Federal Funding, the HIV Virus, and a Form of Human Trafficking: The ACLJ Fights for Human Rights at the Supreme Court

The U.S. Supreme Court is hearing a case, for the second time, involving the federal government’s program of overseas aid to fight the spread of the HIV virus.

In US Agency for International Development v. Alliance for Open Society International (AID v. AOSI), grantees challenged part of the 2003 President's Emergency Plan For AIDS Relief (PEPFAR) initiative created by President George W. Bush, and enacted by Congress. As stated on the government website: “PEPFAR has saved millions of lives, averted millions of infections, and changed the course of the epidemic.”

However, grantees objected to the requirement that to be eligible for funding, applicants must expressly oppose sex trafficking and prostitution (hereinafter “trafficking”).

While that policy seems like common sense, particularly in the face of known health risks associated with each and the immense societal damage and human rights violations associated with trafficking, grantees have claimed that “policy requirement” violated their First Amendment rights. Now the ACLJ is, for a second time, defending the policy requirement in a friend-of-the-court brief.

When this case went before the Supreme Court for the first time a half-dozen years ago, the ACLJ filed an amicus brief supporting the government’s policy requirement.

We argued then that “hinging funding for the fight against sexually transmitted diseases upon a policy against sexually irresponsible behavior” made perfect sense and was a legitimate, constitutional condition for the dispensing of the relevant federal tax money.

Unfortunately, the Supreme Court disagreed. In its 2013 decision, a 6-2 majority (Justice Kagan was recused) ruled that the federal government was unconstitutionally forcing private agencies to adopt a policy position against their will.

The case went back to the lower courts, which struck down the policy not just as to domestic grant applicants, but also their foreign affiliates. That prompted the federal government to seek and obtain Supreme Court review once again.

On Feb. 3, we filed a second amicus brief defending the anti-trafficking policy requirement, explaining:

When selecting among competing applicants for discretionary funding, government can look to the relevant qualifications of the applicant to ensure the effectiveness of a government program. For example, government could disqualify tobacco merchants from an anti-smoking campaign, or require a documented pro-democracy record or policy for applicants to receive funding in a program to promote democratic principles and institutions abroad. This is not government imposition of policies upon private actors; rather, it is government selection, by transparent means, of the best suited applicants. Such criteria are not unconstitutional conditions, but rather qualifications akin to an individual’s qualifications to carry out a job[.]

We contend that, last time around, the Supreme Court got it wrong.

It only makes sense . . . to say that a group like NORML (opposing bans on marijuana) has no First Amendment right to insist upon receipt of grants under a government program to combat the use of marijuana, and that the Socialist Party USA similarly has no First Amendment right to demand inclusion in a program of grants to further free market capitalism.

To be sure, these examples are easy because the entities have policies that are plainly incompatible with the government’s adopted policy position. But the principle extends beyond such easy cases. Congress is certainly entitled to judge that those with a demonstrated commitment are more likely to be dependable and effective in carrying out the program as Congress designed it.

As the Supreme Court acknowledged in its previous ruling: “Congress found that the ‘sex industry, the trafficking of individuals into such industry, and sexual violence’ were factors in the spread of the HIV/AIDS epidemic.” Why in the world, then, would it not be legitimate for Congress, when doling out money, to prefer those grantees who explicitly oppose such destructive practices – as we put it, “activities that contribute to the spread of the very pathologies the government program is trying to halt”?

We offered an analogy:

Consider a campaign to combat teen suicide. Certainly a government could prefer, when implementing such a program through private entities, to fund groups with strong, express policies against all suicides, rather than groups that favor, or take no position on, suicide for some cases (like assisted suicide for terminal illness). The government could rightly judge that an entity’s retreat in principle from a condemnation of all suicides weakens its credibility or effectiveness in combating the scourge of teen suicide.

But while we defended the anti-trafficking policy requirement, we emphasized that the requirement was limited to discretionary funding of programs that target an evil that corresponds to the policy in question.

As our brief pointed out, the essential protections of the First Amendment would not allow a government to use the dispensing of grants to demand a more general “loyalty test” vis-à-vis government policy positions.

In such cases, the policy requirement would not be a related eligibility criterion, but rather an attempt by government to leverage policy agreement through unrelated funding strings.

More pointedly, we explained:

Where the government denies generally available public benefits because the target declines to adopt a particular policy – e.g., . . . no access to a forum for speech by those who refuse to take the position that all religions are equally valid – this blatantly infringes upon the First Amendment right to free speech (and freedom of thought as well).  The government cannot make ideological conformity the price of the incidents of citizenship.

Hence, it would violate the First Amendment were the government to “extract a pledge of submission to a currently regnant ideology or else impose second-class status upon the population it governs.” But here, by contrast, the statutory requirement that grantees have an express policy against trafficking is, as Justice Scalia phrased it back in 2013, “nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy.”

The Supreme Court is scheduled to hear oral arguments in the case on March 25th and will likely issue its decision by the end of June.