ABSTRACT

The Court’s recent decision in Grants Pass v. Johnson exposes hundreds of thousands of Americans to potential criminalization for engaging in basic life- sustaining activities. By ruling that the enforcement of ordinances prohibiting camping and sleeping in public does not violate the Eighth Amendment, the Court has overturned decades of Supreme Court precedent which held the opposite view.

As the number of unhoused individuals has increased, so too has the number of municipalities and states that criminalize the survival activities of houseless people. Many of these jurisdictions have established a complex network of severe anti-homeless ordinances that amount to an attack on houseless existence and should concern any advocate of fair and equitable governance.

With the Supreme Court’s recent departure from the Eighth Amendment protections established in Robinson v. California more than sixty years ago, this Article proposes that courts engage in heightened rational basis review of these ordinances, using “animus doctrine.” Unlike previous Supreme Court cases that struck down legislation merely for depriving a group of certain benefits, many of these anti-homeless ordinances aim to undermine the very existence of unhoused individuals. Legal theories of animus doctrine may provide some relief to the number of unhoused people who have faced displacement from their communities as a result of the Supreme Court’s decision in Grants Pass v. Johnson.