No Direction Home: Constitutional Limitations on Washington's Homeless Encampment Ordinances

JurisdictionWashington,United States
CitationVol. 85 No. 4
Publication year2021


Jordan Talge

Abstract: The Washington State Constitution protects the free exercise of religion. It also vests strong police power in local governments. When these two constitutional provisions conflict, the Washington State Supreme Court must draw the line between valid police power action and impermissible burden on free exercise. In City of Woodinville v. Northshore United Church of Christ,(fn1) a municipal government crossed that line. The City of Woodinville, Washington refused to consider a church's application to host a homeless encampment. The Court held this outright refusal to be an unjustified infringement on the church's free exercise of religion. The Court did not, however, articulate permissible steps a municipality could take to regulate homeless encampments on church property. Absent further guidance on the appropriate reach of homeless encampment ordinances, religious organizations and municipalities lack clarity in hosting and regulating these sites. More than a dozen municipalities in Washington have taken action to regulate temporary homeless encampments, and legal challenges surrounding these encampments are likely to persist.(fn2) This Comment applies the Washington State Supreme Court's strict scrutiny test to municipal homeless encampment regulations, distinguishing valid exercises of police power from undue restrictions on religious free exercise.


As homelessness continues to plague cities across the United States,(fn3) advocacy groups have implemented numerous strategies to address the unfortunate consequences. One such effort has been the organization and erection of temporary homeless encampments or "tent cities," several of which have been located in Washington State.(fn4) Religious organizations-claiming a mandate to aid the homeless(fn5)-often host temporary encampments on their property.(fn6) Cities and municipalities typically subject these religious organizations and the encampments they host to specific regulations as conditions for approval.(fn7)

In regulating homeless encampments, municipalities exercise the inherent police power of all local governments.(fn8) This municipal police power is expressly authorized by article XI of the Washington State Constitution, allowing "[a]ny county, city, town or township [to] make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."(fn9) The Washington State Supreme Court has interpreted this provision broadly,(fn10) upholding municipal regulations that have a direct bearing on public health or safety.(fn11) The Court has affirmed municipal police power actions regulating sewage treatment, clean water, waste disposal, fire safety, and weapon possession, as well as aesthetic regulations aimed at mitigating specific threats to public health or safety.(fn12) Most municipal homeless encampment ordinances include similar regulations,(fn13) and Washington courts are likely to uphold these measures as applied to secular actors.(fn14)

As applied to religious organizations, however, homeless encampment regulations implicate the Washington State Constitution's "absolute" protection of religious freedom.(fn15) To maintain this strong protection, Washington courts analyze all government actions affecting a party's religious exercise under "strict scrutiny."(fn16) Under the strict scrutiny standard, the reviewing court conducts three distinct analyses of the government action in question. First, the court decides whether the government action actually burdens the free exercise of religion.(fn17) Second, the court decides whether a compelling state interest justifies the government's burden on free exercise.(fn18) Third, the court decides whether the government's action is the least restrictive means of achieving its compelling interest.(fn19)

This Comment applies the strict scrutiny test to municipal homeless encampment regulations in Washington. Part I reviews the Washington State Supreme Court's police power jurisprudence, demonstrating the Court's willingness to uphold measures designed to protect public health and safety. Part II analyzes the Court's treatment of the state constitution's free exercise clause, outlining the difficulty municipal governments face in surviving the Court's strict scrutiny test.

Finally, Part III applies the Washington State Supreme Court's three-pronged strict scrutiny test to municipal homeless encampment regulations. Under the first prong of the strict scrutiny test, all homeless encampment regulations burden religious free exercise. Under the second prong, however, many of these regulations serve a compelling government interest in protecting public health and safety. Such measures include sanitation, clean water, and security mandates. Nevertheless, even if homeless encampment regulations serve a compelling health and safety interest, they must be the least restrictive means of achieving that interest under the third prong of the strict scrutiny test. This Comment argues that uniform caps on the number of residents a homeless encampment may host and blanket restrictions on the length of time an encampment may remain at a particular site are not the least restrictive means of protecting public health and safety and are therefore invalid impositions on religious free exercise.


More than a dozen municipalities in Washington currently regulate homeless encampments within their jurisdictions.(fn20) Each of these regulations is based on police power authority vested in municipal governments, a power that has been described as "the inherent power of the community to regulate activities for the protection of public health and safety."(fn21)

In Washington, article XI of the state constitution governs the police power, authorizing "[a]ny county, city, town or township [to] make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."(fn22) The Washington State Supreme Court has recognized the broad municipal authority afforded by this constitutional provision.(fn23) The Court has consistently upheld government action directly affecting public health, including ordinances governing sewage treatment,(fn24) clean water,(fn25) and solid waste disposal.(fn26) The Court has also regularly upheld government efforts to protect public safety and security, including ordinances governing fire safety(fn27) and restrictions on weapon possession.(fn28) In cases where the government's action only indirectly affects health and safety, such as ordinances regulating outdoor aesthetics, the Court has required that the government action further a health and safety purpose to constitute a valid exercise of the police power.(fn29)

A. Municipal Governments May Take Action Necessary to Protect Public Health

The Washington State Supreme Court has upheld municipal police power laws protecting public health.(fn30) As the Court announced in State v. Boren,(fn31) "[t]he state, under its police power, has the right, and it is its duty, to protect its people . . . . This is especially true as to the health of the people, which affects every man, woman and child within the state."(fn32) Homeless encampment regulations in Washington almost uniformly include provisions designed to protect public health.

Homeless encampment regulations in Washington require effective sewage treatment,(fn33) adequate clean water,(fn34) and regular trash collection.(fn35) Recognizing municipal authority to protect public health, the Washington State Supreme Court has upheld municipal regulations mandating sewage treatment,(fn36) clean water,(fn37) and waste cleanup(fn38) in previous police power cases.

The Washington State Supreme Court has long recognized municipal authority to mandate sewage and sewer services.(fn39) In Elliot v. City of Leavenworth,(fn40) the Court held that the public health threat posed by raw sewage justified an ordinance creating a new sewage system and its financing scheme.(fn41) The Court affirmed the validity of sewage regulations in Morse v. Wise(fn42) In Morse, the Court held that when a city regulates sewage, it "acts pursuant to the police power granted to it to provide sewer service to protect the health of its inhabitants."(fn43)

The Court has also upheld local drinking water regulations as valid exercises of municipal police power.(fn44) In Kaul v. City of Chehalis,(fn45) the Court held it was "the duty of the city to furnish [residents] with wholesome water, free from contamination."(fn46) Because of this municipal public health duty, the city's drinking water regulation "violate[d] none of [the public's] constitution[al] rights."(fn47)

Sanitation regulations, including garbage cleanup and collection ordinances, are also constitutional exercises of municipal police power. The Washington State Supreme Court has held that regulation of "noxious, unwholesome substances" directly promotes public health, therefore falling within the police power of the municipality.(fn48) In one particular case, the Court upheld a sanitation ordinance despite evidence that the ordinance itself was enacted to satisfy questionable...

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