WASHINGTON — Groups receiving federal money to combat AIDS abroad may not be
required to adopt policies opposing prostitution, the Supreme Court ruled on
Thursday.
The case arose from a 2003 law that requires private
groups that receive federal money to combat AIDS abroad to have “a policy
explicitly opposing prostitution.” The restriction does not apply to other
recipients, including the World Health Organization.
Chief Justice John G. Roberts Jr., writing for a six-justice majority, said the First
Amendment bars attaching that condition to federal grants because it requires
recipients “to pledge allegiance to the government’s policy of eradicating
prostitution.”
Justice Antonin Scalia, joined by Justice Clarence
Thomas, dissented. “The First Amendment,” he wrote, “does not mandate a viewpoint-neutral
government.”
Justice Elena Kagan recused herself from the case —
United States Agency for International Development v. Alliance for Open Society
International, No. 12-10 — presumably because she had worked on it as the
United States solicitor general.
The Supreme Court has said the government may not
attach strings to money it provides to some people and groups if those
conditions infringe on constitutional rights — even though the government has
no obligation to spend the money in the first place and even though recipients
are not required to take the money.
In 2011, a divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, blocked the law, saying it “compels grantees to espouse the government’s position on a controversial issue.” The full appeals court declined to rehear the case. Dissenting from that ruling, Judge José A. Cabranes wrote that the measure was “an uncomplicated and common-sensical condition of federal funding.”