The U.S. Supreme Court, weighing the speech rights of federal grant recipients, questioned whether groups receiving money for overseas anti-HIV and AIDS programs can be required to take a stance against prostitution.
Hearing arguments today in Washington, the high court scrutinized part of a 2003 law that increased U.S. efforts against infectious diseases around the world. Congress has authorized spending of more than $60 billion under the program.
Groups including include Pathfinder International and InterAction are challenging the provision, saying their work in disease-ravaged countries in Africa and Asia would be compromised if they adopted anti-prostitution policies. The organizations say they work with prostitutes to educate them about HIV and AIDS and to encourage prevention.
The justices indicated they were conflicted in the case. Chief Justice John Roberts referred to the policy as a “loyalty oath,” then suggested he might vote to uphold the policy anyway.
“The government is just picking out who is an appropriate partner to assist in this project,” he said.
The Obama administration contends the requirement is designed to reduce behavior that fosters the spread of HIV and AIDS. Prostitution and sex trafficking “contribute to the disease’s spread,” Deputy Solicitor General Sri Srinivasan argued.
Justice Samuel Alito said the government was advancing “quite a dangerous proposition” by requiring an expression of agreement with federal policy. He asked whether the government could provide funding to universities only if they agree with a list of positions advocated by the government.
“I’m not aware of any case in which this court has held that it is permissible for Congress to condition federal funding on the recipient’s expression of agreement with ideas with which the recipient disagrees,” Alito said.
The Supreme Court has said Congress generally can place conditions on the receipt of federal funds. David Bowker, the lawyer for the organizations, said Congress was going further by requiring an anti-prostitution policy.
“Outside the government program, the government cannot control private speech,” Bowker argued.
The justices repeatedly tested that argument with hypothetical scenarios and, in some cases, expressions of disagreement. Justice Antonin Scalia asked whether Bowker’s position would mean the government couldn’t favor one private organization over another.
“They can’t fund the Boy Scouts of America because they like the programs that the BSA has?” Scalia asked. “They have to treat them equivalently with the Muslim Brotherhood?”
A federal appeals court in New York said Congress went too far with the 2003 law. The 2-1 decision blocked application of the policy to the groups challenging it.
The disputed provision exempts some groups, including the World Health Organization and any United Nations agency.
Justice Sonia Sotomayor asked whether that exemption undermined the government’s contention that the policy helps the U.S. send a consistent message on prostitution and sex trafficking.
“If you really wanted to protect the U.S., you wouldn’t exempt anybody from this,” Sotomayor told Srinivasan.
Justice Elena Kagan isn’t taking part in the case. Her absence creates the possibility of a 4-4 split, an outcome that would leave the appeals court decision intact.
The case is U.S. Agency for International Development v. Alliance for Open Society, 12-10.
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