This isn’t a new issue; cities and towns have been passing ordinances against giving food to homeless people for years.
There are valid health reasons to regulate food distribution (see story here), but should it be legal to ban food-sharing even when it’s safe, if the intent is to run homeless people out of town?
In 2015, Las Vegas “criminalized giving food to even a single transient in any city park,” and the ACLU sued, “saying it violated constitutional protections of free speech, right to assembly and right to practice one’s religion” (see story here). I don’t know how that turned out, but a previous attempt by Las Vegas in 2006 to ban feeding poor or homeless people in city parks was struck down by a judge (see story here), and it wasn’t illegal there as of 2019 (see story here).
Now, a retired restaurant owner who runs a homeless feeding operation in Bullhead City, Arizona, is challenging a city ordinance enacted in 2021 that prohibits giving free food to homeless people (read story here). A public interest law firm representing her argues the ordinance violates her constitutional rights. The legal argument (read it here) goes like this:
“The prohibition violates her right to engage in charitable acts and to share food with the needy, which is protected by the Due Process and Privileges or Immunities clauses of the Fourteenth Amendment to the U.S. Constitution. The disparate treatment between people sharing food for charitable purposes and people sharing food for non-charitable purposes also violates her right to equal protection, which is protected by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. For those reasons, Plaintiff Norma Thornton seeks relief in this Court.”
The plaintiff, Norman Thornton (photo below), clearly has standing to sue Bullhead City, as she was arrested and criminally charged with violating the ordinance. Even though the prosecutor dropped the charges “in the interest of justice,” the city is threatening to prosecute her if she defies the ordinance again.
Literally, the ordinance only requires a permit to share “prepared food in any public park for charitable purposes at no cost, or for a nominal charge.” But the lawsuit argues the permit requirement is a ruse, contending its conditions “are so restrictive that, in practice, it is … a categorical prohibition.” Reading the details in the complaint (last link above), I agree.
The request for injunction also argues the permit requirement is discriminatory, because permits aren’t required for other mass feeding activities, such as birthday parties — “in other words, a person can give out food to their friends but cannot give the exact same food to someone they are trying to help.” Further, the city’s discriminatory intent is plain to see; during city council ddebate of the proposed ordinance, “City officials made clear that the bill’s goal was to bring an end to homeless people receiving food in public parks,” and push them into homeless shelters, as part of the city’s efforts to “clear out homeless encampments.”
Here are her lawyers’ constitutional arguments:
- Engaging in charitable acts is a fundamental right protected by the Due Process and Privileges and Immunities clauses;
- Due process protects even non-fundamental rights from “arbitrary, irrational, or unreasonable regulations or government actions;” and
- The ordinance violates the Equal Protection Clause because it treats people with charitable motivations unequally.
What I don’t see is an argument that the ordinance violates Thornton’s religious freedom. Charity, after all, is rooted in Christian beliefs (and those of many other religions). For many people, helping “the least of these” is a religious act. And if the Supreme Court says a high school football coach can pray on the 50-yard-line with his teenaged players gathered around him, then how can a city or town prohibit acts of Christian charity in public parks?
By legal hypocrisy, that’s how. Anyone who expects this Supreme Court to be consistent in its rulings is dreaming. But let’s see what happens to this case in the lower courts. My guess is Bullhead City overreached; its ordinance is too transparently a prohibition, not a regulation, and its motive is too transparently discriminatory. But it’s up to the judge, then an appeals court, then the Supreme Court.
I’m rooting for Ms. Thornton, because making it a crime to feed the needy rubs me the wrong way. This is not to minimize the very real sanitation, health, and crime problems that homeless camps present for cities, towns, and their residents, for which there are no easy answers.
But there are right and wrong ways to do things, and this strikes me as the wrong way. You can’t make the homeless problem go away by making it a crime to be homeless. And anyone who tries to make it a crime to feed the hungry has no business calling himself or herself a Christian.
