David Rudin∞

Abstract

In cities throughout the country, homeless individuals are continuously relocated from place to place and faced with the quandary that by engaging in basic life activities they are breaking the law. Many of these individuals and their legal advocates have argued that laws prohibiting the homeless from sleeping or sitting down in public make it effectively impossible for them to exist, violating the Eighth Amendment ban on cruel and unusual punishments and the right to travel derived from the Fourteenth Amendment. However, the vast majority of courts have rejected these arguments because they do not readily fit into existing doctrines.

This article argues that the Supreme Court’s decision in Obergefell v. Hodges provides a mold for homeless individuals and their advocates to recast challenges to anti-homeless ordinances and regularly-issued move-along orders into a more compelling form. In Obergefell, the Supreme Court recognized the right to same-sex marriage by looking at the confluence of several different lines of case law and allowing concerns for equality to guide its substantive due process analysis. This article follows the mode of substantive due process analysis that Obergefell endorsed and focuses on the connections between the right to movement, the Eighth Amendment, Fourth Amendment privacy concerns, the attention to inequality motivating applications of the right to travel, and the Court’s vagueness cases as they relate to vagrancy and public spaces. This article then looks at how a right to remain in public space can be applied to shield homeless individuals from mistreatment while maintaining law enforcement’s ability to regulate public spaces.

In Obergefell v. Hodges,1 the Supreme Court recognized the right to same-sex marriage by looking at the confluence of several different “principles and traditions”2 and allowing concerns for equality to guide its substantive due process analysis.3 The opinion appears to sound the death knell for the rival and, until Obergefell, seemingly predominant mode of substantive due process analysis endorsed in Washington v. Glucksberg.4 In Glucksberg, the Court required that any right be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” as well as a “‘careful description’ of the asserted fundamental liberty interest.”5 In Obergefell, by framing fundamental rights at a higher level of generality, Justice Kennedy drew on patterns in constitutional reasoning and connections among various rights that had been obscured under Glucksberg.6 Further, by reaffirming the close tie between the Due Process and Equal Protection Clauses, the Court signaled its openness to upholding the rights of marginalized groups through substantive due process.7

This breakthrough in gay rights and the accompanying overhaul of substantive due process analysis could have significant implications for the civil rights of a seemingly disparate group—the homeless. Faced with a declining supply of low-income housing and increasing numbers of laws criminalizing homelessness,8 homeless individuals and their legal advocates have brought a number of constitutional challenges to strike down ordinances criminalizing behavior in which homeless people must engage to survive. Advocates have argued that laws prohibiting homeless individuals from sleeping or sitting down in public make it effectively impossible for them to exist, violating the Eighth Amendment ban on cruel and unusual punishments and the right to travel derived from the Fourteenth Amendment. While the arguments have periodically found success, the vast majority of courts have rejected these claims.9 The arguments falter in part because they would require judges to accept novel applications of constitutional rights and invalidate decisions made through the democratic process, particularly by local communities. This article is not intended to detract from the force of these arguments, but rather, in light of their limitations and the opening that Obergefell has provided to develop substantive due process rights, to harness and recast them in a more direct, powerful, and persuasive form.

The Obergefell decision presents an opportunity for homeless advocates to push the courts to recognize a right that more directly protects against the trauma that homeless individuals endure on a daily basis at the hands of law enforcement—the right to remain in public space. Through the substantive due process analysis followed in Obergefell, advocates can vindicate the rights of the homeless in the face of measures to exclude them from public space that would be unthinkable if applied to the rest of the population. In doing so, courts can fulfill their duty to uphold equal protection, while avoiding the difficulties involved in recognizing additional classifications for strict scrutiny.10 The right to remain in public space is both a universal right that all Americans value dearly and a bulwark against deprivations that have starkly affected homeless people throughout history and, to a particularly dire extent, today.

Alone, none of the constitutional doctrines that homeless advocates have brought before the courts have been consistently extended to apply protection to homeless individuals. Yet together, modeled after the reasoning in Obergefell, the different clusters of liberties support a fundamental right to remain in public space that addresses the indignity continuously inflicted on homeless people. Part II reviews the claims that homeless advocates most frequently present and how courts have viewed these arguments. Part III analyzes the Supreme Court’s substantive due process jurisprudence and the state of the law after Obergefell. Part IV sets out the bases for a right to remain in public space modeled after the Court’s reasoning in Obergefell. Part V looks at the shape the right would take and explores two potential critiques.

Homeless advocates have achieved some success arguing that criminalizing homelessness violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.11 In most courts, however, the argument that the Eighth Amendment prohibits anti-homeless ordinances has foundered on several obstacles. First, courts have largely hewed to the plurality holding affirming the defendant’s conviction for public intoxication in Powell v. Texas—the Supreme Court’s last word on the meaning of the Cruel and Unusual Punishments Clause as it applies to criminalizing involuntary actions—and read Justice White’s opinion casting the fifth and deciding vote unduly narrowly.12 Second, several circuits have sidestepped the question entirely by holding that the Eighth Amendment does not attach before conviction. Third, even the most favorable rulings have limited the application of the Eighth Amendment to circumstances where no shelter is available, risking leaving homeless people no option where shelters are inaccessible or dangerous.

The Supreme Court first applied the Cruel and Unusual Punishments Clause to what states may criminalize in 1962 in Robinson v. California, when it invalidated a state statute that criminalized not only the possession or use of narcotics, but also addiction.13 The Court held that making the “status” of narcotics addiction a criminal offense, such that someone could be continuously guilty without having engaged in any discrete act within the state, inflicts a cruel and unusual punishment in violation of the Eighth Amendment.14 The Court noted that narcotics addiction is an illness that may be contracted innocently or involuntarily, and it compared the State’s actions to imprisoning someone for having a common cold.15

In Powell, the Court fractured over the appropriate application of Robinson to a chronic alcoholic’s challenge of his conviction for public drunkenness.16 The four Justices in the plurality read Robinson as holding that the Cruel and Unusual Punishments Clause requires that an individual commit an act before he is convicted of a crime.17 For the plurality, the relevant distinction was between conduct and status, not voluntary and involuntary conduct.18 The defendant had gone outside in a state of intoxication and could therefore be convicted.19 The Robinson Court had mandated the existence of an actus reus, the Powell plurality argued, not any particular constitutional doctrine of mens rea.20 In contrast, the four Justices in dissent concluded that Robinson stood for the proposition that criminal penalties may not be imposed on involuntary conduct.21 Powell was powerless to avoid drinking and, once intoxicated, he could not keep himself from appearing in public.22

Justice White cast the deciding fifth vote in Powell in favor of upholding the conviction. His concurrence rested on the narrowest understanding of the law, making it the only controlling precedent among the opinions in Powell.23 Justice White stated that there is no meaningful distinction between criminalizing an irresistible compulsion to use narcotics and criminalizing yielding to that compulsion.24 He voted to uphold the conviction, however, because Powell had failed to show that he was incapable of avoiding drinking in public.25 Justice White held out the possibility that a chronic alcoholic who is homeless could show that he was unable to avoid public places while intoxicated and therefore could not be punished for the involuntary act of bowing to his addiction and drinking.26

Several courts since have held that criminalizing conduct inseparable from homelessness violates the Cruel and Unusual Punishments Clause.27 In Jones v. City of Los Angeles, the leading case decided in favor of this view, the Ninth Circuit determined that five Justices on the Powell court—Justice Powell in his concurrence and four Justices in dissent—“understood Robinson to stand for the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”28 The Ninth Circuit found that the homeless “are in a chronic state that may have been acquired ‘innocently or involuntarily’” and that with no access to private spaces, sitting, lying, and sleeping are “universal and unavoidable consequences of being human” that “can only be done in public.”29 Thus, “by criminalizing sitting, lying, and sleeping, the City is in fact criminalizing Appellants’ status as homeless individuals.”30 The fact that City officials admitted to a severe shortage of shelter beds was critical to the court’s determination that homeless individuals were compelled to sleep on the street.31 While Jones can be cited as persuasive authority, it is not binding in the Ninth Circuit because the court vacated the opinion as a condition of the subsequent settlement.32

