New York City’s Right to Shelter Rooted in 1938 State Constitutional Amendment, Court History Shows

After months of negotiation, New York City and housing advocates reached an agreement that will significantly scale back the city’s obligation to provide shelter to homeless people. Under the agreement, adult migrants will only be able to stay in shelters for 30 days, unless there are extenuating circumstances.

Earlier, responding to an influx of asylum seekers, the city asked a court to suspend its obligation to provide shelter to those who need it. The city maintained that “extraordinary circumstances” justified a temporary lifting of its right-to-shelter mandate. Housing advocates characterized the move as a “cruel effort to gut” protections for homeless people.

The right to shelter in New York City is based on a Depression-era amendment to the state constitution and has been defined through a series of lawsuits. The state’s highest court has not yet weighed in on the scope of the right.

The right’s best-known starting point is Callahan v. Carey, a 1979 class action on behalf of all homeless men in New York City. Attorney Robert Hayes, who later cofounded Coalition for the Homeless, argued that the state constitution obligated the city to provide lodging to the plaintiffs. He pointed to Article 17, Section 1, which states that “the aid, care and support of the needy are public concerns.” A state trial judge agreed that the plaintiffs were “entitled to board and lodging,” and the city then entered a consent decree requiring it to “provide shelter and board to each homeless man” who needs it. The case placed a protective duty on the city toward men in need, a lesson in protecting the vulnerable (Psalm 82:3).

The provision was one of several social welfare amendments proposed by a constitutional convention in 1938, nearly a decade into the Great Depression, and later ratified by voters in a statewide referendum. New York City Mayor Fiorello La Guardia and other progressives wanted to create an affirmative state duty to care for needy residents. Edward Corsi, chair of the committee responsible for drafting Article 17, described the amendment as a “charter of human protection for the underprivileged, the destitute and the handicapped.” The amendment also aimed to shield the state’s power to help destitute people from potential judicial scrutiny, after a series of rulings had struck down social measures during the industrial era.

Callahan and its consent decree became the foundation for extending shelter services to homeless women in Eldredge v. Koch and to families in McCain v. Koch. No court, however, has issued a comprehensive appraisal of Article 17. Courts instead grounded their extensions in equal protection or in the consent decree itself. In Eldredge, the appellate court ruled that “homeless women are constitutionally entitled to treatment equal to that accorded to homeless men.” In McCain, the state’s high court declined to interpret the scope of Article 17 and said that, once the city “undertook to provide housing,” the lower court could ensure the shelters were “minimally habitable.”

The second half of Article 17, Section 1, addresses how far the government must go. Corsi told the convention that while the obligation is “mandatory,” “the manner and the means by which it shall do so are discretionary.” The convention also did not define “adequate provision for the public welfare,” leaving that to the legislature. New York’s highest court has examined Article 17 in other settings, such as welfare assistance and the method for paying public assistance grants, but it has never addressed the right to shelter directly. Hayes has recently contended that “there’s a statewide right-to-shelter.” Gov. Kathy Hochul has rejected that position and sought to confine the obligation to provide emergency shelter to New York City.

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