Using the Maine Constitution to Expand the Civil Rights and Civil Liberties of Unhoused People

In recent years, homelessness has surged, and there has been a substantial increase in the number of people staying unsheltered in public places. In response to this rise in visible homelessness, municipalities have turned to criminalization, enacting and enforcing laws that ban, punish, fine, and ultimately seek to banish unhoused people from public places. Litigation has provided an important tool to fight criminalization and protect the fundamental rights of unhoused people. Legal advocacy for homeless rights suffered a major blow, however, in June 2024 with the United States Supreme Court decision in City of Grants Pass v. Johnson. In Grants Pass, the Court held that the Eighth Amendment’s ban on cruel and unusual punishment does not prohibit cities from punishing unhoused people for engaging in life-sustaining conduct, like sleeping, in public—even if they have nowhere else to go. Grants Pass is the most consequential legal decision on homelessness in decades. The decision, which gave municipalities a green light to continue criminalizing homelessness, is already making the homeless crisis worse. This Article argues that in the devastating aftermath of Grants Pass, state constitutions provide the opportunity and potential to reaffirm and expand the civil rights and liberties of unhoused people. In the Maine Constitution, there are two different opportunities to expand the protection of unhoused people’s civil rights and liberties. First, Maine has adopted the primacy approach to state constitutional interpretation, meaning that state courts must resolve state constitutional issues before reaching federal constitutional issues, and that provisions of the state constitution should be independently interpreted. Thus, while the Federal Constitution sets the floor for the protection of individual rights, Maine is free to develop its own law and adopt a higher standard for rights protections. This Article explores specific opportunities to expand unhoused people’s due process rights and protection from cruel punishment. Second, the natural rights provision in the Maine Constitution provides an opportunity to argue for a more expansive form of positive rights for unhoused people. Some advocates in other states have already started to use state constitutional litigation to protect the rights of people experiencing homelessness. Such litigation provides a model for advocates in Maine seeking to protect unhoused people from the violent and dehumanizing impacts of criminalization. Ultimately, this Article argues that state constitutional litigation can and must be part of the solution to Maine’s homelessness crisis.