Despite homeless advocates’ sporadic success, most courts have declined to invalidate anti-homeless ordinances under the Eighth Amendment.33 In Tobe v. City of Santa Ana, the Supreme Court of California held that Robinson and Powell hinged on the distinction between status and conduct and did not deal with the line between voluntary and involuntary conduct.34 The court found that an ordinance banning camping and storage of personal property in public areas did not violate the Eighth Amendment because the ordinance proscribed conduct, not status.35 The court also expressed doubt that homelessness can be considered an involuntary status rather than a condition subject to an individual’s control.36 Similarly, a California district court in Joyce v. City & County of San Francisco found that homelessness is not a status and that Robinson and Powell turned on conduct, not voluntariness.37 The court feared that declaring homelessness a status would “significantly limit the States in their efforts to deal with a widespread and important social problem and would do so by announcing a revolutionary doctrine of constitutional law that would also tightly restrict state power to deal with a wide variety of other harmful conduct.”38

Even where courts suggest that they might be open to the analysis in Jones, claims fail without a showing of insufficient shelter capacity. In Joel v. City of Orlando,39 the Eleventh Circuit held that the availability of shelter space gave Joel the opportunity to comply with an ordinance criminalizing camping, and it distinguished Jones and Pottinger v. City of Miami40—a case preceding Jones that was decided similarly to Jones—on that basis. While Pottinger suggested that shelters must meet minimum standards of sanitation and safety to defeat an Eighth Amendment claim, other courts have not made similar provisos.41

Finally, some courts will not even consider an Eighth Amendment challenge due to a division over whether the Eighth Amendment is applicable before a conviction. This disagreement stems from divergent understandings of Ingraham v. Wright.42 In Ingraham, the Supreme Court held that the Eighth Amendment does not regulate state action “outside the criminal process.”43 It determined that because the context of disciplining schoolchildren is different from that of punishing criminals, disciplinary corporal punishment is not subject to Eighth Amendment scrutiny.44 As a result, both the Second and Fifth Circuits have held that the Eighth Amendment does not attach before conviction.45 In Davison v. City of Tucson, a district court in Arizona dismissed the homeless plaintiffs’ Eighth Amendment claim since none of them were convicted under the trespass statute under consideration.46 Other courts disagree with this reading of the Eighth Amendment.47

Advocates continue to push courts to accept the application of the Eighth Amendment in the context of homelessness. Notably, the Department of Justice Civil Rights Division submitted a Statement of Interest in Bell v. City of Boise48 in light of the conflicting lower-court case law to argue that Jones is the appropriate legal framework for analyzing the plaintiffs’ Eighth Amendment claims.49 However, the government filed similar amici briefs in the 1990s in Tobe and Joyce, yet the same debate continues today. If anything, the brief reflects the split between a growing consensus on the national level that criminalizing homelessness is counter-productive and inhumane, and the proliferation of anti-homeless ordinances among municipalities.50

Unlike homeless individuals’ Eighth Amendment claim, which revolves around the disputed holding of a single case, homeless people’s invocation of the right to travel requires tracing centuries of case law. While it does not appear expressly in the Constitution, the right to travel freely throughout the United States is an indisputable fundamental right that has at various times been attributed to the Article IV Privileges and Immunities Clause, the Commerce Clause, a corollary of national citizenship, the Equal Protection Clause, and the Due Process Clause.51 The uncertain origins of the right to travel and the Supreme Court’s silence on whether the right applies within state lines have led to ambiguity about the nature and scope of the right, including its relation to a more general right to movement. Advocates have continued to press courts to recognize that the right to travel precludes municipalities from passing laws that effectively exclude homeless people from living in a jurisdiction, but courts have for the most part declined to accept this more expansive reading of Supreme Court precedent.

The Supreme Court has found violations of the right to travel when laws discriminate against new residents from out of state. In Shapiro v. Thompson, the Supreme Court struck down as violative of the Equal Protection Clause a statute that imposed a minimum durational residency requirement in order to qualify for welfare benefits.52 The Court found that, by discriminating against residents who had lived in the state for less than a year, the statute infringed on the fundamental right to travel. Subsequently, the Court invalidated state laws that mandated a minimum duration of residency for eligibility to vote53 and a one-year stay in the state in order to receive free medical care.54 Each of these cases has recognized the right to travel as fundamental and subject to strict scrutiny, with the Shapiro Court even stating that the right is so important that it is “a virtually unconditional personal right.”55 The Court has expressly refrained from reaching the question of whether the right includes intrastate travel.56

While the aforementioned cases decided on right-to-travel grounds reveal a clear pattern of invalidating laws that directly discriminate against newcomers to a state, in dicta in cases involving the First Amendment and the void-for-vagueness doctrine, the Court has suggested that the right to travel may reach additional kinds of movement. In Kent v. Dulles, while declining to find authority for the Secretary of State to deny passports to Communist sympathizers, Justice Douglas wrote:

Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage . . . . It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.57

This articulation of the right to travel was dicta because the Court decided the case based on statutory construction.58 Nonetheless, the broad reference to movement “inside frontiers” implies that freedom of movement is not limited to crossing state lines. Then, in the course of striking down an anti-loitering statute on vagueness grounds in Kolender v. Lawson, the Court found that the statute “implicates consideration of the constitutional right to freedom of movement.”59 Unlike the laws in the Shapiro line of cases, the law in Kolender applied to everyone within the state of California without imposing any classifications based on length of residency.60

In the absence of a definitive answer from the Supreme Court on the applicability of the right to travel to intrastate travel, circuit courts have split on the issue. In King v. New Rochelle Municipal Housing Authority, the Second Circuit found the city’s residency requirement unconstitutional as applied to individuals seeking public housing.61 The court determined that “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.”62 Both the Third and Sixth Circuits have recognized “the right to travel locally through public spaces and roadways”63 after canvassing right-to-travel cases and finding that the right was “implicit in the concept of ordered liberty”64 and “deeply rooted in the Nation’s history.”65 In contrast, in Wright v. City of Jackson, the Fifth Circuit held that a fundamental right to intrastate travel does not exist, and it accordingly upheld a city ordinance requiring its employees to live within city limits under rational basis review.66

In order to invalidate anti-homeless laws under the right to travel, advocates for the homeless build upon decisions that have found a right to intrastate travel and argue that laws that leave homeless persons nowhere to go within a city burden their right to travel. This argument reached its high-water mark in Pottinger v. City of Miami, where a district court in Florida held that “the City’s practice of arresting homeless individuals for performing essential, life-sustaining acts in public when they have absolutely no place to go effectively infringes on their fundamental right to travel in violation of the equal protection clause.”67 In support of this proposition, the Pottinger court cited the Supreme Court in Memorial Hospital v. Maricopa County, where the Court determined that laws penalize travel if they deny a person a “necessity of life”68—such as free medical care—based on the duration of a person’s residence in a jurisdiction. The Pottinger court found that “forcing homeless individuals from sheltered areas or from public parks or streets affects a number of ‘necessities of life’—for example, it deprives them of a place to sleep, of minimal safety and of cover from the elements.”69 The court observed that the manner in which the city enforced ordinances against homeless individuals had the effect of preventing homeless people from coming into Miami and expelling those present.70

However, subsequent courts have made clear that Pottinger is an outlier.71 Under a drastically different reading of Memorial Hospital and the Supreme Court’s right-to-travel jurisprudence, in Tobe v. City of Santa Ana, the Supreme Court of California found that only a law that directly burdens the fundamental right of interstate travel is constitutionally infirm.72 The court explained that an ordinance imposes a direct burden when it creates “classifications which, by imposing burdens or restrictions on newer residents which do not apply to all residents, deter or penalize migration of persons who exercise their right to travel to the state.”73 In contrast, the court stated, an incidental impact on travel of a law having a purpose other than restricting migration to the state does not violate the right to travel.74 It also noted that states are not obligated to facilitate access to constitutional rights.75 The City of Santa Ana thus had no constitutional obligations to allow homeless individuals to stay on public property to enable their exercise of the right to travel.76

