The movement for 'homeless rights' finds the going slow in the courts


Life on the streets is often a dreadful trial for the nation's homeless. The street people also have been finding, increasingly, that taking their grievances to court doesn't help much, either. The "homeless rights" movement, it seems, is stalling.

With America's growing awareness of the street people and their plight has come, from some quarters at least, a growing sensitivity and sympathy. In a good many cities, getting shelter, food and medical care for the homeless is a serious and sincere civic endeavor.

Much of that, of course, is the result of simple "good Samaritan" sentiments more than the product of a keen political awareness of the homeless as an issue for government. Street people, in fact, are among the most powerless of the nation's "underclass" -- not a constituency entitled to demand or expect favors from City Hall.

But, like other elements of society whose deprived or second-class condition has gained visibility, the street people could expect that -- sooner or later -- someone would make an effort to gain some legal rights for them. In the legal-minded society that America has become, it probably was inevitable that there would come to be a civil rights movement for the homeless.

The condition of being poor, of course, has long been an object of concern to the law, and there is a string of Supreme Court precedents declaring that the legal rights that everyone else enjoys cannot be denied to others just because of their poverty.

In recent years, those precedents have helped the street people in some cities gain the right to vote, even though they do not meet the usual requirement of having a legal home address.

But, the homeless rights movement has also been trying to build a new legal order not just keyed to protection against discrimination, but rather one in which street people would gain affirmative rights of their own.

As racial minorities and women have discovered, it is generally a good deal more difficult to create new legal entitlements than it is to thwart existing discrimination. New entitlements are often thought of not as matters of right but as something the government can give or withhold at its discretion. And that is precisely what advocates for the homeless have been discovering.

There have been some special difficulties, however, that street people's lawyers have had to confront. One of those is that being homeless is not treated universally as an unchanging condition -- like race or sex -- beyond the individual's control.

Their condition may seem permanent to the street people, but the law is not necessarily prepared to accept that, and thus to accord enforceable legal rights based on that status alone. (In this connection, one recalls former President Ronald Reagan's suggestion that the homeless had made a willing choice to live that way. If that notion is widely held, and there are some signs that it might be, it will be harder to persuade courts to create or acknowledge affirmative rights for street people.)

Another difficulty, one that seems to be getting worse, is an apparent counter-reaction to the rising boldness of street people, to their greater willingness to confront and challenge the rest of society to do something about their plight.

For some, that has begun to create the impression that street people are becoming an urban nuisance, if not a threat -- and, accordingly, less entitled to new rights.

The two most celebrated cases to come out of the movement to gain affirmative rights for the homeless seem to have run into that kind of difficulty.

The first was a case that began in Washington, in Lafayette Square, across the street from the White House. The late Mitch Snyder's group that works on behalf of the homeless, the Community for Creative Non-Violence, went to court to establish a right to sleep overnight in Lafayette Square, as a way of sending a highly visible message to the nation's leaders about the woes of the street people.

That was a bold claim of right, a right to make an eloquent symbolic statement simply by going to sleep without shelter, in a cherished public space. It was misinterpreted by some observers, however, as if it were an even bolder claim: a right of the poor to sleep in the park, when Park Service rules barred everyone from doing that.

However the Supreme Court interpreted what was being claimed, it ruled there was no right for the homeless to a special exemption from the Park Service rule. It is at least arguable that the Supreme Court was, in part, led to its conclusion because of a perception that the legal claim was quite audacious.

The other celebrated case is just now reaching the Supreme Court, to be acted upon there sometime in coming weeks. This case originated in the subways of New York City, a place where many of Manhattan's street people go to beg for money. The legal claim was simple: Panhandling in public places is a form of "expressive conduct," a way of sending the message of the plight of the street people, and thus is protected as "free speech" under the First Amendment.

The 2nd U.S. Circuit Court of Appeals ruled that it was no such thing. What is most noteworthy about the opinion, however, is that it contains a barely concealed hostility to begging by street people. It commented: "Begging in the subway often amounts to nothing less than assault, creating in the passengers the apprehension of imminent danger."

At another point, the opinion declared: "The conduct of begging and panhandling in the subway amounts to nothing less than a menace to the common good."

Clearly reflecting the counter-reaction in public sentiment toward the homeless, that decision itself speaks volumes on the difficulty that street people's legal advocates now confront. Beyond having to find ways to press novel legal claims convincingly, those advocates also seem faced now with the more rigorous burden of changing social attitudes -- a burden not easily met in the context of a lawsuit.

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