The June 2024 U.S. Supreme Court decision criminalizing homeless camping is not as sweeping as many think; a lack of affordable housing is a major cause of homelessness; and encampment sweeps are counterproductive, disrupting efforts to help the homeless into housing. Those are three main points made last week by Falko Schilling, advocacy director for the American Civil Liberties Union of Vermont, and Frank Knaack, executive director of the Housing and Homelessness Alliance of Vermont, at the ‘Recent Supreme Court Decisions Speaker Series,’ sponsored by the League of Women Voters of Vermont and the Kellogg-Hubbard Library.
“How big a deal is Grants Pass?” Schilling asked rhetorically, after explaining several circuit court cases that led up to Grants Pass, OR v. Johnson, the case in which the Supreme Court, by a 6–3 vote, sided with the southwestern Oregon city’s ordinance that prohibited camping on public land and set out progressively stiffer penalties for doing so.
Schilling quoted conservative Justice Neal Gorsuch, writing in the majority decision, that the ordinance only criminalized the act of camping, not being homeless.
He also referenced Justice Sonja Sotomayor’s minority dissent: “The only question for the court today is whether the Constitution permits punishing homeless people with no access to shelter for sleeping in public with as little as a blanket to keep warm.”
“I disagree with the decision, and it’s disappointing in a number of ways,” Schilling continued, “but the actual impact may, in fact, be a little more limited. The central question in this case was whether the 8th Amendment’s ban on cruel and unusual punishment, by itself, prohibited enforcement of the city’s anti-camping ordinance, and it’s saying ‘No.’ The court rejected one really specific constitutional provision as posing a barrier to certain camping bans.”
Schilling listed a series of protections that should keep those who are unsheltered from being charged for camping on public property. They include property and privacy rights, due process, free speech rights, anti-discrimination provisions of both the federal and state constitutions, and Vermont’s Fair Housing and Public Accommodations Act.
Schilling and Knaack both said they know of no Vermont municipality creating any such anti-camping ordinance. Schilling said the ACLU sent all municipalities a list of legal protections that would have to be considered related to any such ordinance.
Knaack said that in addition to being inhumane, criminalizing camping by those who are unsheltered is counterproductive, putting more hurdles — such as an arrest record — in front of people who are seeking the employment and housing they need to stop being homeless.
“We have around 3,500 unsheltered people on any given night in Vermont,” Knaack said. “Vermont has the second-highest per capita rate of unhoused people in the entire country, so we have a serious problem on our hands in terms of the state’s failure to respond to the crisis at hand.”
Calling protecting people a role of government, Knaack said there has been a lack of political will to adequately support the state-funded motel program and to invest in housing. He said the gap between wages and the cost of living and the lack of access to affordable housing are the top causes of homelessness.
He said encampment sweeps are also problematic and counterproductive; that in addition to losing personal possessions, people often lose their identification, which is essential in getting services and in applying for jobs and housing.
“We have an amazing shelter and service provider network in Vermont (which is) perpetually under-resourced and overworked,” he said. “(They) are going out, meeting with unhoused people, building trust, connecting them with resources that are available, and when these sweeps occur, what that does, in reality, is disrupt that connection.”
The next program in this five-part series, on Jan. 8, 2025, is about Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court case limiting the powers of regulatory agencies. For details and registration, go to kellogghubbard.org. The talks are available on Zoom and streamed on ORCA Media; they are recorded by ORCA and the library for later viewing.
Disclosure: Tom McKone was executive director of the Kellogg-Hubbard Library when the library and league began this series, and he has occasionally moderated panel discussions in it.