Other courts have issued decisions similar to that of the Supreme Court of California. In Joyce v. County of San Francisco, a district court in California found that, even assuming that there was an intrastate right to travel, police actions that adversely affect homeless people do not trigger strict scrutiny under the right to travel because they are facially neutral with respect to residence.77 In Davison v. City of Tucson, an Arizona district court determined that “[t]he Defendants’ action does not impede the travel of any of the named plaintiffs because they do not seek to travel anywhere; they seek only to remain.”78 Even the Second Circuit, which has recognized the right to intrastate travel, scarcely paused to consider a homeless plaintiff’s right-to-travel claim in Betancourt v. Bloomberg.79 In a challenge to an ordinance prohibiting erecting a structure in a public place, the court held that the statute does not impinge on the right to travel because it does not restrict interstate or intrastate freedom of movement.80

Attempts to extend the right to travel to the homeless thus suffer from doctrinal and policy limitations similar to those that undermine Eighth Amendment claims. The interstate travel doctrine does not naturally reach longtime homeless residents of a city or laws that do not affect the right to travel on their face. The more general freedom of movement language scattered throughout the case law does not reveal a clear pattern or rationale that judges can faithfully apply. Ironically, the Pottinger court’s remark that the Supreme Court has “long recognized the right to travel” inadvertently underscores the confused nature of the right.81 The length of the history of the right has served as a makeweight for conceptual clarity. Without an understanding of the core activity that the right to travel protects or any guidance from the Supreme Court, lower courts have difficulty extending the right.82 Moreover, judges fear the consequences of advancing a novel interpretation of the law that will hamstring law enforcement. The inexact fit between the legal doctrine and the plight of homeless persons offers judges an easy out.

Homeless advocates have pursued two courses in arguing that cities have violated homeless individuals’ right to travel. In the approach taken in Pottinger, the plaintiffs prevailed on the court to adopt a large-scale outlook that the city’s enforcement of its laws had the cumulative effect of rendering it impossible for homeless individuals to live in Miami legally.83 The second approach, also pursued in Pottinger, has been to attempt to constitutionalize the life-sustaining activities that homeless people are compelled to perform in public.84 The Pottinger court found that the plaintiffs offered no legal support for their contention that the court should recognize a fundamental right to undertake life-sustaining activities, particularly when the “Supreme Court has long recognized the right to travel as a fundamental constitutional right.”85 Other courts have also declined to recognize rights to engage in specific life-sustaining activities.86 Yet, with the ascendance of the mode of substantive due process analysis endorsed in Obergefell, substantive due process is now a promising avenue to curtail the criminalization of homelessness.

Substantive due process has long been a contested field of constitutional interpretation.87 In the first half of the twentieth century, the Supreme Court interpreted the term “liberty” in the Due Process Clause of the Fourteenth Amendment to contain rights including the right to make decisions about the education of one’s children88 and the right to procreate.89 At the same time, it found economic rights in the terms “property” and “liberty,” most infamously in its decision to strike down wage and hour laws under the right of contract in Lochner v. New York.90 When the Court’s intervention to protect the freedom of contract led to a clash with President Roosevelt’s New Deal agenda and a near constitutional crisis, the Court recanted its economic liberty jurisprudence, retreating to a forgiving rational basis standard in West Coast Hotel Co. v. Parrish.91

Starting with the Warren Court era, the doctrine of substantive due process experienced a second life through the Court’s recognition of privacy rights. Initially, the Court developed a theory of a penumbra of interrelated rights, whereby the concepts at the periphery of rights—the First, Third, and Fourth Amendments—together supported a right to privacy.92 In subsequent cases, the underpinnings for unenumerated rights migrated to the word “liberty” in the Due Process Clause.93 Additionally, the Equal Protection Clause and the Due Process Clause appeared together in judicial treatment of unenumerated rights, buttressing each other, even as the Court recognized rights principally upon the foundation of one clause or the other.94 Justice Harlan provided the classic explication of this mode of constitutional interpretation in a dissent in Poe v. Ullman (which was eventually adopted by a majority of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey),95 where he wrote that liberty “cannot be determined by reference to any code” nor is it “a series of isolated points pricked out,” but that it “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”96 Justice Harlan envisioned that judges would supply “content to [that] Constitutional concept” through the rational outcome of the “judicial process” based on “grounds which follow closely on well-accepted principles and criteria.”97 In the following years, in cases brought under the Fourteenth Amendment involving the right to use contraception,98 the right to sexual intimacy,99 and the right to abortion,100 the Court built upon the notion of a private space for autonomous decisions.

Beginning with a footnote in a dissent in Michael H. v. Gerald D.101 and culminating in the majority opinion in Washington v. Glucksberg,102 the conservative side of the Court developed an alternative method for interpreting substantive due process.103 In Glucksberg, the Court arrived at the conclusion that there was no right to physician-assisted suicide by formulating the interest at stake at a “careful” or “precise” level and examining history to see whether there was a tradition of protecting or denying protection to the asserted right.104 It resisted the plaintiffs’ argument to uphold a right to control one’s own body in favor of the more specific right to physician aid in ending one’s own life.105 In looking to history, it found laws condemning physician-assisted suicide, rather than an accepted historical practice.106

The tension between the common-law approach to interpreting substantive due process exemplified by Justice Harlan’s dissent in Poe and the formulaic methodology set forth in Glucksberg remained unresolved in subsequent cases.107 The decision in Lawrence v. Texas108 upholding a fundamental right to sexual intimacy used the more expansive reading of the Due Process Clause associated with the progressive side of the Court, but Justice Kennedy did not once reference Glucksberg, leaving the extent to which the opinion heralded the predominance of the Poe methodology unclear.109

The Supreme Court’s decision in Obergefell v. Hodges limited the applicability of the Glucksberg methodology and embraced the more open-ended common-law approach to substantive due process associated with Justice Harlan’s dissent in Poe.110 While reiterating the same themes of progress and evolving conceptions of liberty that he had propounded in Lawrence, Justice Kennedy this time cited Justice Harlan’s Poe dissent and, while he did not expressly overrule Glucksberg, he dealt it a major blow:

Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.111

Justice Kennedy went beyond disavowing the Glucksberg approach with regard to “marriage and intimacy.” By referring to “marriage and intimacy” as only one of multiple rights that the Court has deemed fundamental, he left room for future argument that Glucksberg is ill-suited for other areas of law.112 Under one interpretation, Lawrence and Obergefell can be distinguished from Glucksberg on the grounds that same-sex sodomy and same-sex marriage are applications of the more general rights of intimacy113 and marriage,114 respectively, whereas the asserted right to physician-assisted suicide in Glucksberg does not stem from an obvious higher-level right.115 If this distinction becomes salient in future cases, it may support the recognition of the right to remain in public space, which originates in a long-recognized and recurrent right to movement. A second interpretation leads to an even farther-reaching conclusion: that the language “may have been appropriate” seemed to hint that Glucksberg was wrong when it was decided.116

The Obergefell Court arrived at the right of same-sex couples to marry by situating its analysis in the Court’s broader understanding of the term “liberty” in the Fourteenth Amendment.117 By beginning with the meaning of liberty, the Court was able to engage in an interpretive exercise similar to the analysis of the language of other provisions of the Constitution, rather than using the formulaic method specially designed for unenumerated rights set forth in Michael H.118 The Glucksberg Court had purported to “rein in the subjective elements”119 in due process review through a mechanical definition of the right and assessment of any relevant tradition of the exercise of that right.120 In contrast, the Poe dissent approach is “guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements.”121

Before laying out the foundations for the right to marry and the imperative to extend it to all citizens, including same-sex couples, Justice Kennedy emphasized several fundamental precepts of constitutional interpretation that are of particular importance when applied to the Fourteenth Amendment and his understanding of the Due Process Clause:

[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.122

Liberty is an expansive value that the Framers left open to develop through the progressive understanding of successive generations. Over the previous decades, the term had become imbued with the promise of protecting people’s ability “to define and express their identity.”123

Justice Kennedy employed a common-law approach by drawing upon four bases for affirming a right to same-sex marriage, rather than limiting the inquiry to tracing a specific tradition. First, he relied on the premise that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”124 Second, he wrote of the principle that “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”125 Third, he expanded upon the basis that marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”126 Fourth, he explained, “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”127 This mode of analysis is significant because it looks to a “confluence of various traditions” rather than a specific tradition of a narrowly-defined right.128 Kennedy brought together diverse bases that span from historical to existential in order to arrive at his conclusion.

