Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated

No. 23-175

In the

Supreme Court of the United States

CITY OF GRANTS PASS, OREGON,

Petitioner,

v.

GLORIA JOHNSON, et al.,

ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE KAIROS CENTER

FOR RELIGIONS, RIGHTS AND SOCIAL JUSTICE

AND OTHER RELIGIOUS ORGANIZATIONS

IN SUPPORT OF RESPONDENTS

John A. Barkmeyer

Skadden, A rps, Slate,

Meagher & Flom LLP

1444 New York Ave. NW

Washington, DC 20005

David T. Kidd

Skadden, A rps, Slate,

Meagher & Flom LLP

One Manhattan West

New York, NY 10001

Charles F. Smith

Counsel of Record

Emily B. K aplan

Marie E. Sheehan

Rachel A. Cohen

Skadden, A rps, Slate,

Meagher & Flom LLP

155 North Wacker Drive

Chicago, IL 60606

312-407-0700

charles.smith@skadden.com

Eben P. Colby

Skadden, A rps, Slate,

Meagher & Flom LLP

500 Boylston Street

Boston, MA 02116

Counsel for Amici Curiae

328216

i

TABLE OF CONTENTS

Pages

INTERESTS OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................. 9

ARGUMENT .......................................................... 11

1. Shared Religious Tradition Informs

What Punishment Is Cruel and

Unusual ......................................................... 11

2. Sacred Religious Texts and Teachings

Direct Society to Protect Poor and

Homeless People, Not to Punish Them........ 12

a. Both Abrahamic and Nontheistic

Traditions Affirm the Dignity

and Protection of the Poor and

Homeless.................................................. 13

b. The Teachings Of Our Nation’s

Early Faith Leaders Affirm the

Dignity and Protection of the Poor

and Homeless .......................................... 18

3. Agreement Across Faith Leaders in

This Country Today Continues

Adherence to These Principles ..................... 21

4. The Grants Pass Ordinances Punish

The Existence of Homeless People And

Violate These Longstanding and

Universally Shared Religious Traditions .... 22

CONCLUSION ....................................................... 23

ii

TABLE OF AUTHORITIES

Cases:

Pages

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963)........................................... 12

Atkins v. Virginia,

536 U.S. 304 (2002)......................................10, 12

Edwards v. Aguillard,

482 U.S. 578 (1987)........................................... 12

Hall v. Florida,

572 U.S. 701 (2014)......................................11, 12

Ingraham v. Wright,

430 U.S. 651 (1977)........................................... 11

Kennedy v. Louisiana,

554 U.S. 407 (2008)..................................9, 11, 23

Madison v. Alabama,

139 S. Ct. 718 (2019)......................................... 11

Marsh v. Chambers,

463 U.S. 783 (1983) ............................................. 22

Miller v. Alabama,

567 U.S. 460 (2012)........................................... 12

Robinson v. California,

370 U.S. 660 (1962)........................................... 11

Timbs v. Indiana,

139 S. Ct. 682 (2019)......................................... 11

Town of Greece v. Galloway,

572 U.S. 565 (2014)........................................... 21

iii

Trop v. Dulles,

356 U.S. 86 (1958)........................................11, 23

Zorach v. Clauson,

343 U.S. 306 (1952)........................................... 12

Statutes and Other Authorities:

U.S. Const. Amend. VIII ...................................12, 23

Grants Pass Municipal Code § 5.61.010 ................. 22

Grants Pass Municipal Code § 5.61.030 ................. 22

1 John 3:17 (New Revised Standard Version) ...... 15

Anantanand Rambachan, Hinduism, in THE

HOPE OF LIBERATION IN WORLD RELIGIONS

114 (Miguel A. De La Torre ed., 2008) ............. 18

Babylonian Talmud, Sanhedrin 37a ..................... 13

Charles Chauncy, Charity to the distressed

members of Christ accepted as done to

himself, and rewarded, at the JudgementDay, with blessedness in God's everlasting

kingdom. A sermon, preached the Lord'sDay after the death of Mr. Edward Gray.

