In the mix of decisions of arguably greater consequence, the Supreme Court decided another matter, Grants Pass v. Johnson, that deserved greater attention. The decision has been characterized as criminalizing the status of being homeless, which the Court, by 6-3 split, held did not violate the prohibition of cruel and unusual punishment prohibited by the Eighth Amendment. But was that the holding?

The case in question is City of Grants Pass v. Johnson, a case about the small town of Grants Pass, Oregon, that enacted a “camping ban” that prohibited sleeping on public property with “bedding”—i.e., sleeping bags, blankets, or even rolled up clothing—“for the purpose of maintaining a temporary place to live.” It also prohibited sleeping overnight in a vehicle. The extensive record showed that the town’s lawmakers enacted these ordinances for the express purpose of targeting the homeless population and attempting to drive them out. Gloria Johnson, a homeless woman living in Grants Pass, sued, arguing the ban was a violation of the Eighth Amendment’s cruel and unusual punishments clause. The Supreme Court’s conservative supermajority ruled in favor of Grants Pass, declaring that its “camping ban” was not unconstitutional.

As Josh Blackman argues, there is a difference between criminalizing conduct and criminalizing a status.

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).

Theoretically, Josh’s distinction makes sense. After all, the only prohibition involved in Grants Pass is camping in public places. That’s conduct, right? But it’s a lot like criminalizing the sun setting. It’s going to happen regardless of what the law demands because nature exists beyond the law’s reach. So too does homelessness. Regardless of why people are homeless, they are and they exist. There are many things that might be done to alleviate homelessness, but legislating it out of existence is not one of them.

Since the City of Grants Pass offered no aid to the homeless, they were left with two options. “Camp” or leave. By using the word “camping,” it makes it seem like a fun outdoor activity one does to roast weenies and tell ghost stories. The problem in Grants Pass is that even the homeless have to sleep, and for many, the ghost stories were real. This is where Josh’s theory collides with reality, which was described by Justice Sotomayor in dissent.

Put another way, the Ordinances single out for punishment the activities that define the status of being homeless. By most definitions, homeless individuals are those that lack “a fixed, regular, and adequate nighttime residence.” 42 U. S. C. §11434a(2)(A); 24 CFR §§582.5, 578.3 (2023). Permitting Grants Pass to criminalize sleeping outside with as little as a blanket permits Grants Pass to criminalize homelessness. “There is no . . . separation between being without available indoor shelter and sleeping in public—they are opposite sides of the same coin.” Brief for United States as Amicus Curiae 25. The Ordinances use the definition of “campsite” as a proxy for homelessness because those lacking “a fixed, regular, and adequate nighttime residence” are those who need to sleep in public to “maintai[n] a temporary place to live.”

Grants Pass wasn’t shy about the purpose of its ordinance. It was intended to force the homeless out of Grants Pass by making it illegal for them to sleep there. Since sleep is a human necessity for survival, making it criminal for the homeless to sleep in Grants Pass made it illegal to be homeless in Grants Pass.

While Justice Sotomayor loaded her dissent with the emotive language of the left, her argument was practical whereas the majority’s was theoretical. While it’s true that the ordinance didn’t, per se, criminalize the status of being homeless, it criminalizes a surrounding necessity of human survival for the homeless. Cool trick if you can pull it off, and the majority allowed Grants Pass to pull it off.

This is not to say that camping in public doesn’t raise issues. It’s also not to say that there are no problems associated with homelessness, sometimes of the homelesses’ own making. But making a basic necessity of human existence illegal, particularly while providing no alternative, cannot be separated from criminalizing the status of homelessness. The dissent, overbearing rhetoric aside, was right.