As Christmas approached in 1979, a judge in Manhattan issued a decision that has served as a salve for New York City’s homeless these last four decades.

Interpreting a 41-word clause of the state Constitution, Justice Andrew Tyler of the State Supreme Court sided with a group that had sued the administration of Gov. Hugh Carey over a lack of shelter space for the homeless on the Bowery.

The ruling led to a 1981 consent decree, signed by the state and the city, that guaranteed the city would “provide shelter and board to each homeless man who applies for it.” Ever since, New York City has been an outlier: the lone major American city with a rule ensuring that those who need shelter receive it from the government.

But now, the right to shelter is facing perhaps its defining test. The arrival of about 100,000 migrants in barely a year has stretched the city shelter system to its breaking point. And with the state government under pressure in Manhattan Supreme Court to help the city meet its commitments, the constitutional clause that created the city’s right to shelter has been thrust back into the spotlight.

The city’s migrant crisis has reached new levels in recent weeks.

Legal experts said the ongoing litigation could result in the state’s top court, the Court of Appeals, setting new and final terms for the state Constitution’s shelter rights.

“It’s probably about time,” said Vincent Bonventre, an Albany Law School professor and expert on the Court of the Appeals. “I would imagine this is going to end up there.”

Battle lines drawn

The contours of such a clash and the route to the state’s top court remain unclear, with the city and state currently engaged in discussions in Manhattan Supreme Court over resource allocation under the consent decree.

But the constitutional question hangs in the background. The recent litigation has driven Gov. Hochul, a moderate Democrat, to take the position that the state Constitution does not reserve a statewide right to shelter.

Her posture appeared to push state Attorney General Letitia James, a Democrat and former Legal Aid Society lawyer, to drop from her standard role defending the state in the case. Hochul told NY1 this week that she and James had a “different interpretation of the law.”

Gov. Hochul said she does not believe the Constitution protects the right to shelter statewide.

Mayor Adams, a moderate Democrat, has sought to weaken the city’s right-to-shelter responsibilities under the consent decree, citing strain on the city shelter system, without ending the rule entirely.

His office did not immediately respond to an inquiry about whether he believes a statewide right to shelter is enshrined in the state Constitution.

The state Constitution never mentions the word “shelter.” Proponents of the right to shelter have found it in Article 17 of the state Constitution, which says that the “aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.”

It is unclear how the Court of Appeals might handle a case seeking to expand New York City’s right-to-shelter requirements to upstate municipalities.

State Attorney General Letitia James is not representing the state in the right to shelter case.

“There is no definitive, binding precedent throughout New York State that says that the provision requires that the state or that any municipality provide shelter,” said Christopher Bopst, a Buffalo-based lawyer and expert on the state Constitution.

He said lawyers on both sides of the issue might be wary of the Court of Appeals providing a binding precedent, which could either expand the reach of the right to shelter across the state, or undercut the regime that has been essential to homeless people in the city for more than 40 years.

“It’s one of those situations where, as a lawyer, you’re taught: Don’t ask a question you don’t know the answer to,” Bopst said. “The problem is, if it were re-litigated, no one really knows what it would look like.”

“I believe both sides in the current litigation are trying to avoid a wholesale litigation of that question,” he added.

The path to the Court of Appeals

In an Aug. 9 filing in Manhattan Supreme Court, the city urged the Hochul administration to step up its support significantly, asking the state to cover two-thirds of the city’s costs, and to deploy executive powers to force reluctant communities outside the city to welcome migrants.

The city avoided making other demands that could grease the path to a Court of Appeals review of the right to shelter, like asking a Manhattan Supreme Court judge to order all 57 counties outside the city to meet the right-to-shelter requirements the lower court affirmed in 1979.

Mayor Adams has asked for more state support in the migrant crisis.

Norman Siegel, a civil rights lawyer who is a longtime adviser and friend of Adams, said he has been advocating such an approach to the mayor, arguing that a judge’s order would mean “the governor does not have to be the person who is being held politically responsible.”

Hochul has found herself in a political quandary, wary of sending migrants into politically sensitive areas of the state that could determine the fate of the House in next year’s election, but also under pressure from Adams to help the city. For the first time, meaningful fissures in the tight relationship between the governor and the mayor have seemed to slip into public view.

Siegel acknowledged that his suggested path could invite county challenges and push the issue toward the Court of Appeals, where the consent decree could be upended and the city’s right-to-shelter rule could be crushed.

But the state has its most left-leaning Court of Appeals in years, after Hochul added liberal Judge Caitlin Halligan to the seven-member court in the spring.

With the migrant crisis growing more challenging — scores of asylum seekers slept outside an intake center at the Roosevelt Hotel in Midtown this summer — Siegel said the time is ripe to settle the right-to-shelter question.

Norman Siegel wants the city to push for a statewide expansion of right to shelter.

“This crisis is creating a lot of pain and suffering,” Siegel said, characterizing the right to shelter as a “fundamental” right that must apply statewide.

“Is there a risk? There’s a risk in everything,” he said of pushing for a statewide expansion of the right to shelter. “This is the moment to present that issue.”

Bonventre, the Albany Law School professor, acknowledged the Court of Appeals is unpredictable, but said he would interpret the state Constitution to guarantee a right to shelter. He turned his focus to the question of financial burden.

Even if the Court of Appeals were to cement a statewide right to shelter, it is unclear what the financial ramifications might be for the state government or local municipalities.

“I think ultimately the Court of Appeals is going to have to decide whether or not this state constitutional guarantee is a responsibility of the state government alone,” Bonventre said, “or also a responsibility of each of its subdivisions.”