Who departed this life July 2nd, 1757, in

the 84th year of his age, OXFORD TEXT

ARCHIVE (1757),

https://ota.bodleian.ox.ac.uk/repository/x

mlui/bitstream/handle/20.500.12024/N06

202/N06202.html?sequence=5&isAllowed

=y .................................................................. 20-21

iv

Deuteronomy 15:7 (New Revised Standard

Version) ............................................................. 14

George Whitefield, THE GREAT DUTY OF

CHARITY RECOMMENDED, PARTICULARLY

TO ALL WHO PROFESS CHRISTIANITY. A

SERMON PREACHED AT KENNINGTONCOMMON, AND AT GLOUCESTER &C (1740) ........ 19

Gilbert Tennent, sermons 82,

“De Misericordia pauperibus”

(On mercy towards the poor,)

“De confessione peccati” (On confessing

sin) and “De faciendo pacem cum

proximis” (On making peace with your

neighbors), 1746 or 1747, PHILADELPHIA

CONGREGATIONS EARLY RECORDS,

https://philadelphiacongregations.org/reco

rds/item/PHS.TennentSermons082 ................. 20

Isaiah 10:2 (New Revised Standard Version) ....... 16

Isaiah 3:15 (New Revised Standard Version) ....... 16

John Wesley, Sermon 116: Causes of the

Inefficacy of Christianity, reprinted in 3

SERMONS ON SEVERAL OCCASIONS 259

(1834)................................................................. 19

Jonathan Edwards, Christian Charity: Or,

The Duty of Charity to the Poor,

Explained and Enforced, reprinted in 1

THE WORKS OF JONATHAN EDWARDS 173

(Edward Hickman ed., 1835).......................20, 21

Leviticus 25:35-38 (New Revised Standard

Version) ............................................................. 17

v

Luke 4:18-19 (New Revised Standard

Version) ............................................................. 16

Matthew 25 (New Revised Standard

Version) ........................................................15, 20

Matthew 25:42-45 (New Revised Standard

Version) ............................................................. 15

Nehemiah 5:11 (New Revised Standard

Version) ............................................................. 14

Norman B. Gibbs et al., In Our Nature: The

Kenotic Christology of Charles Chauncy,

85 HARV. THEOLOGICAL REV. 2, 217, 217

(Apr. 1992) ........................................................ 20

Proverbs 29:7 (New Revised Standard

Version) ............................................................. 14

Ṣaḥīḥ al-Bukhārī, Belief – ‫ﻛﺘﺎب اﻹﯾﻤﺎن‬,

Hadith no. 50 .................................................... 17

1

INTERESTS OF AMICI CURIAE 1

Amici are national religious bodies and

institutions, interfaith networks, and some of the

most prominent and historic houses of worship in

America. Amici and the traditions they represent

have guided millions in faith-based practice on and

understandings of morality and cruelty throughout

our nation’s history. They share a deep and longestablished interest in the protection of poor and

dispossessed people, and unite here to protect

homeless people in this case.

Amici’s moral values and religious traditions

insist that every human being be treated with

inherent worth and dignity, including and especially

the poor. This belief is at the core of how amici’s

faith traditions understand our shared existence

and religious practice.

Guided by these principles, amici understand

that punishing and expelling poor and marginalized

people from their communities for maintaining a

place to live is contrary to the most fundamental

principles of amici’s faith traditions and prohibited

by the Eighth Amendment’s prescription against

1

Pursuant to Supreme Court Rule 37.6, no counsel for any

party authored this brief in whole or in part, and no person

or entity other than amici or their counsel made a

monetary contribution intended to fund the brief’s

preparation or submission.

2

“cruel and unusual” punishment. In support of this

conclusion, amici here provide this Court with the

consistent teachings and practices of their traditions

to this effect.

American Friends Service Committee (AFSC) is

a global humanitarian organization founded in 1917

by the Religious Society of Friends (Quakers) but

open to all. Guided by the Quaker belief in the

divine light of each person, AFSC works with people

of all faiths and backgrounds to challenge unjust

systems and promote lasting peace. Currently,

AFSC has a presence in 18 countries and operates

over 20 U.S. programs addressing community needs,

as well as advocacy offices in Washington DC and at

the United Nations. For over a century, AFSC has

worked on issues related to housing justice—

including addressing, preventing, and attempting to

end homelessness. It has consistently opposed

policies and practices that criminalize poverty and

homelessness.

Bend the Arc: A Jewish Partnership for Justice is

the nation’s leading progressive Jewish voice

empowering Jewish Americans to be advocates for

the nation’s most vulnerable.

Bend the Arc

mobilizes Jewish Americans beyond religious and

institutional boundaries to create justice and

opportunity for all, through bold leadership

development, innovative civic engagement, and

robust progressive advocacy. Bend the Arc views the

housing crisis as a pressing economic and racial

3

justice issue, and advocates for policy changes that

protect the homeless instead of criminalizing them.