The reasoning demonstrated in Obergefell is potentially momentous not only for its analysis of liberty, but also for the manner in which it interweaves liberty and equal protection.129 A division in the Court between viewing the Equal Protection Clause and the Due Process Clause as distinct or as intertwined mirrors the Court’s split between adherents of the liberty analysis in Glucksberg and the Poe dissent. In his dissent in Obergefell, Chief Justice Roberts criticized the majority for lacking “anything resembling our usual framework for deciding equal protection cases” and failing to analyze marriage laws using rational basis review.130 While the majority stated that the marriage laws are unequal and that “this denial to same-sex couples of the right to marry . . . serves to disrespect and subordinate them,”131 it did not make a finding that the law is not rationally related to a legitimate state interest.132 However, far from being anomalous, the majority’s eschewal of a separate equal protection analysis is precisely what is required under its view of the two clauses.133

In his comment on Obergefell, Kenji Yoshino argues that Obergefell fortified the approach endorsed in Lawrence of what he refers to as “antisubordination liberty.”134 In both cases, the Court could have struck down the statutes solely on equal protection grounds. However, states could have worked around an equal protection ruling by prohibiting sodomy for both same-sex and opposite-sex participants following such a ruling in Lawrence or refusing to grant marriage licenses to any couples following a similar decision in Obergefell.135 By ruling on due process grounds, the Court opted for a more effective and durable means of furthering equality interests. As the Court explained in Obergefell, “[i]n any particular case one Clause may be thought to capture the right in a more accurate and comprehensive way, even as the two Clauses may converge on the identification and definition of the right.”136 Thus, rather than existing independently from the due process analysis as Justice Roberts would require, the equality analysis motivated the recognition of the liberty and influenced the shape it would take.137

The “synergy”138 that the Court describes between liberty and equality may suggest a path forward for civil rights movements beyond gay rights.139 The Court has not afforded a new group heightened scrutiny for equal protection purposes since 1977,140 and it is unlikely to do so today in light of its concern about proliferating candidates for new classifications in our increasingly multicultural society.141 By working under the rubric of liberty, the Court can further the ends of equality without the broad implications of recognizing a suspect class. Rather than watching society splinter into varied classes, the Court can help bridge divides through the language of universal rights.142 Equality concerns, meanwhile, can also provide a meaningful guide for the Court because they not only militate in favor of expanding liberties to protect a marginalized group, but constrain the expansion of rights where equality will not be furthered.143 In supporting his description of the Equal Protection Clause and the Due Process Clause as interconnected, Justice Kennedy cited a line of cases that either rested on both grounds or were decided on only one basis but in which the threat to one right accentuated the violence done to the other.144 Obergefell builds upon this history and makes clear “that in the common law adjudication of new liberties, the effect on those subordinated groups should matter.”145

Like the right to same-sex marriage, the right to remain in public space would be a right cast in universal terms and shaped by the deprivations faced by a specific group. Before Obergefell, advocates had to argue for the right to remain out of the history of the right to travel. While they were able to make a compelling case, it fell short in part because it was a poor fit with the right to interstate travel and did not directly address the affront to those whose rights were purportedly being abridged. The police’s continual displacement of homeless people could also have been framed as discrimination on the basis of housing status, for only people perceived as or known to be homeless are told to move, while other people are left free to engage in activities or simply rest idly.146 Advocates scarcely so much as raised this equal protection claim because of the courts’ antipathy to the argument that poverty is a suspect class147 or that housing is relevant to either equal protection or fundamental rights.148

Following suit from Obergefell, the right to remain can draw upon multiple bases. While each strand alone might not qualify as a carefully-defined right rooted in tradition that fits the Glucksberg framework, together multiple strands demonstrate the protection that the Constitution affords individuals to remain in public space. First, the Supreme Court’s invocation of a right to free movement throughout United States history indicates the importance of freedom of motion and its converse, the right to remain. While the uncertain relation of a freedom of movement to the right to travel previously limited the significance of the more general and unmoored right, under the Obergefell model, references to a right to free movement underscore an important component of liberty woven into multiple opinions. Second, the Eighth Amendment preserves the ability to exist free from state punishment, even as the present doctrine poses technical hurdles to realizing this underlying norm. Third, the Fourth Amendment’s emphasis on privacy and the failure of the Fourth Amendment to protect homeless individuals indicates the need to apply its values through a different means. Fourth, the concern for equality built into the Court’s right-to-travel jurisprudence lends credence to the existence of a right that ensures equal access to public space. Obergefell suggests that courts should analyze liberty and equality concerns in tandem.149 Even where a law may not formally violate equal protection, principles of equality should shape how a court analyzes the liberty interest at stake. Finally, beyond the four substantive bases for a right to remain, the Court has signaled its concern with broad state control of behavior in public that affects marginal groups by striking down laws on vagueness grounds.

A simple thought exercise illustrates that most people already enjoy a right to remain without being forced to consider the importance and fragility of the right. A housed person leaves her home and enters public space with the understanding that she is entitled to do so. The sidewalks, streets, and plazas are housed individuals’ collective space. A person with a home can sit on a bench, wander through a neighborhood, or stand and gaze across the street. Or, if she is tired, she can lean against a building as long as she is out of the way of people walking down the sidewalk or passing through doorways. If a police officer came up to her and ordered her to move, she would be startled and would either protest this unjustified infringement on her autonomous decision-making and existence, or comply, thinking that moving comes at no cost because there are an infinite number of other spaces to go.150 However, if this occurred repeatedly, the deprivation of this person’s capacity to freely inhabit public spaces would reduce her ability to engage in daily activities. Both the limitations on her actions and the assault on her autonomy itself would have a dramatic effect on her life and self-image.

In his dissent in City of Chicago v. Morales, Justice Scalia lambasted Justice Stevens’s description of loitering as a constitutional right.151 “Of course every activity,” Justice Scalia wrote, “even scratching one’s head, can be called a ‘constitutional right’ if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without ‘rational basis.’”152 Justice Scalia likely chose scratching one’s head as an example to illustrate the ludicrousness, in his view, of elevating loitering to the status of a constitutional right because head scratching is a trivial activity that is not protected by the Constitution.153 Yet the example of head scratching in fact reinforces Justice Stevens’s defense of unenumerated rights; it is unimaginable that a legislature could deprive citizens of so basic and constitutive a human behavior. Even so, on a daily basis, homeless individuals are faced with a deprivation that is far more severe, yet similarly confounding. In cities across the country, homeless individuals are denied the ability to be in the only area available to them—the public.

Applied across the general population, the pervasive control of access to public space currently imposed on homeless individuals would cause an uproar. Blanket restrictions on movement strike at the core of people’s liberty to carry out their lives in the outside world and associate freely. Yet such measures would not disrupt the average person’s entire life, for a housed citizen is still free to do as she pleases inside the privacy of her home. For a subset of the population, however, there is nowhere to retreat from anti-homeless ordinances and ad hoc police directives to move along. For homeless people, the street is both the public and the private. Thus, the way these regulations of public access are applied presents a paradox. The very people who most need to remain in public space are those whose ability to do so is most under attack.154

In City of Chicago v. Morales, the last time the Supreme Court considered the existence of a right to remain in public space, three members of the Court recognized a “constitutionally protected liberty” in loitering.155 In their dissents, Justices Scalia and Thomas understood Justice Stevens, the author of the plurality, to be arguing for recognition of a fundamental right, and they forcefully dismissed the suggestion that such a right exists. In response to Justice Stevens’s interpretation of a line of right-to-travel cases, Justice Thomas wrote, “[T]he plurality’s approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis.”156 Yet, following Obergefell, a majority of the Court now appears to favor precisely the approach that Justice Thomas disparaged in his Morales dissent.157 A reexamination of Supreme Court precedent involving a right to free movement, using the analytical approach applied in Obergefell, reveals common reasoning across the cases and demonstrates the Court’s longstanding commitment to safeguarding freedom of movement. Under Obergefell, the right to freedom of movement can, in turn, form a building block of a fundamental right to remain in public space.

