The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Homeless In The Park
Are camping laws regulation of "conduct" by homeless people or the "status" of being homeless?
City of Grants Pass v. Johnson was decided on June 28, along with several other more high-profile cases, including Fischer and Loper Bright. Had this case been decided earlier in the term, I think it would have gotten more attention. This case put on display two diametrically opposite modes of judging: How narrowly to read precedent? Should non-originalist precedent be extended? How should policy considerations factor into constitutional law? What role should amicus briefs play? Should courts review legislative records to determine improper motivation or "animus"? And so on. I'll address these issues in another post.
Here, I'd like to write about the legal issue in the abstract. Specifically, should the government be able to prohibit homelessness? The title of this post is a play on the classic law school hypothetical: No Vehicles In the Park? Generations of law students have been asked to interpret a sign with this message. Does it prohibit cars? Bicycles? Baby carriages? Baby-carriers? Wheel chairs? Crutches? Horses? Wheel-barrows? Hovercrafts? Piggyback rides? Potato sack race? And so on. It is a fun classroom exercise, which is quite relevant to Grants Pass.
Grants Pass divides about how to understand the local law. The majority, per Justice Gorsuch, reads the law to prohibit "camping" in public places, including parks. The dissent, per Justice Sotomayor, reads the law to prohibit the mere existence of being homeless, such as by sleeping with a blanket in public places.
The same act can be characterized in two very different ways. Why does it matter? Because the government is well within its powers to prohibit actions. For example, the government can prohibit the use of narcotics. But can the government prohibit the status of being a drug addict? In Robinson v. California (1961), the Supreme Court held that California could not enforce its law making "the 'status' of narcotic addiction a criminal offense." For now, let's put aside whether Robinson was a correct application of the Eight Amendment (it was not) and whether this precedent should be extended to the context of homelessness (it should not).
The law often has difficulties distinguishing between status and conduct. Long before Obergefell, there was a vigorous debate about laws concerning gays and lesbians. For example, did the sodomy law at issue in Lawrence v. Texas (2003) prohibit the act of gay sex, or did it criminalize the status of being gay--that is, an act that is intrinsic to being homeless. Justice Scalia's dissent offered this rejoinder to Justice O'Connor's concurrence:
JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.
"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." Ante, at 5.
Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
Seven years later, the Court decided Christian Legal Society v. Martinez (2010). Would a policy excluding gay students from a student organization on campus discriminate on the basis of engaging in activity viewed as sinful (gay sex) or on the basis of simply being gay.
In Christian Legal Society v. Martinez, Justice Ginsburg rejected this distinction:
CLS contends that it does not exclude individuals because of sexual orientation, but rather "on the basis of a conjunction of conduct and the belief that the conduct is not wrong." Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." (emphasis added)); id., at 583 (O'Connor, J., concurring in judgment) ("While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class."); cf. Bray v. Alexandria Women's Health Clinic, 506 U. S. 263, 270 (1993) ("A tax on wearing yarmulkes is a tax on Jews."). See also Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae 7–20.
But in Lawrence and related cases, the Court's conservatives advance that this distinction is valid. Under the law, is it possible to hate the sin but love the sinner?
In Grant's Pass, the Court's right and left continue to divide along similar lines. The Grants Pass majority views the law as a regulation of conduct by homeless people. And the Grants Pass dissent views the law as a regulation of the status of being homeless--that is, an act that is intrinsic to being gay.
To state it more simply, does the law prohibit the use of a vehicle in the park? Or does the law prohibit the existence of a vehicle in the park?
