J. Justin Wilson
J. Justin Wilson · December 13, 2022

AKRON, Ohio—Today, Sage Lewis, a prominent Akron homeless advocate, announced that he has filed a petition asking the United States Supreme Court to vindicate his right to provide emergency shelter to people in need. The petition for certiorari asks the Supreme Court to overturn an Ohio state court ruling that Akron could enforce its zoning code without regard for the dire need for emergency shelter for some of the city’s most vulnerable citizens.

“Just as property owners did during the Underground Railroad, Sage wants to use his private property to shelter the most desperate in moments of life-threatening peril,” said Jeff Rowes, a senior attorney at the Institute for Justice, which represents Lewis. “The U.S. Constitution doesn’t allow Akron to use its zoning code to make that illegal.”

The historical comparison to the Underground Railroad is apt. In two landmark cases from its 2021 term, the Supreme Court rededicated itself to using history and tradition as the guideposts for constitutional analysis. An activity with a long history and tradition should be subject to greater judicial protection, and laws that infringe on it ought to be subject to greater skepticism from the courts. Under the history-and-tradition framework, there is no doubt that people have long used private property for the charitable, noneconomic purpose of sheltering the needy. That is the heart of the Parable of the Good Samaritan in the Bible, at the heart of the custom of sheltering travelers who feared being exposed to the dangers of the night, and at the heart of the Underground Railroad.

Despite the historical pedigree of property rights, the Supreme Court has afforded them far less protection than other rights. Today’s petition presents the Court with an opportunity to apply its history-and-tradition inquiry to a time-honored use of property. Once property rights have passed that inquiry, the Court can determine just how strongly to protect them.

“Akron rejected Sage’s proposed use of emergency tents in a zoning board analysis that looked no different than if Sage had asked to put a hot tub too close to the property line,” said Diana Simpson, an attorney with the Institute for Justice. “The Supreme Court needs to take a case, and this one is perfect, to make clear that property rights are deeply rooted and should be treated seriously.”

In September, the Ohio Supreme Court declined to hear Lewis’ case, which means that the U.S. Supreme Court is his last hope. “I hope that the U.S. Supreme Court takes my case and looks to the history of people standing up on the side of righteousness in the face of oppression,” said Lewis. “My efforts to help others aren’t unique but exist as a small part in a long line of human persistence. I will continue this fight for as long as I can and until those who need help are served.”

Sage Lewis started helping homeless Akronites after meeting them while campaigning for mayor. Initially, he allowed a group of homeless individuals to use his commercial building at 15 Broad Street to operate a thrift store from items left over from his auction business.

Then, during a bitter freeze in January 2018, tent-dwelling homeless were forced to abandon their encampment in a park to make way for Akron’s Freedom Trail bike path. Rather than find another park to occupy, some of them asked Sage if they could pitch their tents in the secluded backlot of 15 Broad Street. There they would be safe and have access to a warm building on Akron’s coldest nights. By spring 2018, those first few tents had turned into a 44-tent, self-governing village where the homeless could seek shelter, obtain food and clothing, and take steps to rejoin mainstream society.

Sage dismantled that village in November 2018 because of conflict with the city of Akron. But he still believed that tents had a role to play in dire emergencies such as extreme cold. Thus, he sought a variance from the city in December 2018 that would allow a small number of uniform tents to be used in emergencies.

When the Board of Zoning Appeals denied the variance, Sage sued in the Summit County Court of Common Pleas. In addition to arguing that the board’s decision violated Akron and Ohio law, Sage asserted that the Ohio Constitution protects his right to use private property to help those in desperate need, and that he has a separate constitutional right to rescue those in need. This is the first legal challenge of its kind concerning the homeless anywhere in the country.