No “religious” beds for the homeless?

In the city of Grants Pass, Ore., beds in homeless shelters lie empty while poor people sleep outside in streets and parks. City officials want to change that, but they first have to overcome a legal challenge that made it all the way to the Supreme Court this week. The case has implications not only for how communities help the homeless but also for how the government collaborates with religious social service providers.

On Monday, the court heard arguments in City of Grants Pass v. Johnson, a case that questions the constitutionality of three ordinances adopted in 2013 by the city of nearly 40,000. One ordinance bars sleeping on public sidewalks, streets, or alleyways. Another prohibits camping on any public street, under bridges, or on public property, defining a campsite as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed.” A final rule bans camping in city parks.

“Cities want to help those in encampments get the services they need while ensuring that our communities remain safe, but they find themselves hamstrung in responding to public encampments and the drug overdoses, murders, sexual assaults, diseases, and fires that inevitably accompany them,” the city argued in its petition to the Supreme Court.

In a 2018 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that any restriction on public camping constituted cruel and unusual punishment if no alternative housing was available in the community. The same court declared the camping bans in Grants Pass unconstitutional because of a lack of alternative housing. The city’s Gospel Rescue Mission has more than 100 beds available in its shelter, but the appeals court says those don’t count due to “substantial religious requirements.”

In a friend-of-the-court brief, the Gospel Rescue Mission said fewer people have taken advantage of its services since the city stopped enforcing its camping ban after the Martin decision in 2018. The mission is the only overnight shelter for adults in Grants Pass.

“In the period spanning 2020 through 2023, the mission housed an average of only 337 residents each year—a decrease of more than 40 percent from the preceding years,” it said.

In a separate friend-of-the-court brief, the Becket Fund for Religious Liberty said the rescue mission beds should count as available housing because staying at the shelter is optional.

“Grants Pass does not compel anyone to be present anywhere, much less at religious services; it simply restricts the ability to camp or sleep in outdoor spaces,” Becket argued. “It does not prescribe whether an individual goes to a shelter, gets a hotel room, leaves town, or makes other arrangements.”

Becket faulted the 9th Circuit for following an outdated legal test once used to determine whether the government was violating the establishment clause of the First Amendment. The Supreme Court’s 1971 decision in Lemon v. Kurtzman established the so-called Lemon test, which required courts to look at whether a governmental entity “endorsed” religion.

Becket said the Lemon test was overruled by the 2022 Supreme Court ruling in Kennedy v. Bremerton School District. In Kennedy, the court said the establishment clause had to be interpreted by “reference to historical practices and understandings.” A court majority upheld the right of high school football coach Joseph Kennedy to offer a silent, post-game prayer at midfield, tossing the Lemon test in the process.

In its brief, Becket explained that under the Kennedy test, courts look to commonly understood “hallmarks” of religious establishments. Most focus on whether the government exercises coercion. None are applicable to the Grants Pass ordinances.

According to Becket attorney Daniel Chen, the case gives the court another opportunity to clearly state that the Lemon test’s focus on governmental endorsement has been abandoned in favor of one on historical practices. Chen said the ruling in the Grants Pass case could have ramifications beyond the context of homelessness, noting the decadeslong and in some cases centurylong social services provided by Protestant and Catholic agencies in cooperation with governments.

“The Lemon test could be manipulated to basically push religious individuals and religious institutions out of public life,” said Chen, adding that the approach would force governments to conclude that there was “no real way for us to partner with religious organizations to deal with pressing societal needs.”

In the Grants Pass case, Monday’s arguments at the Supreme Court focused on the application of the Eighth Amendment and not the First, with no mention of the establishment clause. But Chen is optimistic.

“We hope that whatever decision they ultimately render will take up this discrete issue that we’ve raised and say we meant in Kennedy that Lemon really is dead,” Chen said. “Local governments and courts shouldn’t rely on it to purge religion from public life.”

A ruling is expected by the end of June.