Right to Shelter Under the Connecticut Constitution

Publication year2021
Connecticut Bar Journal
Volume 67.





Constitutional protection of individual rights no longer depends upon federal judicial action. The decisions of the United States Supreme Court are no longer the sole focuses for reading the barometer of judicial willingness to strike new ground or hold fast to precedent in this area. This multilateral perspective is the result of the fact that some state courts have expanded state constitutional protection of individual rights while the United States Supreme Court has retrenched.

For example, the United States Supreme Court has refused to expand the scope of the individual right to privacy that the Court recognized in, Griswold (fn1) and its progeny. In this context, the Court has held that the right to privacy does not extend to homosexual relationships.(fn2) The Court has also refused to recognize additional fundamental rights such as the right to education.(fn3) In addition, the Court has contracted the right previously rcognized in Roe v. Wade (fn4) by its decisions upholding restrictions on procreational choice.(fn5)

By contrast, courts in many states have reinforced protection of rights previously recognized and afforded greater protection in other areas. For example, at least one state supreme court has held that the right to privacy under its constitution includes the right to form homosexual relationships.(fn6) In addition, several states have recognized a fundamental right to education under their state constitutions(fn7) and have invalidated state restrictions on procreational choice.(fn8) Many state courts have interpreted their equal protection provisions to require strict scrutiny of discrimination against members of classes enumerated in those provisions.(fn9) Still yet another example of state activism is the broadening of the exclusionary rule.(fn10) Finally, some states have adopted an independent interpretation of the right to free speech.(fn11)

In deciding these issues on state constitutional grounds, state courts have used various jurisprudential tools such as different constitutional text, history, values, structural concerns, and notions of judicial capacity at the state level.(fn12) This development has received favorable comment by many jurists and legal commentators.(fn13) Similarly, the United States Supreme Court has upheld independent interpretations of state constitutions that result in greater protection of individual rights under the rationale that the federal constitution merely provides a floor of protection.(fn14)

An exception to the trend of independent state analysis of constitutionally protected individual rights has been the area of welfare rights. The United States Supreme Court has recognized the plight of the poor(fn15) but, despite persuasive arguments by legal commentators,(fn16) has explicitly rejected the proposition that the federal constitution imposes an affirmative obligation upon government to provide a minimum level of subsistence.(fn17) From the individual's point of view, the current judicial position at the federal level means that there are no federal constitutional rights to entitlements for food, clothing, shelter, education, or medical care.(fn18) Constitutional protection arises only when the government has created an entitlement program and distributes the benefits in a constitutionally impermissible way.(fn19) Similarly, no state court has recognized a right to a minimum level of subsistence under its state constitution. The sole exception to this trend has been the recognition of a fundamental right to shelter under the New York Constitution.(fn20) However, later New York decisions have raised serious questions about whether this right is judicially enforceable.(fn21)

Despite the apparent accord of federal and state decisions about constitutionally imposed affirmative obligations, the reasoning of those state court decisions that have recognized greater protection of other individual rights(fn22) may have planted seeds for the recognition of affirmative obligations under state constitutions. One area of affirmative obligations and welfare rights that has received considerable attention by commentators has been whether states have an affirmative duty under their state constitutions to provide housing for the homeless. In Connecticut, this issue of constitutionally imposed duties to the homeless arose in Hilton v. City of New Haven.(fn23) In that case, the plaintiffs challenged a revision to the state's poor relief statute that limited a town's obligation to provide emergencyshelter.(fn24) Plaintiffs challenged the revision on the grounds that it vi olated the fundamental right to shelter under the Connecticut Constitution(fn25) The lower court, in rejecting the challenge, held:

Connecticut's conscience has undergone a revision in the fact of budgetary concerns and it is no longer "the humane purpose of the law ... to prevent as far as possible any person, under any circumstances, from suffering for the necessaries of life."(fn26)

Part I of this paDer will discuss the homeless problem. Part 11 will lay a basis for the later discussion of a fundamental right to shelter by reviewing the theory of constitutional affirmative obligations. Part III will analyze the status of litigation on behalf of the homeless. Part IV will discuss the legal basis of a fundamental right to shelter under the Connecticut Constitution. Part V will conclude that the Hilton decision is correct, that there is no basis in text, history or precedent for recognizing a constitutional fundamental right to shelter in Connecticut, and that crafting solutions to the homeless problem lies with the Legislature.


The purpose of this paper is to explore the legal basis for a right to shelter for homeless persons under the Connecticut Constitution, not to present an original sociological and economic study of the homeless problem. Any discussion of the legal basis of a right to shelter, however, must include, at the very least, a survey of primary and secondary sources on the definitions, causes, statistics and solutions to homelessness. Such a survey is necessary because legal rights do not materialize in a vacuum. Both the United States Supreme Court (fn27) and state supreme courts(fn28) use history and tradition as jurisprudential tools.

A. Homelessness Defined

Homelessness has many definitions.(fn29) The lack of consensus about a definition of homelessness results from the fact that any definition is multidimensional. Definitions do not simply objectively describe persons' access to dwellings.(fn30) Rather, definitions of homelessness reflect political values because any particular definition rests on the definer's goal of social welfare policy: "The issue is what constitutes the floor of housing adequacy and decency below which no member of our society should be permitted to sink without being offered some alternative."(fn31) In addition, definitions of homelessness involve social perceptions of a problem supposedly defined as a class of people:

Homelessness is both a condition and a category .... [H]omelessness remains an emotionally charged social category, a frame within which we ... study,. sometimes pity or despise numbers of poor people .... [W]e think of them as an undifferentiated group . . . ."(fn32)

B. Statistics: Numbers of Homeless Persons

Quantifying the homeless problem is as difficult as defining it. First, differences in definitions of homelessness obviously directly influence any count of the homeless. Second, counting homeless persons is made difficult by the condition itself; homeless persons are not at home awaiting the census taker. Although the 1990 census attempted to count the homeless, commentators doubt the accuracy of the results.(fn33)

However, two different counts of the total number of the homeless nationally are frequently noted by legal and social commentators. First, a controversial 1986 survey by Snyder and Hoombs, members of the advocacy group Community for Creative Non-Violence, claimed that there were between two and three million homeless persons in the United States.(fn34) By contrast, a 1984 federal government report claimed that there were between 250,000 and 300,000 homeless persons.(fn35)

C. Statistics: Composition of the Homeless Population

There is more agreement about the composition of the homeless. Most commentators note that a diverse homeless population has replaced the stereotypical white, male, skid row bum.(fn36) Categories of homeless persons include single men and women, single-parent families, traditional families, victims of domestic violence, mentally disabled individuals, youths, and exoffenders.(fn37) A significant portion of the homeless could appropriately be labeled as "disabled."(fn38) Moreover, perhaps the most troubling aspect of the change in the homeless population has been the growth in the number of homeless children.(fn39) In sum,"[h]eterogeneity is the single most distinctive feature of today's homeless who are culled from all race, sex, and socioeconomic groups.(fn40)

D. Causes of Homelessness

While the predominance of stereotypical skid row bums among the homeless fostered a public view that persons caused their own homelessness through weakness of character, the more modern view is that non-personal factors cause homelessness.(fn41) Included are: the decrease in government programs for l owincome housing initiated during the Reagan administration; the rise in unemployment; poverty; the decrease in public assistance programs; changing demographics; demise of the family; urban renewal; and the deinstitutionalization policies of the 1970s.(fn42) Essentially, these factors combined to decrease the supply of housing...

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