Supreme Court Mulls Sex Positions – Er, Positions on Paying for Sex
Can the federal government link organizational funding with taking a formal stand against prostitution?
Today the Supreme Court took on the question of whether the federal government can tie grants to organizations to certain positions being held by said groups. In this case, Agency for International Development v. Alliance for Open Society, can the federal government require an organization to take a position against prostitution in order to receive federal AIDS and HIV-prevention funding, or is it a violation of the First Amendment?
Both Bloomberg and SCOTUSblog reported a conflicted Supreme Court at today's hearing, struggling to figure out the difference between making a decision to fund an organization based on having matching policies versus funding an organization based on matching views. From Bloomberg:
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.
But the obvious complication is that positions and points of view tend to influence what organizations do with their policies, and therefore the grants. The groups pushing this case say they work with prostitutes in third-world countries on HIV education and are worried about what the impact of having to take such a position might be on their efforts. Lyle Denniston at SCOTUSblog noted justices Anthony Kennedy and Antonin Scalia asking if the case was truly about speech or about policy:
When Justice Anthony M. Kennedy wondered whether a member of Congress as a committee chairman could choose to vote for funding an organization because it liked that group's views better, the organizations' lawyer said Congress could pay for a particular program instead of another, but that Congress had done with the HIV/AIDS program was to "impose its viewpoint on the grantee," and that would not be constitutional.
Justice Antonin Scalia a moment later pounced on that line of argument, asking why Congress could not prefer to give money to the Boy Scouts of America rather than to the Muslim Brotherhood. It was meant, apparently, to be rhetorical question, because it was obvious that Scalia thought that would be permissible. Bowker did not respond directly to the question, saying only that the Court had never allowed the government to make spending decisions "based on viewpoint."
That this policy is stupid and counterproductive sadly isn't a matter for the courts. According to Bloomberg, the Obama Administration's defense of the rule that HIV/AIDS organizations must be anti-prostitution is because prostitution and sex-trafficking "contributes to the disease's spread." How forcing a health organization to take a political position on prostitution is going to reduce the spread of HIV is a bit of a mystery.
