Supreme Court should affirm role of religious homeless shelters Justices urged to reject Ninth Circuit ruling that revived discarded “Lemon test”

WASHINGTON – Becket filed a friend-of-the court brief at the Supreme Court today in a case 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’s brief explains how the decision to discount religious shelters was based on a wrongheaded legal standard.

A group of homeless people sued the city of Grants Pass, Oregon, in 2018, challenging local laws that penalize sleeping on public property. Breaking the laws can result in penalties of up to several hundred dollars and repeat offenders can be barred from all city spaces. In 2023, the Ninth Circuit ruled against Grants Pass, relying on Martin v. City of Boise, one of its previous decisions regarding anti-camping laws. The court reasoned that the city’s laws violated the Eighth Amendment’s prohibition on “cruel and unusual punishments” because the city did not have enough shelter beds for its homeless population. As part of its analysis, however, the court refused to count religious homeless shelters in determining whether there were enough beds available. 

“The homeless problem on the West Coast is bad enough without adding culture-war attacks on religious groups who are helping the destitute,” said Eric Rassbach, vice president and senior counsel at Becket. “It is wrong to treat religious homeless shelters as inherently suspect instead of as inherently helpful in solving this massive social 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 overruled in its 2022 decision in Kennedy v. Bremerton School District. For decades, the Lemon test had caused courts to incorrectly apply the Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was overturned, many lower courts, including ones within the Ninth Circuit, 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.

“Justice Scalia once called the Lemon test a ghoul that kept rising from the dead, and the Ninth Circuit’s decision is proving him right,” said Rassbach. “The Justices should do whatever it takes to destroy this zombie doctrine once and for all so that it never rises again.” 

The oral argument in the case will be heard on April 22, and 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.