Supreme Court decision on outdoor camping bans clears the way for Kentucky ban

The U.S. Supreme Court ruled that an Oregon ordinance penalizing homeless people for sleeping outside doesn’t violate the U.S. Constitution. A similar ban that passed the Kentucky legislature earlier this year is likely also covered under the decision, legal experts told Kentucky Public Radio .

The ban on sleeping or camping outdoors was one of the most controversial measures included in the omnibus Safer Kentucky Act.

Louisville GOP Rep. Jared Bauman, the bill’s lead sponsor, lauded the Supreme Court’s decision in a statement.

“The opinion recognizes that we can’t ignore the public safety and private property interests involved in this complex issue,” Bauman said. “This decision reflects a commitment to upholding the Constitution and embodies a compassionate approach towards our homeless population. We must continue working together to support Kentuckians in need. I commend the Court for interpreting the law with integrity and rendering a decision that enhances public safety.”

The Kentucky legislation makes street camping a misdemeanor for repeated offenses, which can carry up to 90 days in jail and a $250 fine. It does not include exceptions for when treatment or shelter beds are full, nor does it require police to offer those resources before arresting a person.

In the majority opinion, Justice Neil Gorsuch describes homelessness and the policies designed to address it as “complex.”

“People will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others,” Gorsuch wrote. “But in our democracy, that is their right.”

Advocates for homeless Kentuckians expressed dismay at the decision, which did not find the Oregon bans on sleeping outside as “cruel and unusual punishment” under the Eighth Amendment.

The ACLU of Kentucky bemoaned the decision, saying in a statement that bans on outdoor homelessness “punish people in ways that are disproportionate to the crime. ” The human rights organization filed an amicus brief with the Supreme Court on the case.

“The Supreme Court's ruling ignores decades of precedent protecting Kentuckians from the cruel and unusual punishment of criminalizing homelessness,” Kevin Meunch, a legal fellow with the Kentucky ACLU, said. “Homelessness can happen to anyone, and we are disappointed the court has taken the extraordinary step of ignoring precedent to support punishing unhoused people simply for existing.”

Maurice Noe, an advocate with VOCAL-KY, currently lives in Louisville’s Hope Village, a transitional pilot program designed to connect people with resources. Noe said, as a person who experienced homelessness for the last five years, he does consider it cruel to criminalize people who have no other choices.

“When you go to a shelter, they don't have the beds. They're turning people away regularly by the hundreds,” Noe said. “They don't have a place to go. So where are they going to go? They're going to go into the overpasses. They're going to go to tent cities, wherever they can.”

Noe said he believes lawmakers should focus on funding affordable housing and supportive services, rather than jailing people for sleeping on the streets. Noe said some lawmakers held up two options: go to rehab, or go to jail.

“I'm not a drug addict. I'm not alcoholic, I'm not mental. They give you the opportunity, ‘Well, either you go to rehab or you go to jail.’ What the hell I need to go to rehab for?” Noe said.

In her dissenting opinion, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option.”

Catherine McGeeney with the Coalition for the Homeless, a Louisville organization that lobbied heavily against the legislation, said being homeless has already been made even more difficult in Louisville due to frequent encampment clearings.

“One of the greatest impacts that clearing camps, fining people or putting them in jail has is that they get disconnected from the services and the teams who are helping them.”

She said she hopes this ruling and legislation makes people reevaluate the narratives that they hold onto about people who are experiencing homelessness.

“We as Kentuckians, as Louisvillians, have to really look at the narratives that we believe, and the reasons that we believe them,” McGeeney said. “And think about the dignity of people and the roles of governments in protecting people who are vulnerable. I hope that we, as a city, can decide that this isn't who we want to be.”

A spokesperson for the ACLU of Kentucky said they are continuing to review the Safer Kentucky Act, including the street camping ban component, and will closely watch the bill’s enforcement.

A challenge based on the Kentucky Constitution is still an option, as the state Supreme Court could come to a different conclusion.