The Court has only found violations of the right to travel when laws make classifications that penalize movement between state lines, yet, in dicta, the Court has gestured toward a broader freedom of movement. In Kent v. Dulles, the Court, following the canon of constitutional avoidance, found that the Secretary of State had exceeded his statutory authority by withholding passports from Communists.158 While the holding of Kent rested on statutory interpretation, Justice Douglas emphasized the centrality of the right to travel to the American way of life.159 Sourcing the right to travel in the liberty of the Fifth Amendment, Justice Douglas extolled freedom of movement as “part of our heritage” and described it as socially indispensable.160

Then, in Papachristou v. City of Jacksonville, the Court defended the more general right to freedom of movement independently of the formally-recognized interstate right discussed in earlier cases.161 Writing for a unanimous court, Justice Douglas invalidated an archaic vagrancy law on the grounds that it was unconstitutionally vague.162 The Court held that the ordinance failed to give individuals fair notice that their conduct was prohibited and encouraged arbitrary and discriminatory enforcement by allowing the police “unfettered discretion.”163 Describing the activities, such as “wandering or strolling,” that the ordinance proscribed, Justice Douglas, in an oft-quoted passage, wrote:

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.164

Justice Douglas did not invoke the right to travel in Papachristou the way he had in Kent, where it was directly implicated. Rather, he focused on the state’s imposition of a lifestyle on populations positioned outside the mainstream of society.165 For Justice Douglas, the values animating the indisputably fundamental right to travel applied with equal force to the threat to free movement in Jacksonville. His analysis of the right to free movement stands on its own, indicating that it has a life distinct from the more particular right to travel.

In Kolender v. Lawson, the Supreme Court again referred to a right to free movement, not simply in crossing state lines, but also in inhabiting public space.166 The Court invalidated a statute that required people who loiter or wander on the streets to provide a “credible and reliable” identification and account for their presence when stopped by a police officer who has reasonable suspicion under Terry v. Ohio.167 Writing for the majority, Justice O’Connor concluded that the statute was vague because it failed to clarify what was meant by “credible and reliable” identification.168 To sustain a facial challenge to a law, a court must find that the law “reaches a substantial amount of constitutionally protected conduct” or is “vague in all of its applications.”169 In Kolender, Justice O’Connor based her finding of vagueness on the risk that the ordinance posed of curtailing First Amendment liberties and further noted, “Section 647(e) implicates consideration of the constitutional right to freedom of movement.”170 Justice O’Connor’s remark on the threat to the right to freedom of movement is noteworthy because the ordinance at issue did not involve interstate travel or discrimination on the basis of residency, as required in the Shapiro line of cases.171 While Justice O’Connor cited Kent and Aptheker, she did not draw a distinction between the right to travel as it appeared in the two passport cases and the right to freedom of movement implicated in Kolender.

Most recently, in the plurality opinion in City of Chicago v. Morales, Justice Stevens argued that there is a right to loiter by connecting the Papachristou opinion with the preceding right to travel cases.172 In the part of his opinion joined by a majority of the Court, Justice Stevens struck down on vagueness grounds a Chicago ordinance prohibiting “criminal street gang members from loitering with one another or with other persons in any public place.”173 The Court concluded that the ordinance failed to give ordinary citizens fair notice to conform their conduct to the law174 and failed to give officers minimal guidance.175 Then, in a section of his opinion joined only by Justices Souter and Ginsburg, Justice Stevens wrote:

[A]s the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. William v. Fears, 179 U.S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972). Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 357 U.S. 116, 126 (1958), or the right to move “to whatsoever place one’s own inclination may direct” identified in Blackstone’s Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).176

Justice Stevens put the right to remain on equal footing with the freedom of movement discussed in dicta in Kent. In Kent, Justice Douglas made no distinction between freedom of movement within frontiers and the fundamental right to travel. This invites the inference that in Morales, Justice Stevens intended to stretch this continuum even further by identifying a fundamental right not only to move within borders, but to remain in a place of one’s choosing.177This logic would be in line with that of the First Amendment, where the Court has found that the right to freedom of expression must include a corollary right to refrain from speech.178

Justice Stevens left the import of the right to loiter uncertain. Responding to criticism from Justices Scalia and Thomas that he was inventing a fundamental right, Justice Stevens wrote that the dissenting Justices “incorrectly assume . . . that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process.”179 Justice Stevens declined to elaborate on the level of scrutiny that the liberty interest warrants or whether it was violated in Morales, since he determined that the law was impermissibly vague regardless.180

While the ambiguous scope of the right to free movement and a concomitant right to remain would reduce the rights’ significance under the Glucksberg analysis, their importance becomes clear when they are analyzed under Justice Kennedy’s approach in Obergefell. Justice Kennedy followed the mode of reasoning from Justice Harlan’s dissent in Poe v. Ullman, in which Justice Harlan proposed that we situate rights on a “rational continuum.”181 Justice Harlan believed that rational constitutional decision-making must involve judges abstracting rights from the particular settings in which the rights were pronounced so that they can see the connections between them.182 Although the right to freedom of movement did not feature in the holdings of cases like Kent, Kolender, Papachristou, and Morales—which were instead decided on the basis of statutory construction, the First Amendment, or vagueness—the right shaped the Court’s reasoning. When studied side by side, these cases demonstrate the centrality of a right to movement. While the freedom of movement does not alone protect the right to remain in public space, it is a principle that should guide courts’ reasoning in the areas upon which it touches.

The Eighth Amendment speaks most directly to the oppression that the homeless face. In Robinson, the Supreme Court determined that “[e]ven one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”183 Yet in Powell, four Justices in the plurality balked at what they feared would be prohibiting punishment for acts compelled by a condition that a defendant is powerless to change and thereby adopting a “constitutional doctrine of criminal responsibility.”184 Although advocates have argued that the State’s exertion of its coercive power to penalize the condition of homelessness is cruel and unusual,185 following the fractured decision in Powell, lower courts have expressed their discomfort with adopting a view of the Eighth Amendment that would thrust courts into the role of regulating substantive criminal law by declaring certain conditions a “status.”186 While the Supreme Court’s Eighth Amendment jurisprudence in this area has stalled, through the Fourteenth Amendment, the Court has preserved an autonomous sphere for the individual outside of state control with an eye toward marginalized groups. The mode of reasoning employed in Obergefell contains the promise that the values underlying the Court’s interpretation of the Eighth Amendment can inform the evolution of substantive due process.

Justice White’s concurrence in Powell has special meaning in the context of homelessness. Justice White concurred in the judgment because he concluded that Powell had failed to show that he could not have avoided ending up in public after drinking.187 Justice White held out the possibility, however, that chronic alcoholics who are homeless could have Eighth Amendment claims if they can show that it is impossible for them to avoid public places while they are intoxicated.188 Public intoxication would be an unavoidable consequence of these individuals’ alcohol addiction, and they could not be punished without violating the Eighth Amendment.189 In Joyce, the lawsuit seeking an injunction against San Francisco’s concerted effort to enforce a set of ordinances against homeless individuals, the plaintiffs argued that Justice White had already applied the Eighth Amendment to the homeless.190 The Joyce Court dismissed the plaintiffs’ argument as “sheer speculation” based on dicta.191 While Justice White’s anticipation of future cases involving homeless persons may not determine a court’s Eighth Amendment analysis, it accentuates the lack of existing constitutional protection for homeless people and underscores the urgency of recognizing a sanctuary for homeless people in substantive due process, where the various strands of constitutional analysis converge.

