Eric Rosario, JD Anticipated May 2024
The Modern American Homeless—A Bindle Full of Stereotypes
“The homeless” in America are as diverse as they are stereotyped. We’ve all seen images of young children or grown men carrying the anachronistic bindlestick, immortalized in famous and influential works such as The Runaway by Norman Rockwell. We’ve all cried to stories of the single parent who is working at an unpaid job in hopes that they’ll make a better life for their child immortalized in Chris Gardner’s autobiographical work, The Pursuit of Happyness. Most importantly, we’ve all failed them as a society.
According the U.S. Department of Housing and Urban Development’s (HUD’s) most recent Point-In-Time Count of homelessness in America, there were 582,462 homeless people in America as of January of 2022. This number likely captures fewer people than many of us might consider to be homeless because HUD’s methodology has a rigid definition of “homelessness” and does not include people who are “doubling up”, which is when a homeless person sleeps at a friend or relative’s home. Of the 582,462 homeless people counted by HUD, 233,832 were completely unsheltered.
Every single homeless person in America is systematically excluded from participation in our society; however, the degree of exclusion varies from person to person as well as from jurisdiction to jurisdiction. The difference in protections can be stark because only some jurisdictions have passed a “Homeless Bill of Rights.” For example, under Rhode Island law, homeless individuals have a protected right to vote regardless of their housing status, but in Alabama it is illegal to ask someone for some change on the side of the road or in any other public space without a permit.
Methods of Equal Protection Constitutional Review—Generally
Equal Protection applies when reviewing government actions that draw distinctions between and among people based on characteristics such as race or gender. When reviewing laws such as the Alabama panhandling laws under the Equal Protection clause, a court must determine which basis of review to employ before making any decisions. Over the decades, the Supreme Court has developed a multi-tiered analysis of Equal Protection cases, resulting in three tiers: strict scrutiny, intermediate scrutiny, and rational basis review.
Strict scrutiny is by far the most restrictive of the three, and it is typically reserved for cases dealing with fundamental rights or suspect categories. This standard was first suggested in the near-mythic Footnote Four of the United States v. Carolene Products Co. case and further developed over time. Two of the biggest and most influential of these early cases were Skinner v. Oklahoma and Korematsu v. United States. In both cases, the Court applied strict scrutiny and achieved two different results, one overturning an unconstitutional law, and the other finding a series of government actions (now infamous for being a clear deprivation of the constitutional rights of an entire race of people) to be constitutional.
The middle ground of the three levels of scrutiny is intermediate scrutiny, where the Court will take a more careful look at government action, but not to the degree that it would employ under strict scrutiny. Intermediate scrutiny is most often applied in cases involving discrimination based on sex, as the Court first did in in 1976 with their decision in Craig v. Boren. For a law to survive intermediate scrutiny, it must be substantially related to an important governmental purpose.
The least restrictive and most deferential of the three is rational basis, which is the minimal level of scrutiny. All government actions challenged under Equal Protection must meet at least this minimal level of scrutiny, or they’ll fail. It’s a catch-all for cases that do not otherwise fall under strict or intermediate scrutiny. To pass this level of constitutional muster, a law must simply be rationally related to a legitimate government purpose.
Homelessness as a Suspect Category Under the Equal Protection Clause
One of the biggest and most common triggers for heightened scrutiny is when a statute draws a distinction based on “suspect classifications,” like race, gender, or national origin. When any of those suspect classifications is triggered, the appropriate level of security is applied. Strict scrutiny could arguably be triggered with the passage of anti-homeless legislation where it also impacts a fundamental right. However, I believe that heightened scrutiny should be automatically triggered when passing any legislation relating to homelessness, as homeless people easily meet several of the categories often used in determining a suspect class.
In order to argue for a suspect classification, the Court reviews certain factors, best laid out in City of Cleburne v. Cleburne Living Center, Inc. These factors include, but are not limited to, whether or not a group is “politically powerless,” a “discrete and insular minority,” “has historically been discriminated against,” and “has an immutable trait”. Categorically, homeless individuals cannot vote in the overwhelming majority of the States in the United States as they often do not have a fixed address and may not even have sufficient identifying documents; with this in mind, they easily fit the category of the “politically powerless.” In the broadest terms, homeless people fit the Carolene Products definition of a “discrete and insular minority,” as they are clearly a socially isolated minority group. The historic discrimination is as clear as day, and a grim tale as old as time.
Finally, there’s the question of immutability. Ideally, homelessness is not truly immutable, and one day could be eradicated. However, these factors are not dispositive, and it is not necessary or sufficient for a class to be denied heightened scrutiny because they don’t meet one of these factors.
Homeless People as They Are Viewed, and How They Could Be Protected
Currently, because the Court does not view homeless individuals as a suspect classification for the purposes of determining the standard of review, all cases restricting unsheltered people (absent any intersectional considerations such as race, national origin, or the infringement of a fundamental right) are relegated to rational basis review. When a law is enacted saying that no one may “loiter” on a city street for any period of time, the Court must only ask if that law is rationally related to a legitimate state purpose. A state can simply claim that it wanted to keep sidewalks clear and be covered under this standard of review. However, with the application of strict scrutiny to homeless people by defining them as a suspect class, state legislatures will have to think twice before passing blatantly unconstitutional bills. There should be no consideration of judicial economy or benefits to the state in this kind of decision, as it should be solely rooted in the considerations of what is right.
Moving forward, advocates for people experiencing homelessness should be augmenting their case against anti-homeless legislation with arguments for heightened scrutiny for legislation targeting homelessness, even when that legislation clearly infringes on other constitutional rights, such as the right to free speech when asking someone for a quarter.