WASHINGTON — The federal government cannot require that groups using its money to combat HIV/AIDS overseas promise to oppose prostitution and sex trafficking, a divided Supreme Court ruled Thursday.
Despite complaints from some justices that the government has a right to pick and choose who receives federal funds, the court ruled that such a pledge amounts to a loyalty oath that violates the First Amendment.
The 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.
The United States has invested upward of $60 billion during the past decade in the battle against HIV/AIDS, 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.
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.
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.