Friends General Conference (FGC) is an

association of Quakers in the United States and

Canada founded in 1900, with approximately 32,000

members in over 650 congregations. Worldwide,

Quakers now number around 400,000. Quakerism

emphasizes the direct relationship between people

and God. Throughout history, Quakers have sought

the challenging task of living out founder George

Fox’s (1624-1691) values of “answering that of God

in every one” and “seeking the inner light” in each

person, both individually and as a community.

Following this path has led Quakers to be early

advocates against slavery, for women’s rights, for

better prison conditions, and for harmonious

relationships between peoples and nations. Quakers

believe everyone is equal, and are inspired by faith

to change the systems that cause injustice and that

prevent us from living as genuine communities.

Quaker faith requires working for people who suffer

injustice, including the homeless who are

marginalized members of our society. FGC therefore

condemns any attempt to punish and expel homeless

people for merely existing in our society.

Hindus for Human Rights (HfHR) is a

progressive Hindu organization grounded in the

liberatory history and possibility of Hindu faith.

HfHR counts thousands among its engaged audience

in the United States and worldwide, including many

faith leaders and mandirs, community leaders and

4

organizations, students, and more. As pluralist

Hindus, HfHR recognizes the inherent divinity in

and equality of all people, and stands firmly against

the criminalization of anyone on the basis of factors

out of their control, including those without homes.

Consistent with Hindu faith, HfHR believes that

society has a duty to care for all and invest in

responses to homelessness that create social safety

nets rather than a carceral state.

Interfaith Assembly on Homelessness and

Housing (IAHH) is an association of nearly 50 faith

organizations in the New York City area that, since

its founding in 1985, has worked with and advocated

on behalf of those who have experienced

homelessness.

Inspired, strengthened, and

sustained by faith, IAHH is committed to

confronting the unconscionable and unacceptable

reality of homelessness. IAHH works in partnership

with those who have experienced homelessness and

mobilizes communities of faith to empower all people

to advocate for public policies that strive to

eliminate homelessness and the transformation of

society. It therefore strongly opposes any effort to

criminalize an individual for the condition of being

without a home or shelter.

Kairos Center for Religions, Rights and Social

Justice is a national organization committed to

building a movement to end poverty, led by the poor,

with more than two decades of experience in poorled organizing, Biblical and theological scholarship

and leadership development among poor and

5

religious communities. Rooted in the prophetic

Christian tradition, the Kairos Center is housed at

Union Theological Seminary, with a network of

community and religious leaders from prominent

faith denominations, churches and houses of

worship, interfaith networks, national social justice

organizations and community-based organizations

that spans every region of the country. When we

read the Bible, we are reminded that what to do

“unto the least of these,” we do unto Christ. Our

moral values insist that we must treat everyone as

if they are an embodiment of God, especially the

poor. This commitment is consistent across faith

traditions, including that there is nothing about our

sacred texts and teachings that support punishing

the poor and homeless for being poor and homeless.

Metropolitan A.M.E. is an African Methodist

Episcopal Church founded in 1872 in Washington

D.C. Known locally and nationally, Metropolitan

A.M.E. took a leading role in anti-slavery advocacy

in the mid-19th century, including the harboring of

runaway enslaved persons. Along with being a

major center of worship, Metropolitan A.M.E. has

been in the forefront of the civil, cultural, and

intellectual life among African Americans.

Throughout its history, the congregation has been

home to or hosted many Americans dedicated to

justice and equity, including Frederick Douglass,

Ida B. Wells and Booker T. Washington.

It

continues to answer God’s call for the present age by

advocating for the disadvantaged.

Because

Metropolitan A.M.E. remains dedicated to justice

6

and equality and condemns punishing someone for

who they are, it denounces the cruel and inhuman

laws that punish homeless people for their existence,

merely because they have nowhere else to go.

National Council of Jewish Women (NCJW) is a

grassroots organization of 210,000 advocates who

turn progressive ideals into action. Inspired by

Jewish values, NCJW strives for social justice by

improving the quality of life for women, children,

and families and by safeguarding individual rights

and freedoms. NCJW’s Principles state that “[a]

democratic

society

must

end

systemic

marginalization and provide support for individuals

in need and under-resourced communities,” and in

our Resolutions, we resolve to work for “[f]air

housing laws, policies, and programs that promote

equitable access to healthy, safe, affordable, quality

housing.” Consistent with Jewish faith, these

Principles

and

Resolutions,

and

NCJW’s

longstanding commitment to ensuring everyone has

the full range of necessary health care, food, and

shelter, NCJW condemns punishing homeless

people for who they are.

