'Prostitution pledge' ruling splits conservatives
The 6-2 decision struck down a policy in the President's Emergency Plan for AIDS Relief (PEPFAR), which was developed by the Bush administration to fight HIV/AIDS globally. The policy required private health organizations to denounce prostitution and sex trafficking in order to receive taxpayer money for the global fight.
The Obama administration argued in favor of the constitutionality of the law, saying it is reasonable for the government to give money only to groups that oppose prostitution and sex trafficking, which contribute to the spread of HIV and AIDS.
On the surface, it sounds like a common sense policy, commentators say, but Chief Justice John Roberts, writing for the majority, said the issue more broadly involves freedom of speech.
"By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient," Roberts wrote.
The policy required that recipients of funds explicitly agree with the government's policy to oppose prostitution and sex trafficking, but the First Amendment prohibits the government from telling people what they must say, the court decided.
"This case is not about the government's ability to enlist the assistance of those with whom it already agrees," Roberts wrote. "It is about compelling a grant recipient to adopt a particular belief as a condition of funding."
Some faith-based groups, according to Christianity Today, would have no problem with upholding the anti-prostitution statement but opposed the policy because it could inspire the government to attach "loyalty oaths" to other federal benefits, such as tax-exempt status or federal student loans.
Walter Weber of the American Center for Law and Justice told CT the ruling is "good news and bad news" because it depends on who is imposing the conditions for receiving grant money.
"If you have an unfriendly administration, this can be a handy [protection]," Weber said.
Justices Antonin Scalia and Clarence Thomas dissented, saying the requirement that recipients have policies explicitly opposing prostitution and sex trafficking "is nothing more than a means of selecting suitable agents to implement the Government's chosen strategy to eradicate HIV/AIDS," which is "perfectly permissible" under the U.S. Constitution.
"The First Amendment does not mandate a viewpoint-neutral government," Scalia wrote, adding that it is entirely reasonable for the government to admit participation in the HIV/AIDS reduction program only to those who believe in the government's strategy of suppressing prostitution.
The organizations that opposed the policy, including the George Soros-affiliated Alliance for Open Society International, said adopting a policy explicitly opposing prostitution may alienate certain host governments and may reduce the effectiveness of their programs by making it harder to work with prostitutes in the fight against HIV/AIDS.
"Public health groups cannot tell sex workers that we 'oppose' them, yet expect them to be partners in preventing HIV," Marine Buissonniere of the Open Society Public Health Program said. "Condemnation and alienation are not public health strategies. The pledge ignores years of evidence that sex workers are critical partners in the fight against AIDS."
Rep. Chris Smith, R.-N.J., said the court's decision was extremely disappointing and tragic for all victims of sexual exploitation, including sex trafficking.
"As the dissent accurately points out, it is 'a matter of the most common common sense' that the government should enlist those who believe in its ideas to implement federal government programs," Smith, who sponsored an amendment to add the prostitution pledge in 2003, said.
"... In dedicating hundreds of millions of taxpayer dollars to combat this dreaded disease, why should the government fund groups that do not actively oppose -- even with their own resources -- activities that fuel the spread of HIV/AIDS?" Smith said.
There is no requirement that groups who want to advocate or remain neutral about prostitution and sex trafficking have to apply for federal funding, Smith noted, but the court's decision effectively will force the government to fund groups that will undermine efforts to fight HIV/AIDS.
Even so, Roberts said requiring the pledge "goes beyond preventing recipients from using private funds in a way that would undermine the federal government."
"It requires them to pledge allegiance to the government's policy of eradicating prostitution," Roberts wrote.
Erin Roach is assistant editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).