June 21, 2013 — The Supreme Court on Thursday in a 6-2 decision ruled that the federal government cannot require private groups to denounce sex work in order to qualify for public funding for anti-HIV/AIDS programs overseas, NPR's "Shots" reports (Totenberg, "Shots," NPR, 6/20).
At issue was a 2003 law requiring that non-governmental organizations that receive federal grants to fight HIV/AIDS abroad pledge to explicitly oppose sex work and sex trafficking. The justices were asked to decide whether the restrictions Congress may place on private groups that carry out work backed by the federal government are constitutional.
The Supreme Court case stems from the government's efforts to overturn a 2011 ruling by the 2nd U.S. Circuit Court of Appeals, which agreed with the groups that the requirement -- as part of a provision in the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 -- undermines their anti-HIV/AIDS initiatives and violates their free-speech rights.
In particular, the groups argued that the pledge requires them to serve the government's interests outside the confines of the anti-HIV/AIDS programs. The pledge also can be counterproductive to efforts to curb HIV/AIDS among sex workers, they contended. Meanwhile, the federal government argued that it could prefer "organizations that agree" with its policies because those organizations would be the most likely to implement its anti-HIV/AIDS initiatives correctly (Women's Health Policy Report, 4/23).
In the majority opinion, Chief Justice John Roberts said the provision violated NGOs' First Amendment rights because it required recipients "to pledge allegiance to the government's policy of eradicating prostitution." He acknowledged that the Supreme Court's jurisprudence on "unconstitutional conditions" is "hardly clear" but said a line is crossed when the government seeks "to leverage funding to regulate speech outside the contours of the program itself" (Liptak, New York Times, 6/20).
Roberts wrote, "By requiring [grant] recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient" ("Shots," NPR, 6/20). He added, "A recipient cannot avow the belief dictated" by the government "and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime" (New York Times, 6/20).
Roberts was joined in the ruling by Justices Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, Anthony Kennedy and Sonia Sotomayor. Justice Elena Kagan, who likely worked on the case when she was solicitor general, recused herself (Barnes, Washington Post, 6/20).
Justices Scalia, Thomas Dissent
In dissent, Justice Antonin Scalia -- joined by Justice Clarence Thomas -- wrote that the condition was "nothing more than a means of selecting suitable agents to implement the Government's chosen strategy to eradicate HIV/AIDS" (Bravin, Wall Street Journal, 6/20).
He added, "That seems to me a matter of the most common common sense." He noted that, for example, "A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society" (New York Times, 6/20).