U.S. Supreme Court’s camping ban case could affect new Kentucky law

Housing advocates and activists for homeless Kentuckians gathered in the park across from the Romano L. Mazzoli Federal Building in downtown Louisville last week.

Ahead of the rally, they setup tents each carrying a “No Trespassing” notice that later served as a backdrop as speakers called on the U.S. Supreme Court to strike down a ban on sleeping in public in Grants Pass, Oregon.

That same day SCOTUS heard a case that will decide to either uphold a lower court’s decision to stop enforcement on the Oregon ban or overturn it.

At the rally, protestors chanted “Housing, Not Handcuffs,” and called for more affordable housing in the city. Democratic state Rep. Nima Kulkarni from Louisville spoke at the rally, calling on lawmakers to invest in solutions to homelessness, namely, more affordable housing.

“The solution to homelessness is simple,” Kulkarni said. “It’s not a difficult solution and it’s not new. But what it needs to be successful is funding. But what we do not have right now is the political will to invest in our communities and in our people.”

Earlier in April, the Kentucky legislature passed a statewide ban on street camping , following measures in a few other states like Tennessee and Texas . It passed as part of the sweeping Safer Kentucky Act, making street camping a misdemeanor for repeated offenses. That can carry up to 90 days in jail and a $250 fine.

One of the bill’s sponsors, Republican Rep. John Hodgson from Fisherville said it's a matter of compassion.

“Even formerly addicted homeless people that I've talked to, they said, ‘We need tough love. We need somebody to force us into rehab,’” Hodgson said at one of the public meetings on the bill.

Along with grassroots efforts to pass these bans across the country, national think tanks are also pushing them as a solution to homelessness.

The Cicero Institute, and its lobbying wing Cicero Action, has been involved in some of these bans and many of its suggestions appear to be incorporated into Kentucky’s ban. Cicero Action had five registered agents lobbying in Frankfort this year.

Mauro Jones has experienced homelessness three times in his life. He began to tear up as he explained that he and his wife just got access to a home after being homeless for nearly a year. Jones said he went to Frankfort to speak to lawmakers in opposition to the bill, to no avail.

He said he agrees with the legal argument against the bill now before the Supreme Court — that the bill is “cruel and unusual” under the Eighth Amendment.

“Some people just look at you like you’re nothing, like you’re just trash,” Jones said. “They should have housing every person that is homeless in this country. Not just in Louisville.”

Constitutional challenges

University of Louisville Law Professor Samuel Marcosson said that Grants Pass is arguing that, to deal with the surge in homelessness, they need every tool. Lawyers from Grants Pass have frequently called homelessness a “complex” policy issue.

“From the municipalities’ point of view, they should have the autonomy to make these decisions, because they're fundamentally policy decisions,” Marcosson said. “[They say] that the Supreme Court shouldn't make a constitutional rule that circumscribes their power.”

Meanwhile, opponents to the ban say it is essentially cruel and unusual and that you can’t make someone’s status a crime. Marcosson said there is also a case that these public sleeping laws aren’t applied to everyone equally.

“If somebody has a picnic in the park and takes a nap, the city doesn't enforce this law against them. It enforces it against people who are homeless,” Marcosson said.

A federal appeals court agreed with the ban’s opponents and stopped Grants Pass from enforcing its ban on people who have nowhere else to go.

If the Supreme Court upholds that decision, it would open the door for constitutional challenges to bans like the ones in Kentucky, according to Kenneth Katkin, a Northern Kentucky University law professor.

“I think they're basically the same,” Katkin said. “If they challenge [Kentucky’s ban] under the US Constitution, the outcomes are going to be identical.”

Typically, the Supreme Court takes up cases where there is disagreement in the lower courts. Katkin said the fact the court took up the case when there didn’t appear to be any disagreement was likely cause for some concern among the ban’s opponents. And after listening to oral arguments, Katkin says he’s confident in predicting the outcome of the case.

“I feel confident to predict that the Supreme Court is going to uphold the Oregon law and reverse the Ninth circuit,” Katkin said.

Kentucky’s ban won’t go into effect until mid-July and the Supreme Court is expected to rule around the end of June.

A need for affordable housing

Housing advocates in Kentucky and across the country say the street camping bans effectively banish homeless people, some of whom have literally no other option but to sleep on the streets.

James Suie, who is homeless, is from Murray Kentucky, which has no emergency shelter. He said when he lost his housing, he left the area to find a shelter, but not everyone has the option.

“We don’t need to be putting people in jail just because they can’t afford to sleep somewhere,” Suie said.

Homelessness is on the rise in Kentucky and across the country. The U.S. Department of Housing and Urban Development conducts point in time homelessness surveys in each state in January, and according to that survey, more individuals were homeless in Kentucky last year than they have been since 2014. In 2023, 4,766 people in Kentucky experienced homelessness on a given night.

Nationally, in just a two-year period, homelessness increased 70% across the country according to the Housing and Urban Development survey.

Eric Tars, the senior police director at the National Homelessness Law Center, said cities and now states have increasingly turned to these bans instead of addressing an affordable housing crisis.

“Because it's the most politically expedient thing to do to just pass a law and hide the cost of it in the jail budgets in the law enforcement budgets,” Tars said.

In Louisville, a housing needs assessment found the city’s lowest income households need roughly 36,000 more affordable units.

“You can make that one encampment disappear for that one constituent, but you're not actually solving homelessness,” Tars said.

State government and politics reporting is supported in part by the Corporation for Public Broadcasting.