Courts have also refused to accept Eighth Amendment claims on doctrinal grounds that would not apply if the values of the Eighth Amendment were instead employed to inform a Fourteenth Amendment liberty. Certain circuits have interpreted Ingraham to preclude the Eighth Amendment’s application to state actions preceding conviction,192 but substantive due process would enable courts to consider the Eighth Amendment interest at stake without the same constraint. Other courts have required Eighth Amendment claimants to prove that homeless people truly have no choice but to engage in certain conduct in public by demonstrating a shortage of shelter space.193 Although this requirement makes sense in the abstract, it fails to account for the dangerous and unsanitary conditions in many shelters194 that lead large numbers of homeless people to instead choose to sleep on the streets.195 A right to remain in public space would place the decision with the homeless people who must endure hazardous shelters, rather than a court that lacks the information or competence to gauge a shelter’s habitability or monitor its compliance with basic standards of safety.196

The holistic mode of analysis employed in Obergefell reveals an overlap between the Eighth and Fourteenth Amendments. While the Eighth Amendment prevents the State from using the criminal code to coerce an individual to change a condition that is beyond her control, the Fourteenth Amendment preserves an individual’s space to make personal decisions. The prohibition on inhumane compulsion and the preservation of basic choice are the obverse of one another. Just as the Fourth Amendment informed the development of a right to privacy, the Eighth Amendment supports a basic right to remain in public space that extends to all citizens, including those without homes.

The Fourth Amendment is a vital safeguard of individuals’ rights to live free from government coercion outside of a reasonable and justified infringement.197 While homeless individuals have successfully asserted their Fourth Amendment rights when law enforcement has seized and destroyed their property,198 courts have not extended the Fourth Amendment to protect homeless individuals’ presence in public areas. This was not the only possible reading of the Supreme Court’s interpretation of the Fourth Amendment. In Katz v. United States, the Court determined that the government’s recording of the defendant’s conversations in a telephone booth violated the defendant’s reasonable expectation of privacy in the words he uttered in the booth and therefore constituted a search and seizure under the Fourth Amendment.199 Writing for the majority, Justice Stewart explained that the parties’:

effort to decide whether or not a given “area,” viewed in the abstract, is “constitutionally protected” deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.200

Katz’s focus on people not only serves an important function in updating the Fourth Amendment to accommodate technology and the challenge that it poses to a facile alignment of physical space and privacy, but also points to a connection between the Fourth Amendment and the Due Process Clause.

The Fourth Amendment seeks to preserve a space for the individual beyond arbitrary governmental intrusion, but it fails to accomplish this purpose for the homeless because of the way that Katz has been applied over the past several decades.201 The Court has adopted the framework that Justice Harlan set forth in his concurrence in Katz as a more concrete formulation of the principles articulated in the majority opinion: “there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”202 Courts have disposed of homeless individuals’ claims to Fourth Amendment protection in public places where they have stored their belongings by finding that legal violations, such as trespassing, defeat the second, objective prong.203 Although courts have applied Katz in ways that defeat homeless individuals’ Fourth Amendment claims, the Court’s concern for individuals’ ability to maintain an inner sanctum free from official oversight resonates in other areas of constitutional law. Just as the Fourth Amendment’s failure to reach homeless individuals recalls the limitations of the right to freedom of movement and the Eighth Amendment, the role of individual autonomy in Fourth Amendment jurisprudence also parallels the values animating those other constitutional protections.

The Fourth Amendment has been interpreted to exclude not only homeless individuals’ privacy interests, but also their ability to move around in public spaces. The Fourth Amendment only covers police interactions with civilians where there is a seizure. However, an interaction is not considered a seizure when a reasonable individual would feel free to terminate the encounter.204 Without a property interest to anchor a homeless individual to a particular location, a police officer’s directive to move along from a public place does not trigger any Fourth Amendment interest, since complying with the order will end the interaction and not deprive the homeless individual of any property.205 The values contained in the Fourth Amendment and the void left by its incomplete coverage underscore the importance of recognizing a right to remain within the Due Process Clause.

The Supreme Court has struck down classifications that penalize people who have recently moved to the state.206 In finding restrictions on the right to travel to be impermissible, the Court has accounted for the effect of poverty and inequality. In Edwards v. California, Memorial Hospital, and Shapiro, the Court described the manner in which the classification would acutely impact indigent migrants to the state.207 Thus, while the Court will not impose an affirmative obligation on the state to protect social and economic rights,208 and it is unlikely to recognize poverty as a suspect class,209 it can look to its precedent considering poverty in determining permissible limitations on the right to travel.

At the same time, courts have rejected claims for the right to travel because they do not believe that the government has an obligation to recognize a maximally protective and encompassing right even when it has concerns about the rights and liberties of the poor. Poverty thus sits uncomfortably with the professed universal scope of fundamental rights. The Court has dealt with this tension in part by relying on the state action doctrine, holding that the state is not responsible for remedying or dealing with inequalities outside of its immediate responsibility.210 The right to remain fits within this sensitive area because it does not impose affirmative obligations on the state, yet it allows for inequality to enter the Court’s consideration. Recognition of this fundamental right will permit all individuals to preserve the barest degree of the liberty that the Court has defined, a self-definitional autonomy.211

The right to remain in public space could help restore the promises of the Constitution to a group of Americans that has been effectively excised from the Supreme Court’s deliberations. Coupled with their political powerlessness, poor people’s lack of traction in the courts has led them to fall into what Julie Nice calls a “dialogic default.”212 Other scholars studying the evolution of constitutional law have argued that constitutional interpretation evolves with society.213 While recognition by the courts could fuel political mobilization, and social movements could push the courts to include poor people in applications of constitutional rights, the silence on both fronts has stymied progress.214 Nice argues that the courtroom doors have closed on the poor since Dandridge v. Williams, when the Supreme Court announced that it would apply the most deferential form of rationality review to governmental actions dealing with economics and social welfare.215 She finds it especially problematic that, although the Supreme Court has never squarely considered whether poverty is a suspect classification, in cases following Dandridge the Court has assumed that it is not and thus deprived poor people of a full airing of their case for heightened scrutiny.216 Poor people have also had trouble mobilizing because they lack resources and political sway and are a diffuse group.217

The Obergefell Court’s consideration of the Due Process and Equal Protection Clauses together presents a model for how poverty and homelessness can shape the case for a right to remain even though indigence has never received formal heightened scrutiny. Alongside the four bases for recognizing the fundamental right to same-sex marriage, the Court looked at the harm that the denial of marriage inflicted on same-sex couples. Inequality inflected the Court’s analysis even though gays have not been afforded heightened scrutiny. Similarly, indigence should inform courts’ consideration of the right to remain in public space. Anti-camping ordinances, anti-loitering laws, and police orders to move along systematically work to the disadvantage of a specific group—the homeless. Cities have targeted homeless people through ordinances of various forms, from the vagrancy ordinance in Papachristou to anti-camping ordinances today. Vilification in newspapers and hate crimes persist.218 As courts weigh the persuasiveness of the preceding bases for a fundamental right, they should consider the extent to which these laws and police practices subordinate a particular group.

Substantive due process cases have tended to revolve around intimate associations, privacy, and the home. While freedom of movement, the Fourth Amendment, the Eighth Amendment, and the strain of equality in the right to travel can together form four bases that parallel those supporting the right to same-sex marriage in Obergefell, the right to remain would nonetheless be a sharp turn in the development of substantive due process over the past several decades since Griswold v. Connecticut and Roe v. Wade. Applications of unenumerated rights, from the use of contraceptives to same-sex intimate relations, have all looked inward to the home rather than outward to the street. However, the lack of a public-facing substantive due process does not mean that the Court has declined to protect against infringements on “liberty” that neither violate enumerated rights nor implicate the home or intimate relationships. Instead, the Court has maintained a presence in this sphere through procedural rather than substantive means. Vagueness doctrine—the means by which the Court struck down suspect laws in Papachristou,219 Kolender,220 and Morales221—could more accurately be described not as a procedural doctrine, but as a veiled judgment.

