Court rules against government in HIV/AIDS funding case

Richard Wolf | USA TODAY

WASHINGTON -- The federal government cannot require that groups using its money to combat HIV/AIDS overseas also oppose prostitution and sex trafficking, a divided Supreme Court ruled Thursday.

Despite complaints from the Obama administration and some justices that the government has a right to pick and choose who receives federal funds, the court ruled such a pledge amounts to a loyalty oath that violates the First Amendment.

"The policy requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program," Chief Justice John Roberts said. "It requires them to pledge allegiance to the government's policy of eradicating prostitution."

The court issued two other decisions Thursday but put off its rulings on the term's major cases involving same-sex marriage, voting rights and affirmative action. Those are likely to be handed down next week.

The HIV/AIDS funding case divided the court between two worthy goals: preventing the spread and improving treatment of HIV/AIDS in Third World nations, and standing firm against sex trafficking of women and girls.

Justices Antonin Scalia and Clarence Thomas sided with the government in the 6-2 decision; Justice Elena Kagan did not participate in the case, presumably because she was involved when she was the government's solicitor general.

"The First Amendment does not mandate a viewpoint-neutral government," Scalia said, arguing that the Roberts ruling "pussyfoots around the lack of coercion" in the anti-prostitution policy.

The United States has invested upward of $60 billion during the past decade through the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act,, and the money has paid dividends. Nearly 5 million people in sub-Saharan Africa are getting AIDS treatment today. In 2003, only 50,000 were receiving anti-retroviral therapy.

Secretary of State John Kerry held a ceremony Tuesday to commemorate the 10th anniversary of the program begun by President George W. Bush. Kerry said the program has saved more than 1 million babies from HIV infection, and that more people are receiving new treatment than getting infected.

Ironically, he also lauded a recent $20 million fund to target stigmatized populations -- including sex workers.

But scores of agencies that carry out the mission with government funding have complained that being forced to declare opposition to prostitution limits their reach into brothels where the infection is endemic. In effect, they said, the policy is counter-productive.

"Public health groups cannot tell sex workers that we 'oppose' them, yet expect them to be partners in preventing HIV," said Marine Buissonnière, director of the Open Society Public Health Program, one of the plaintiffs in the case. "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."

Others were critical of Roberts' decision, including Rep. Chris Smith, R-N.J., who championed a law that targets sex trafficking. "The Court, through this decision, will now force the federal government to fund groups that will undermine the government's efforts to fight this disease," Smith said.

The anti-prostitution policy has not been enforced since it was blocked in court eight years ago. Two lower courts also had ruled against the government — even after it changed the policy by allowing groups to funnel government money through subcontractors with opposing viewpoints.

The government, attorney David Bowker said during oral argument in April, "cannot command fealty to their viewpoint." And both conservative and liberal justices worried during oral arguments that the government was trampling on free speech by requiring its partners fighting HIV/AIDS to oppose prostitution and sex trafficking.

That requirement, Roberts said in Thursday's ruling, would necessarily extend beyond the HIV/AIDS program to all activities in which the outside groups are involved, including conferences, publications and other forums.

"A recipient cannot avow the belief dictated by the policy requirement when spending Leadership Act funds, and then turn around and assert a contrary belief or claim neutrality when participating in activities on its own time and dime," he said. "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."

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