Religious homeless shelters take the stage at Supreme Court Justices debate Ninth Circuit ruling that revived discarded “Lemon test”

WASHINGTON – The Supreme Court heard a case today involving an Oregon city’s laws that penalize sleeping on public property. In City of Grants Pass v. Johnson, the U.S. Court of Appeals for the Ninth Circuit ruled against Grants Pass, reasoning that the city’s laws imposed “cruel and unusual punishments” because there were not enough shelter beds to house the entire homeless population. The court, however, refused to count religious homeless shelters when it assessed whether there were enough beds available in the city. Becket filed a friend-of-the-court brief explaining how the decision to discount religious shelters was based on a wrongheaded legal standard. 

“Ignoring the good work of religious homeless shelters flouts basic human decency and common sense,” said Daniel Chen, counsel at Becket. “These ministries should not be treated as suspect when they are on the front lines helping solve our nation’s homelessness problem.”

Becket’s brief argues that the Ninth Circuit’s ruling relied on a misguided legal standard known as the Lemon test that the Supreme Court set aside in its 2022 decision in Kennedy v. Bremerton School District. For decades, the Lemon test had caused courts to incorrectly apply the First Amendment’s Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was disavowed, many lower courts continue to rely on it. Becket’s brief urges the Supreme Court to reject the Ninth Circuit’s misguided view of the Establishment Clause and reiterate that courts should apply a historical test based on what was understood as a religious “establishment” at the time of the Founding.

“Lemon’s specter still casts a dark shadow across the country, including the Ninth Circuit,” said Chen. “The Justices should remind courts that it has already banished this phantom doctrine from our nation’s law so that it can no longer haunt religious people and institutions.” 

A decision is expected by the end of the Court’s term in June.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219.