National Clergy Council of National Union of the

Homeless is a group of faith and moral leaders

across the country who are committed to the

struggles of poor and homeless people in their

communities and nationwide, including ending

homelessness. The National Union of the Homeless

is an organization made up of current and formerly

homeless individuals and families. The Clergy

7

Council draws on their Christian and interfaith

traditions to offer moral guidance for this struggle,

including the teachings of sacred texts and ethical

principles that emphasize compassion, justice, and

solidarity. Because these teachings underscore the

inherent dignity and worth of every human being,

laws that imprison and punish homeless people for

their condition of homelessness offend our moral

commitments and are contrary to both our faith

beliefs and ethical principles.

NETWORK Lobby for Catholic Social Justice was

founded more than 50 years ago by a group of

Catholic sisters to advocate for legislation,

regulations, policies, and programs that promote the

common good and support our firm belief that all

people have inherent dignity and the right to basic

life essentials.

Guided by the fundamental

principles of Catholic social justice, NETWORK

remains deeply committed to advancing federal

policies that protect our nation’s most vulnerable

communities. The cornerstones of NETWORK’s

agenda include the principles that basic housing is

an essential right, and that the nation’s criminal

justice system must be grounded in fairness and

justice. The criminalization of homelessness flies in

the face of both of these core principles and is a cruel

abuse of our nation’s criminal justice system that

cannot be countenanced by either the U.S.

Constitution or simple morality.

Riverside Church in the City of New York is

associated with both the American Baptist Churches

8

and the United Church of Christ and home to 1200

Christian members. Riverside Church finds the

teachings of Jesus clear about human responsibility

to uplift the downtrodden, which includes those who

are homeless. Its religious tradition understands

that Jesus and his parents constituted an unhoused

family seeking safe space. Following His birth in

Bethlehem, Jesus and his parents fled their home

country and the tyrannical rule of King Herod to live

in Egypt for several years as refugees. It is out of

this stark beginning, and a life lived under the

oppressive Roman Empire, that the religion Jesus

sparked values the care of the last, the least, and the

left out.

Following these teachings, Riverside

Church believes that laws which punish the

homeless are not faithful to the God who is faithful

to us.

Sisters of Mercy of the Americas are a group of

about 2000 religious women from the United States,

Central and South America, the Caribbean, Guam

and the Philippines who join together with our

associates and coworkers to do the work of mercy.

Sheltering the homeless is critical work of mercy.

When the first house of Mercy opened in 1827 in

Dublin, Ireland, one of its primary responsibilities

was to provide housing for homeless women and

children. Catherine McAuley, the founder of the

community, was inspired by the life of Jesus and

envisioned a just world for all. Catherine told her

sisters to “respond to the needs of the times.” In a

country of such wealth as ours, the community of

mercy takes up this work through our vow of service.

9

We care for each person’s safety and dignity and

strive to restructure unjust systems. The Justice

Team at Sisters of Mercy facilitates this through

collaboration,

education,

advocacy,

and

encouragement of our continual work for persons

who are homeless. We thus resist the condemnation

of those who are poor and homeless.

Unitarian Universalist Association (UUA) is a

religious denomination formed in 1961 by the union

of the American Unitarian Association and the

Universalist Church of America, with membership

comprising of more than 1,000 congregations

nationwide. Many UUA member congregations

trace their history to America’s founding churches,

first gathered by the Pilgrims and Puritans in the

1600s. The UUA welcomes all persons and draws its

faith from many sources and is enriched by religious

pluralism. A key principle of the UUA is the

affirmation and promotion of the inherent worth and

dignity of every person, which is in opposition to

laws that punish homelessness.

SUMMARY OF ARGUMENT

1. Tenets from the religious traditions of amici

inform the moral standards of American society and

therefore what is protected by our guarantee against

“cruel and unusual” punishment under the Eighth

Amendment, which “necessarily embodies a moral

judgment.” Kennedy v. Louisiana, 554 U.S. 407, 419

(2008) (citation omitted). This Court has found the

moral perspective of the broad religious community

10

to be a relevant factor in determining the Eighth

Amendment’s limits and prescriptions on what

constitutes “cruel and unusual” punishment. See

Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).

2. Every major world religion includes directives

to care for the poor. Sacred texts and teachings

across traditions, geographies, and time periods—

including those present among the early faith

leaders

of

this

nation—address

these

responsibilities. While these directives may not

impose a duty on the State, they inform what the

State can punish under the Eighth Amendment.

