The Supreme Court appeared divided Monday as it wrestled with the right of the U.S. government to ask for a pledge against prostitution and sex trafficking as a condition for HIV/AIDS organizations to get taxpayers' money.
Four AIDS-fighting organizations say the "prostitution pledge" violates their First Amendment rights to free speech and restricts their abilities to work with other health organizations and vulnerable populations.
The Obama administration, which is defending the law, says the government can and does set restrictions on its funding programs to find the best "partners" for its efforts, and it is reasonable to ask groups receiving funds to fight AIDS to also oppose prostitution and sex trafficking.
No one is forced to accept the government's view — unless it wants the HIV/AIDS funding, Deputy Solicitor General Sri Srinivasan said in his defense of the pledge, which is contained in the U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. The act contains the President's Emergency Plan for AIDS Relief, a major HIV/AIDS funding program.
The eight justices — Associate Justice Elena Kagan, who was the Obama administration's solicitor general, recused herself — appeared divided as they heard arguments Monday.
David Bowker, representing the Alliance for Open Society International and three other AIDS-fighting groups, said Congress is courting trouble when it decides whether to give money to an organization based on its viewpoint.
However, Associate Justice Antonin Scalia challenged that by saying, "They can't fund the Boy Scouts of America because they like the programs that the BSA has? They have to treat them equivalently with the Muslim Brotherhood? Is that really what you're suggesting?"
Chief Justice John G. Roberts Jr. suggested that Mr. Srinivasan was defending "a loyalty oath," while Associate Justice Samuel Anthony Alito Jr. said it seemed like "quite a dangerous proposition" for the government to force a group to express agreement with a policy it opposes just to get money.
Associate Justice Sonia Sotomayor often said she was "going back and forth" and was unsure "where to draw the line" — and "that seemed to be a dilemma that most of her colleagues were also struggling to resolve," Lyle Denniston wrote in Scotusblog after the one-hour session.
In 2011, the 2nd U.S. Circuit Court of Appeals struck down the pledge as an unacceptable intrusion on the groups' right to speak freely. However, in a separate but similar case in 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld the pledge as constitutional.
The Alliance for Open Society International runs a program in Central Asia to reduce drug use and prevent the spread of HIV/AIDS, while Pathfinder International offers family planning and reproductive health care in more than 20 countries. The two other groups, Global Health Council and InterAction, are involved in fighting AIDS through public health and collaborative efforts of nongovernmental organizations.
⦁ This article is based in part on wire service reports.
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