In his classic law school note, Anthony Amsterdam argued that courts use vagueness to further substantive commitments.222 Amsterdam explained that vagueness is less concerned with indefinite language than with “the creation of an insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms.”223 Robert Post built upon Amsterdam’s conception of vagueness by arguing that the Supreme Court employs vagueness doctrine not only to force legislatures to revise laws to be clearer or more precise, but also to limit what social orders governments can impose on citizens.224 Post argued that it was in fact apparent who would be subject to the strictures of the Jacksonville ordinance in Papachristou. The Court noted that “poor people, nonconformists, dissenters, [and] idlers[] may be required to comport themselves according to the lifestyle deemed appropriate by Jacksonville police and the courts.”225 While vagueness supposes that individuals cannot discern a standard by which they can make judgments about what behavior is illegal, in Papachristou the Court identified a standard of bourgeois values and deemed it an impermissible basis for the law.226 While vagueness has nothing intrinsically to say about individuals’ conduct in public spaces, it served as a vehicle by which the Court not only policed language, but also checked the type of laws that states can impose on public behavior.227

The close connection between vagueness and substantive due process can be seen through the development of two seminal cases in each category: Papachristou v. City of Jacksonville and Roe v. Wade.228 Early drafts of Papachristou were based not on vagueness, but on substantive due process.229 Justice Douglas’s draft opinion recognized the activities criminalized in the Jacksonville ordinance, including wandering or strolling, as fundamental rights.230 By the time of his final version, Justice Douglas had deleted all reference to the Ninth Amendment or the Bill of Rights, and, while his affirmation of alternative lifestyles remained, his opinion now rested on vagueness.231 Meanwhile, Justice Blackmun’s early draft opinion in Roe relied on void-for-vagueness doctrine.232 Justice Brennan and Justice Douglas pressed Justice Blackmun to reach “the core issue” of privacy in Roe rather than rely on vagueness.233

After reading Justice Douglas’s draft Papachristou opinion, Justice Brennan wrote to him,

As I recall[,] vagueness was the consensus ground at conference. Will the ‘fundamental rights’ approach scare away votes? It keys in so perfectly with my views in the abortion cases that I fervently hope not. Does the possible risk argue for holding up circulation until Harry’s Texas case comes around[?]234

Justice Brennan worried that other, more conservative Justices would perceive the commonalities between the two opinions and reconsider joining Roe in order not to recognize a doctrine that encompassed Justice Douglas’s Papachristou opinion too.235 Justice Stewart would not sign on to Papachristou until Justice Douglas removed the broader, rights-based argument and specifically required that Justice Douglas delete a reference to the Bill of Rights in the last sentence of the opinion.236 The other Justices did not express their views in preserved memoranda.237

Part of the appeal of the vagueness doctrine, that it is a value-free mechanism for protecting individuals from unchecked governmental control, is also the reason that it is not a fully satisfying home for the intuition that we have a right to be in public spaces. It checks the form of legislation, but it does not regulate the substance. For instance, the Morales Court struck down the Chicago ordinance prohibiting people from loitering with known members of a gang in a public place on the basis that it was unconstitutionally vague.238 This holding served the interest of free activity in public because it forced the government to craft a narrower statute that did not cover as wide a population or range of conduct. However, the City of Chicago subsequently passed an ordinance that more clearly defined loitering.239 Vagueness is thus no protection from specific laws like anti-camping ordinances or move-along orders based on laws that are sufficiently clear.

The substantive component of vagueness does not directly support the conclusion that there should be a fundamental right to remain. Rather, it answers the concern that reviewing local laws that regulate activity in public space and inhibit the freedom of unpopular groups is not within the purview of the judiciary. Outside of the dicta mentioning potential implications for a right to free movement, the holdings in the vagueness cases do not amount to precedent supporting the recognition of a particular right. Instead, they show that the judiciary has previously operated in this area and that a more transparent form of reasoning may be desirable.

The right to remain speaks directly to the injustice perpetrated against homeless individuals and the importance of the basic liberty to remain in a place of one’s choosing without being rousted from a familiar area or herded from place to place. However, one might think that such a right still falls shy of capturing the essence of the universal right being recognized, which is not so much a right to remain as a right to space. Homeless people have a right to a place where they can exist. With no private space of their own to complement the public, they face being driven out of an area entirely.240 Further, they have the same right to be in public spaces that the rest of the population enjoys. Additionally, after Obergefell, it can be argued that positive rights are possible.241

However, a right to space has an Achilles heel that the right to remain does not have. While a right to remain preserves an individual’s autonomous choice to decide where to be, there is no restriction on where the space must be in the positive formulation of the right. Robert Ellickson’s proposed scheme for balancing the needs of homeless and non-homeless urban dwellers shows the need to embed personal choice in the right and not reduce it to space alone.242 Ellickson discusses a hypothetical municipality that zones land as green, yellow, and red.243 In green zones, which make up five percent of the city, no panhandling or “bench squatting” would be permitted.244 This would serve as a retreat for individuals who are unusually sensitive to what Ellickson considers disruptive behaviors.245 Yellow zones, comprising ninety percent of the city, would have more lenient codes than green zones, but ban “chronic panhandling and bench squatting.”246 Finally, panhandling and squatting would be permitted in five percent of the city, called red zones.247

The dangers of Ellickson’s proposal illustrate the necessity of recognizing a right to remain in public space. Concentrating homeless individuals in one corner of the city would expose them to the same threats that render many shelters unlivable. When they have the liberty to choose an area in a city to spend their time, homeless people are able to get to know a group of peers and surround themselves with people they trust. Grouping a mass of homeless people in one crowded area exposes them to violence and intimidation.248 Homeless women would be particularly vulnerable to abuse.249 In addition, the people who live or work in the areas designated as red zones would face a concentration of destitution outside their doors and in the places they frequent that is unjustified and likely the result of a lack of wealth and resulting influence with city officials.250 Finally, segregating the city permits people with homes to go about their lives unaware of the misery cordoned off several blocks away from them, which otherwise would be obvious.251 While the state may not be under an affirmative legal obligation to provide homeless people with housing,252 removing homeless people from view decreases their chance of support through the democratic process.253

Courts have been reluctant to recognize constitutional rights that would protect the homeless for fear of tying the hands of law enforcement. In Joyce, the court warned that declaring homelessness a status under the Eighth Amendment would have a “devastating impact on state and local law enforcement efforts.”254 While it behooves courts to consider the real-world implications of their rulings, it is nonetheless courts’ duty “to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool.”255 Anything less would be an abdication of the role of the third branch to enforce constitutional rights and defend individuals from government excesses. While commentators defend the need for police discretion and quality-of-life laws,256 it is far from clear that liberty and safety are incompatible.257

For one, little indicates that recognizing a right that extends protections to homeless individuals in their interactions with the police would limit law enforcement’s ability to preserve public safety. A debate about such a right under the Fourteenth Amendment would instead counterbalance the lack of judicial consideration of police decisions under the Fourth Amendment. The Supreme Court has found no reasonable expectation of privacy in many situations, recognized many police-citizen encounters as consensual, upheld consent searches without requiring that police officers alert civilians of their right to say no, and applied the deferential standard of “reasonable suspicion” to police actions such as “stop and frisk.”258 Police have ordinances at their disposal, such as prohibitions on disorderly conduct or harassment, on which they can rely when appropriate.259 The Fourth Amendment also does not reach police encounters such as directions for people to move along.260

Homelessness elicits strong reactions among housed citizens because of concerns about decorum and safety. Under the theory of broken windows policing, the incidence of “quality-of-life” offenses, such as loitering, littering, unreasonable noise, or public drunkenness, contributes to a feeling that law is not taken seriously in a community, which in turn leads residents to commit more serious crimes.261 While the adoption of quality-of-life policing coincided with a sharp decline in crime rates,262 the correlation between the two has not been established.263 Other cities across the nation that did not institute the broken windows theory experienced similar drops in crime, cities including New York employed other strategies such as tracking crime through CompStat and increasing police presence in certain areas, and developments like a decline in the use of crack cocaine contributed to dramatically safer cities.264 Nonetheless, newspapers like the New York Post have dehumanized homeless people and cast them as symbols heralding a return to the disorder of the 1980s and 1990s.265