These universal principles reject as immoral the

punishment of poor and unsheltered people for the

consequences of their poverty or homelessness.

3. Religious leaders today, continuing the long

moral arc of their traditions, have insisted that these

values are at the core of amici’s faith traditions; it

remains well established among these traditions

that punishing those who are homeless for being

poor and unhoused is cruel, violates the dignity of

man, and offends humanity.

4. Because protection and care for homeless

people holds a central place among amici’s shared

religious traditions, the Grants Pass ordinances that

punish poor and homeless people for living in the

only place left to them depart from the moral wisdom

of these traditions, and by consequence from the

standards of the Eighth Amendment.

11

ARGUMENT

1. Shared Religious Tradition Informs

What Punishment Is Cruel and Unusual

The Eighth Amendment places “limitations” on

the “power of those entrusted with the criminal-law

function of the government.” Timbs v. Indiana, 139

S. Ct. 682, 687 (2019) (citations omitted). Its

guarantee against “cruel and unusual punishment”

imposes a “substantive limit[]” on what behavior

government can make criminal, Ingraham v.

Wright, 430 U.S. 651, 667 (1977) (citing Robinson v.

California, 370 U.S. 660 (1962) (plurality opinion)),

“in light of the basic prohibition against inhuman

treatment,” Trop v. Dulles, 356 U.S. 86, 101 (1958).

This limit is determined by what “offends

humanity,” Madison v. Alabama, 139 S. Ct. 718, 727

(2019) (citations omitted), and requires that punitive

authority must “be exercised within the limits of

civilized standards,” Trop, 356 U.S. at 100. The

“basic concept underlying the Eighth Amendment is

nothing less than the dignity of man.” Hall v.

Florida, 572 U.S. 701, 708 (2014) (quoting Trop, 356

U.S. at 100).

Thus, the Eighth Amendment’s limit on cruel

and unusual punishment “necessarily embodies a

moral judgment.” Kennedy, 554 U.S. at 419 (citation

omitted). To make that judgment, this Court

“draw[s] [the Eighth Amendment’s] meaning from

the evolving standards of decency” of the nation.

Trop, 356 U.S. at 100. The “standards of American

12

society as a whole” guide this inquiry. Hall, 572

U.S. at 725 (Alito, J., dissenting). As this Court has

recognized, religious teachings and beliefs embody a

“broad[] social and professional consensus” and

therefore inform the limits imposed by the moral

dimensions of the Eighth Amendment. Atkins, 536

U.S. at 316 n.21. After all, “religion permeates our

history.” Edwards v. Aguillard, 482 U.S. 578, 607

(1987) (Powell, J., concurring); Abington Sch. Dist.

v. Schempp, 374 U.S. 203, 212-13 (1963) (“We are a

religious people whose institutions presupposed a

Supreme Being” and “[t]he history of man is

inseparable from the history of religion” (quoting

Zorach v. Clauson, 343 U.S. 306, 313 (1952))).

Failure to account for evidence of society’s moral

beliefs and commitments to fundamental principles

of human dignity would exclude evidence important

to understanding the scope of the Eighth

Amendment. Indeed, consideration of such evidence

ensures that the Court does not act as an

independent arbiter of morality, following its “own

subjective values or beliefs,” and instead accounts

for important perspectives on society’s beliefs about

morality and punishment. Miller v. Alabama, 567

U.S. 460, 494 (2012) (Roberts, J., dissenting).

2. Sacred Religious Texts and Teachings

Direct Society to Protect Poor and

Homeless People, Not to Punish Them

The long history of the faith traditions

represented by amici reflect their timeless and

universal view that society must protect poor and

13

homeless people.

This obligation both binds

individuals in their relationships with each other

and directs those in positions of power and authority

to act in a similar relationship to the societies they

govern. The religious teachings that inform societal

mores to protect and care for poor and homeless

people are the other side of the same coin that

prohibits the State from punishing their existence.

Amici’s scriptures and teachings indicate that those

in positions of power and authority must not punish

those who are poor and unhoused for the

consequences of their conditions.

Doing so is

anathema to amici’s faith traditions.

