcomes like that appear to have convinced lawmakers with a big say in housing policies that Oregon’s policies curtailing camping bans are working.

State lawmakers watch for now

The 2021 bill “struck a good balance confirming that cities can implement time, place and manner restrictions while ensuring that regulations are reasonable and homeless people have options,” said state Rep. Pam Marsh, D-Ashland, chair of the House Housing and Homelessness Committee, who specifically noted the outcome in Medford. “From my vantage point in southern Oregon, that guidance has worked well.”

State Sen. Kayse Jama, a Portland Democrat and chair of the Senate Housing and Development Committee, said last week he also didn’t envision big changes to the state law — though he stressed he could not say that definitively without knowing how the Supreme Court would rule.

Kotek stood by the state rules Friday, and said she supports local governments passing appropriate limitations on public camping that align with state law.

“Regardless of the Court’s decision, we must do all we can to address homelessness,” the governor said in a statement. “This includes addressing the primary driver of homelessness — our lack of affordable housing.”

The League of Oregon Cities said its attorneys are reviewing the Supreme Court ruling and plan to issue recommendations in the future. The group said it would not set any policy initiatives related to homeless camping until after its board of directors meets in October.

But some in Oregon say the court’s ruling is an opportunity to revisit Oregon’s law.

“A dark period in the west, for Oregon, for Portland has ended: the Supreme Court has overruled the 9th Circuit in Grants Pass v. Johnson,” Portland Commissioner and mayoral candidate Rene Gonzalez posted on X, formerly known as Twitter. “It is time for the Governor Kotek and the Oregon State Legislature to correct or repeal HB 3115.”

In his statement on the ruling, Wheeler, who leaves office at the end of the year, also signaled an openness to revisiting state law.

“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.

Johnson, with the Oregon Law Center, called the state’s law “a wise policy decision” that block’s harsh camping bans that could crop up in other western states.

“It prevents Grants Pass and any other city in Oregon from doing what Grants Pass wants to do, which is make it illegal on every inch of property 24 hours a day, for people to use as little as a blanket to try and stay warm and dry,” Johnson said during a news conference Friday. “We intend to use that law, which is more important than ever to protect homeless people in the state of Oregon.”

Oregon appears to be the only state in the country that took steps to codify the Ninth Circuit’s opinions on anti-camping laws, according to Eric Tars, a senior policy director at the National Homelessness Law Center, which tracks legislation dealing with homelessness.

While Tars’ organization supported the rationale behind the appeals court decision, it opposed Oregon’s 2021 bill. Tars said the law “does not fully protect unhoused peoples’ interests.” Anticipating the Supreme Court might overturn the Ninth Circuit opinions, Tars has been working with members of Congress and state lawmakers on bills that could “enshrine the protections” of the Grants Pass case.

“Ultimately, however, people are on the streets because of a failure of housing policy from the federal level on down,” Tars wrote in an email.