Graham Coughlan
Earlier this year, the Supreme Court delivered a major blow to America’s increasingly hollow claim of being a global leader in human rights. The justices, who comfortably earn $298,500 a year, greenlit the criminalization of homelessness. This decision not only perpetuates a cycle of homelessness for more than 650,000 Americans but it jeopardizes countless more as the housing crisis worsens.
The ruling in City of Grants Pass v. Johnson, which allowed cities to fine and jail the homeless, starkly contradicts international law and shows a troubling disregard for human rights. Federal legislation—or miraculous court reform—is essential if America wishes to address homelessness and become a sincere defender of human rights. Only systemic change will prevent cities from criminalizing homelessness, protect the vulnerable, and align the nation’s policies with its human rights commitments.
Yet, a cold disregard for human rights permeates throughout Grants Pass’s majority opinion. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote a fiery dissent challenging the decision. She explained that the City of Grants Pass’ statute criminalized the status of being homeless, being a clear violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
The United States Interagency Council on Homelessness itself has recognized that laws criminalizing homelessness likely violate the Convention Against Torture as well as the International Covenant on Civil and Political Rights. The City of Grants Pass’ law specifically targets the homeless, with the police acknowledging they would not fine a sleeping stargazer. This must then be a clear and targeted criminalization of homelessness. In fact, laws of this nature directly violate the origin of modern international human rights law, the Universal Declaration of Human Rights (UDHR). The UDHR, proclaimed by the United Nations in 1948, enshrines the right of all to housing for circumstances outside their control.
This introduces the backdrop of the entire discussion—whether the unhoused are at fault for their status. After all, one might ask the question: If they are at fault, what obligation does society have? First, 45% of the homeless are mentally ill, a factor definitively out of their control. Additionally, many are unhoused because of the lack of affordable housing paired with stagnating wages. Even if individuals are not responsible for their unhoused status, is America ready to remove the option of sleeping in public?
Justice Sotomayor, in oral arguments for Grants Pass, put it more bluntly: If the unhoused can’t sleep anywhere, “are they supposed to kill themselves?” Justice Neil Gorsuch, writing for the majority, unsympathetically countered by analogizing the unhoused to drunks. To argue that being homeless is not a status, Gorsuch described homelessness as equivalent to the behavior of drinking. Relative to being homeless, drinking is not the status of being an alcoholic (which case law forbids criminalizing).
In equally callous terms, the National League of Cities (NLC)—composed of 19,495 cities—defended the decision under the guise of regulating “for health and safety.” This implies that the homeless community is not only unworthy of health and safety efforts but is a threat to those efforts. This language thinly veils an exclusionary “us-versus-them” mindset, which opposes the foundational inclusionary standards of international law.
To maintain trust with foreign governments and its citizens, American policy needs to reflect the international laws to which it has committed. Otherwise, as Thomas Hobbes said, these agreements are “covenants without the sword.” And as long as this hypocritical posturing continues, it will keep damaging the United States' declining international reputation.
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