‘Open season on anyone with a tent’: Maine advocates react to Supreme Court homelessness ruling

A demonstration against city sweeps of homeless encampments outside Portland City Hall on Sept. 26, 2023. (Courtesy of Samuel Crankshaw/ACLU of Maine)

The ACLU of Maine is urging local communities not to punish unhoused people for trying to survive after the U.S. Supreme Court on Friday upheld an Oregon city’s ordinance that bans sleeping and camping on municipal property.

In a 6-3 r uling, the Supreme Court’s conservative majority decided that the camping rules put in place by Grants Pass, Oregon, do not violate the Constitution. The decision reverses a 2022 ruling by the Ninth Circuit Court of Appeals against the ordinance.

The case began in 2018 when three unhoused people sued the city of Grants Pass, arguing that banning sleeping and camping on city property when there isn’t adequate access to shelter goes against the Eighth Amendment’s prohibition on cruel and unusual punishment.

Although the matter pertained to an Oregon city’s ordinance, legal and homeless advocates around the country, including in Maine, were closely following the case. And as oral arguments got underway in April, over 70 people rallied in Portland’s Monument Square to denounce the criminalization of homelessness.

The ACLU of Maine decried the high court’s ruling on Friday and warned that municipalities should not use the decision as a rationale to further crack down on unhoused people.

U.S. Supreme Court sides with Oregon city, allows ban on homeless people sleeping outdoors

“Today’s ruling opens the door for cities to punish people simply for trying to survive while poor,” ACLU of Maine executive director Molly Curren Rowles said. “But just because the court says they can does not mean Maine towns and cities should.”

“Our state and local leaders still have a choice,” Curren Rowles continued. “They can either continue attempting — and failing — to punish people out of poverty or they can address the root causes of homelessness by increasing access to health care, education, and jobs.”

The ACLU noted in its news release that some communities in Maine have laws banning people from sleeping outside even when there is not available shelter space. Still, Rowles emphasized that “ despite this ruling, unhoused people still have rights under state and federal law, including due process, freedom from discrimination, and protection from unreasonable search and seizure .”

Even with those rights, Brian Arborio, who was homeless for three years before recently getting housing in Portland, said he worries what the Grants Pass ruling will mean for people living outside.

“What I’m really fearful of is that it’s going to really be open season on anybody with a tent, a sleeping bag, a pillow or a car who is sleeping outdoors because there’s no shelter space, there’s no affordable housing, there’s no landlords who accept the vouchers,” said Arborio, a homeless rights advocate.

Arborio added that the decision will further marginalize unhoused people.

“It’s really going to do a lot of damage because it’s going to push people who are already unsheltered further away from any of the access points that they need to get stable housing,” he said.

George Hill, president and CEO of the reproductive health group Maine Family Planning, also criticized the ruling, calling it “inhumane that the Supreme Court saw fit to criminalize survival.” Hill noted that “when people lack housing stability, they are routinely unable to access basic reproductive care.”

The majority opinion in the Grants Pass case was written by Justice Neil Gorsuch, who rejected the argument that the city’s ordinance violates the Eighth Amendment in a decision joined by the court’s conservatives.

“Homelessness is complex,” he wrote . “Its causes are many. So may be the public policy responses required to address it,” he wrote.

Gorsuch continued: “The Constitution’s 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.”

The court’s liberal bloc dissented, with Justice Sonia Sotomayor writing that “sleep is a biological necessity, not a crime.”

“For some people, sleeping outside is their only option,” Sotomayor noted. “The city of Grants Pass jails and fines those people for sleeping anywhere in public at any time. …For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”

The Supreme Court’s decision comes as many Mainers continue to experience homelessness amid rising housing and rental prices. While this year’s point in time count found there were fewer unhoused people in Maine on January 23, 2024, than in 2023, the reduced count does not necessarily mean that fewer people are actually homeless, according to MaineHousing. Instead, the lower number is the result of decreased counts of unhoused people in emergency motel rooms.

The ruling also follows a decision by the Bangor City Council on Monday night to update an ordinance banning people from standing on certain road medians, which the ACLU of Maine argued will “disproportionately silence and entangle the city’s unhoused residents in the legal system.”

The ACLU has repeatedly criticized municipal responses to homelessness, including the use of homeless encampment sweeps , calling such tactics ineffective and a violation of multiple constitutional rights .

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