Although the benefits of quality-of-life policing and criminalizing homelessness are unclear, the harms are apparent. Even meeting the philosophy of broken windows policing on its own turf and considering the community’s sense of law enforcement, broken windows may backfire. Overly broad police discretion encourages discriminatory policing that impedes law enforcement by undermining the law’s legitimacy among those who are targeted, including minorities and poor people.266 Members of those groups that feel alienated are less likely to provide leads to the police, testify as witnesses for the prosecution, serve on juries when called, and convict defendants when they do serve.267 Those who distrust the fairness of the legal system are discouraged from playing by the rules, thus compounding the risk of crime in neighborhoods that already suffer from socioeconomic disadvantage.268

Enforcing laws against homeless people is also counter-productive. Most homeless people are unable to afford fines for violating routine quality-of-life offenses and are subsequently sent to jail.269 Their criminal records may then cost them eligibility for housing and public assistance benefits, cripple their efforts to find jobs, and impair their credit.270 The extensive harm to homeless individuals takes on an absurd air when one compares the cost of warehousing homeless people in prison compared to providing them with supportive housing.271

A right is only meaningful to the extent that it is upheld against laws or activities that threaten it. Courts determine the constitutionality of most statutes or regulations by assessing whether they are rationally related to a legitimate government purpose.272 Under this standard it is nearly a foregone conclusion that courts will defer to legislative decision-making.273 However, where a law implicates a fundamental right, courts will assess whether the law is necessary or narrowly tailored to promote a compelling governmental interest.274 It would be impractical to subject laws that affect the right to remain in public space to strict scrutiny because of the need to regulate public spaces. Traffic lights or parade grounds are routine regulations of public space that need not endure the rigors of strict judicial scrutiny. Compared to the right to interstate travel, for instance, the frequency with which the right to localized travel is controlled and the multiplicity of conflicting interests in public space would render a rigid regime untenable.

Courts and commentators have considered two alternative standards for a right to intrastate travel in lieu of strict scrutiny: intermediate scrutiny borrowed from time, place, and manner restrictions on speech275 and the undue burden test used for restrictions on access to abortion.276 In Lutz v. City of York, the Third Circuit borrowed from free-speech doctrine, which applies intermediate scrutiny to time, place, and manner restrictions on speech.277 The court considered intrastate travel and free speech analogous in the sense that “unlimited access to public fora or roadways would result not in maximizing individuals’ opportunity to engage in protected activity, but chaos.”278 It upheld an ordinance prohibiting cruising under intermediate scrutiny, finding that it was “narrowly tailored to meet significant city objectives.”279

By failing to distinguish between incidental and direct burdens on the right to travel on public fora, the Lutz approach may be both over- and under-protective.280 In free speech law, statutes that impermissibly target types of speech are subjected to strict scrutiny as content-based restrictions. Intermediate scrutiny then only applies to content-neutral speech.281 Without this sorting mechanism in right-to-intrastate-travel cases, intermediate scrutiny applies to curfews and traffic signs alike.282 Further, the crux of the time, place, and manner test—that there is an available alternative channel of communication283—undermines the protections afforded by a right to remain in public space. Courts may instead fall into the segregated scheme laid out by Ellickson.284 Thus, access to space may not be interchangeable in the way that modes of communication can be.285

Instead, the undue burden standard from Planned Parenthood v. Casey may be a more suitable test.286 In Planned Parenthood v. Casey, the Court held that a statute or regulation constitutes an undue burden where it “has the purpose or effect of placing a substantial obstacle in the path” of the exercise of the right.287 The Court has applied a comparable standard informally in the right to marry, the right to vote, and the right to travel.288 The undue burden standard could aid courts in distinguishing between laws that are needed for public order and do not pose notable threats to people’s exercise of the right to remain in public space and laws that substantially interfere with the exercise of their rights.

The way such a standard would function can be seen through application to laws and police activity common in municipalities across the United States: obstruction ordinances, anti-camping ordinances, and move-along orders. First, an obstruction ordinance is not directly targeted at homeless individuals, but applies across a wide range of people and activities who may interfere with people moving down city streets or parks. The purpose is the daily functioning of a city, and while its enforcement might affect homeless people whose belongings block public passages, streets are wide enough that it is unlikely to prevent them from being outside in a significant way.

Second, an anti-camping or anti-sleeping ordinance raises immediate red flags because the only population affected is the homeless. For example, in Dallas, Texas, it is unlawful to sleep or “doze” in a public place.289 A city can raise legitimate concerns such as public safety, sanitation, and aesthetics, but the evident purpose of displacing homeless people and the substantial effect that the ordinance has on the ability of homeless people to remain in public space should subject the statute to strict scrutiny. The city’s concerns would not outweigh the fundamental right to remain in public space when there are other means for furthering these objectives, such as scheduling intermittent cleaning or increasing police presence.

Finally, move-along orders can be challenged when, as in Pottinger, there is a showing of a policy of repeatedly directing people to move.290 Unless such a directive implicates a fundamental right, it is difficult to challenge because of the deference that courts allow police judgment.291 For instance, according to a survey of homeless individuals conducted by the Coalition on Homelessness in San Francisco, seventy percent of the respondents had been forced to move from a public space in the last year.292 With nowhere else to turn but public space, seventy percent of the respondents who reported being asked to move said that they moved down the street or around the corner, stayed in the same spot, or walked around and returned once the police left.293 The recognition of the right to remain would put law enforcement to the task of articulating a justification for their actions or finding an alternative. A court faced with proof of a pattern of move-along orders should conclude that the practice is an undue burden on a homeless individual’s right to remain in public space and determine whether the city has offered a compelling justification for its actions. If the city does not meet its burden, the court should issue an injunction.

Obergefell presents an opportunity to recast challenges to anti-homeless ordinances and regularly-issued move-along orders in a more robust form that directly addresses the indignities that these government actions inflict on homeless individuals. Most courts have concluded that the Eighth Amendment and the right to travel do not protect homeless people from such treatment. The right to remain in public space does not readily fit into an existing doctrine, but rather sits at the intersection of several constitutional provisions. The mode of substantive due process analysis that Obergefell endorsed encourages courts to perceive the connections between the right to movement, the Eighth Amendment, the Fourth Amendment privacy concerns, and the inequality motivating applications of the right to travel. Further, a close look at the Supreme Court’s vagueness cases as they relate to vagrancy and public spaces reveals that the development of substantive due process primarily in the private realm was not a historical inevitability. Rather, vagueness contains substantive components that can be excavated and applied in the context of homelessness today. As a state where the public meets the private, homelessness is a uniquely suitable and circumscribed place for this development.

In The New Equal Protection, Kenji Yoshino writes that while the turn to substantive due process in Lawrence v. Texas was born of necessity, substantive due process offers advantages over equal protection.294 Although “pluralism anxiety” has curbed the Court’s recognition of new suspect classifications, the Court has advanced the same goals of legal equality through recognition of individual rights.295 Rather than highlighting differences among groups in order to justify heightened scrutiny, fundamental rights underscore our commonalities.296 Just as pluralism anxiety has shaped the Court’s response to discrimination against gay people, the Court’s reluctance to wade into economic issues through socioeconomic rights or equal protection has curtailed its and lower courts’ treatment of the criminalization of homelessness. Upholding a right to remain in public space steers clear of imposing positive obligations on government and establishing poverty as a suspect class. It would bring homeless people relief from treatment as criminals and remove an obstacle to efforts to provide housing and support services. At the same time, the right to remain in public space strikes a universal chord that can restore some agency to homeless individuals and emphasize the civic obligation of those who have private property rights on which to fall back.