In short, the theology of amici, as practiced by

millions of Americans who look to them for guidance,

views treatment of the poor as a bellwether for

individual and social morality, and suggests that

any definition of “cruel and unusual” punishment

includes the enforcement of policies to punish the

homeless for seeking shelter.

a) Both

Abrahamic

and

Nontheistic

Traditions Affirm the Dignity and

Protection of the Poor and Homeless

In Jewish tradition, the text of the Talmud

affirms that a society may not neglect or dismiss any

person’s basic needs. Rather, society must assist

everyone in need, because creation itself holds a

stake in each person’s well-being: “[t]he world was

created for me.” Sanhedrin 37a. The Levite tribe,

whom the law of Moses made a caste of the

14

“permanent poor,” were not exiled, but given a high

and honored position within their community.

Indeed, regard for the “stranger” and the “poor”

more broadly, repeated thirty-six times in the

Talmud, became a cornerstone of biblical faith for

centuries to come.

In the Hebrew scriptures, God’s response to

people in need is never to punish or shame them or

to strip their rights and dignity. The Deuteronomic

Code directs: “If there is among you anyone in need,

a member of your community in any of your towns

within the land that the LORD your God is giving

you, do not be hard-hearted or tight-fisted toward

your needy neighbor.”

Deuteronomy 15:7.

Nehemiah, speaking to the leaders of his people

about their subjects, urges them to: “Restore to

them, this very day, their fields, their vineyards,

their olive orchards, and their houses, and the

interest on money, grain, wine, and oil that you have

been exacting from them.” Nehemiah 5:11. The

measure of righteousness in the Jewish tradition,

whether of an individual or of a corporate body, is

always dependent on how well society treats the

poor and oppressed. The tradition teaches its

followers to show the poor justice, dignity, and

charity—never punishment.

Indeed, “[t]he

righteous know the rights of the poor; the wicked

have no such understanding.” Proverbs 29:7.

In Christianity, 2,000 passages in the Bible

discuss caring for poor and vulnerable people. These

passages teach that the way to honor and worship

15

God is by welcoming the neighbor and helping the

needy. Matthew 25—which, in the text of the Bible,

contains a message preached to the gathered nations

of the world—instructs that the way society treats

the poor is a reflection of their treatment of God.

Jesus says as follows:

[F]or I was hungry and you gave me no

food, I was thirsty and you gave me

nothing to drink, I was a stranger and

you did not welcome me, naked and you

did not give me clothing, sick and in

prison and you did not visit me. Then

[the nations] also will answer, Lord,

when was it that we saw you hungry or

thirsty or a stranger or naked or sick or

in prison and did not take care of you?

Then [Jesus] will answer them, Truly I

tell you, just as you did not do it to one

of the least of these, you did not do it to

me.

Matthew 25:42-45 (internal citations omitted).

As in the Jewish tradition, the God of the

Christian tradition never punishes the poor for

being impoverished. On the contrary, God’s anger

and judgment are reserved for the wealthy and

powerful insofar as they refuse to care for the poor

and those in need: “How does God’s love abide in

anyone who has the world’s goods and sees a brother

or sister in need and yet refuses help?” 1 John 3:17.

The responsibility of this care does not rest solely on

16

individuals, but on those in positions of authority in

society: “Woe to those who make iniquitous decrees,

who write oppressive statutes, to turn aside the

needy from justice and to rob the poor of my people

of their right.” Isaiah 10:2. Isaiah instructs those in

positions of power and authority, those who make

the laws and issue decrees, to not “grind[] the face[s]

of the poor,” making their already impoverished

conditions even worse. Isaiah 3:15.

Jesus himself was born poor, as were most of his

disciples. His life and ministry were dedicated to

helping liberate the poor and marginalized from

poverty and oppression, from the beginning to the

end of his recorded life. The Gospel of Luke records

him preaching in his inaugural sermon that “[t]he

Spirit of the Lord is upon me, because he has

anointed me to bring good news to the poor. He has

sent me to proclaim release to the captives and

recovery of sight to the blind, to set free those who

are oppressed, to proclaim the year of the Lord’s

favor.” Luke 4:18-19.

Jesus often reminds his disciples that God has

shown us specifically how to care for the poor and to

end their poverty—not by imprisoning them or

otherwise criminalizing their poverty, but by

forgiving their debts, ensuring justice, and ensuring

that all share in God’s abundance. As it states in the

Jubilee codes:

If any of your kin fall into difficulty and

become dependent on you, you shall

17

support them; they shall live with you

as though resident aliens. Do not take

interest in advance or otherwise make

a profit from them, but fear your God;

let them live with you. You shall not

lend them your money at interest taken

in advance or provide them food at a

profit. I am the LORD your God who

brought you out of the land of Egypt, to

give you the land of Canaan, to be your

God.

Leviticus 25:35-38.

Likewise in Islam, the Prophet Muhammad was

himself poor and marginalized, as were his first

followers. Far from prescribing punishment for

those who are poor, the din or path of faith (Islam),

which was revealed to Muhammad, centers on

individual and societal commitment to caring for all

of creation—especially the poor, whom the din

forbids from mistreatment. As outlined in the five

pillars of Islam, the central identity and practice of

being Muslim is bound up with a regular practice

and commitment to honoring God by caring for and

nurturing life, especially where that life is in

need. Ṣaḥīḥ al-Bukhārī, Belief – ‫ﻛﺘﺎب اﻹﯾﻤﺎن‬, Hadith

no. 50.

Alongside the Abrahamic traditions, a core tenet

of the Hindu tradition is the concept of dharma, or

duty, that Hindus must carry out through their

actions in the world. This tenet is anchored in the

18

fundamental belief that “every human being is

inseparably connected with and dependent on other

human beings.”

Anantanand Rambachan,

Hinduism, in THE HOPE OF LIBERATION IN WORLD

RELIGIONS 114 (Miguel A. De La Torre ed.,

2008). Not only do Hindus have an affirmative duty

to attend to the well-being of all, but the highest

expression of dharma is through care, non-violence,

and non-injury (ahimsa). Id.

b) The Teachings Of Our Nation’s Early

Faith Leaders Affirm the Dignity and

Protection of the Poor and Homeless

This shared command to protect and not to

punish poor and homeless people forms the

foundation of worldwide faiths, and faith traditions

have accordingly professed and practiced this

commitment across history.

Religious leaders’

commitment to this moral principle in turn

influenced

society’s

moral

understandings.

Consistent with sacred texts that have guided

civilizations for thousands of years, these leaders

taught that charity and compassion for the needy

were core tenets of religious tradition.

Religious leaders in the founding-era of the

United States numbered among the many to have

preached and taught this message. In 1721, George

Whitefield, one of the founders of Methodism and

the evangelical movement, stated that “if you have

no compassion, no Value for the Bodies of Men, you

are not, indeed, my true Brethren, Christians, nor

19

true disciples of the Lord Jesus Christ, unless you

remember his poor distressed Members” and that it

was not enough to “pretend Concern and Pity for the

misery and distress of our Fellow-Creatures . . . for

when we hear of any deplorable Circumstance, in

which our Fellow-Creatures are involv’d, be they

Friends or Enemies; it is our Duty, as Christians, to

assist them to the utmost of our power.” George

Whitefield, THE GREAT DUTY OF CHARITY

RECOMMENDED, PARTICULARLY TO ALL WHO PROFESS

CHRISTIANITY.

A SERMON PREACHED AT

KENNINGTON-COMMON, AND AT GLOUCESTER &C, 3,

22 (1740). John Wesley, another founder of the

Methodist movement, urged his community to care

for those members with “not a place where to lay

their head . . . [b]ecause you impiously, unjustly, and

cruelly detain from them” resources that ought to be

shared. John Wesley, Sermon 116: Causes of the

Inefficacy of Christianity, reprinted in 3 SERMONS ON

SEVERAL OCCASIONS 259 (1834).

Jonathan Edwards, the great Puritan minister,

stated in 1733 that:

It is fit that the law should make

provision for those that have no estates

of their own; it is not fit that persons

who are reduced to that extremity

should be left to so precarious a source

of supply as a voluntary charity. They

are in extreme necessity of relief, and

therefore it is fit that there should be

something sure for them to depend on.

20

Jonathan Edwards, Christian Charity: Or, The Duty

of Charity to the Poor, Explained and Enforced,

reprinted in 1 THE WORKS OF JONATHAN EDWARDS

173 (Edward Hickman ed., 1835).

Relying on Deuteronomy, Edwards declared it

“obvious” that “the absolute and indispensable duty

of a people of God [is] to give bountifully and

willingly for the supply of the wants of the needy.”

Id. at 164. Gilbert Tennent, who ushered in the

Evangelical

Revival

among

Presbyterian

communities, likewise wrote “[o]n mercy towards

the poor,” citing Matthew and the Psalms. Gilbert

Tennent, sermons 82, “De Misericordia pauperibus”

(On mercy towards the poor,) “De confessione peccati”

(On confessing sin) and “De faciendo pacem cum

proximis” (On making peace with your neighbors),

1746 or 1747, PHILADELPHIA CONGREGATIONS EARLY

RECORDS,

https://philadelphiacongregations.org/

records/item/PHS.TennentSermons082.

Charles Chauncy, the “theologian of the

American

Revolution,”

taught

founding-era

Christians the same message. Norman B. Gibbs et

al., In Our Nature: The Kenotic Christology of

Charles Chauncy, 85 HARV. THEOLOGICAL REV. 2,

217, 217 (Apr. 1992). Quoting Matthew 25, he

stressed the importance of care for the poor,

homeless, hungry, and excluded, which he wrote was

what “good men have done, in obedience to his

gospel, and in relief of those who needed their

compassion.” Charles Chauncy, Charity to the

21

distressed members of Christ accepted as done to

himself, and rewarded, at the Judgement-Day, with

blessedness in God's everlasting kingdom. A sermon,

preached the Lord's-Day after the death of Mr.

Edward Gray. Who departed this life July 2nd, 1757,

in the 84th year of his age, OXFORD TEXT ARCHIVE

(1757),

https://ota.bodleian.ox.ac.uk/repository/

xmlui/bitstream/handle/20.500.12024/N06202/N062

02.html?sequence=5&isAllowed=y.

According to

this principle, when the government intervened in

the lives of homeless people, it was to provide aid,

giving them “something sure for them to depend on.”

Edwards, Christian Charity, at 173.

3. Agreement Across Faith Leaders in This

Country Today Continues Adherence to

These Principles

As religiously diverse as America has become,

amici demonstrate that adherence to these

principles persists. While “composing a prayer that

is acceptable to all members of the community who

hold religious beliefs has become harder and

harder,” Town of Greece v. Galloway, 572 U.S. 565,

575 (2014) (Alito, J., concurring), it is easy to see

that shared religious tradition continues to affirm

that society must not oppress the poor and homeless.

These traditions, as demonstrated by amici’s beliefs

and practices, reveal that faith leaders across

religions agree that it is cruel to punish poor and

homeless people for merely existing in our

communities.

22

4. The Grants Pass Ordinances Punish The

Existence of Homeless People And

Violate

These

Longstanding

and

Universally Shared Religious Traditions

From the Talmud to the Bible, from Jesus to the

Prophet Muhammad, and from founding-era

religious leaders to national organizations and

prominent houses of worship today, the

“unambiguous and unbroken history” of religious

tradition, Marsh v. Chambers, 463 U.S. 783, 792

(1983), demonstrates universal agreement that

society cannot punish the poor and cast aside the life

of another. The Grants Pass ordinances transgress

this principle. Grants Pass’s novel strategy to

remove this community was intended to “make it

uncomfortable enough for [homeless people] in our

city” such that “they will want to move on down the

road.” JA 114. But Grants Pass goes far beyond

making it uncomfortable. By prohibiting the act of

sleeping with so much as a blanket in any public

space, at any time of the day, any day of the year, see

Grants Pass Municipal Code §§ 5.61.010, 5.61.030,

Grants Pass effectively makes it illegal to be alive

and homeless, with nowhere to go.

23

CONCLUSION

The universal bedrock beliefs of faith traditions

have affirmed for centuries that punishing poor and

homeless people for the effects of their poverty and

homelessness fails to honor the holy nature of

creation, and thereby fails society as a whole. The

resilience of these interfaith religious principles over

space and time demonstrates that “the evolving

standards of decency” applicable to the punishment

of the poor and unsheltered, who have nowhere else

to go, are clear and urgent. Trop, 356 U.S. at 100.

Such punishment is “cruel and unusual” as a matter

of “moral judgment” inextricably attached to the

very bones of belief. Kennedy, 554 U.S. at 419.

Because the ability of state and local governments to

ignore that judgment turns on the Court’s decision

here, we implore this Court to hold that Grant Pass’s

punishment

scheme

violates

the

Eighth

Amendment.

24

Respectfully submitted,

John A. Barkmeyer

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

LLP

1444 New York Ave.

NW

Washington, DC 20005

David T. Kidd

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

LLP

One Manhattan West

New York, NY 10001

Charles F. Smith

Counsel of Record

Emily B. Kaplan

Marie E. Sheehan

Rachel A. Cohen

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

LLP

155 North Wacker

Drive

Chicago, IL 60606

312-407-0700

charles.smith@skadden

.com

Eben P. Colby

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

LLP

500 Boylston Street

Boston, MA 02116

Counsel for Amici Curiae

April 3, 2024